Nottingham Restaurant

National Labor Relations Board - Board Decisions

Jul 19, 1979

243 N.L.R.B. 567 (N.L.R.B. 1979)

NOI'IN(iHtAM R:SIALIRANI'
E. E. Sousa, Inc. d/b/a Nottingham Restaurant and
Hotel and Restaurant Employees and Bartenders
Union, Local 28, AFL-CIO. C'ase 32 ('A 241 (for-
merlv 20-CA 13026)
July 19, 1979
DECISION AND ORDER
BY CItiARNIAN FANNING ANt) MI MlbI RS JI NKINS
ANI) MURPIY
Upon a charge filed on June 17, 1977.1 hb Hotel
and Restaurant Employees and Bartenders Union.
Local 28. AFL CIO. herein called the Union. and
duly served on E. E. Sousa, Inc., d/h/a Nottingham
Restaurant, herein called Respondent, the General
Counsel of the National Labor Relations Board. by
the Regional Director for Region 32, issued a com-
plaint and notice of hearing on November 16. 1977,
alleging that Respondent had engaged in and was en-
gaging in certain unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the National abor Rela-
tions Act, as amended. Copies of the charge. com-
plaint, and notice of' hearing before an administrative
law judge were duly served on the parties to this pro-
ceeding. On November 25, 1977. the complaint was
amended by the Regional Director to allege addi-
tional violations of Section 8a)(1) of the Act. There-
after, Respondent. by its counsel, filed an answer to
the complaint and amendment to the complaint. In
its November 29. 1977, answer. Respondent admitted
certain allegations. denied others, and affirmativel
asserted that the complaint failed to state a claim
upon which relief may be granted, and that the Board
lacked jurisdiction. Respondent specifically denied all
allegations that it had committed unfair labor prac-
tices or engaged in conduct constituting such. Subse-
quently, on February 8. 1978. the Regional Director
amended the complaint to allege other violations of
Section 8(a)( I ) of the Act. Respondent. on February
13, 1978. answered the amendment, again denying
the commission of all unfair labor practices alleged.
An informal settlement agreement was entered into
by Respondent on February 22, 1978, and approved
by the Regional Director. The complaint was then
withdrawn. On August 24. 1978. the Regional Office
received notification that Respondent had declared
bankruptcy. Based upon Respondent's failure to dis-
charge its obligations under the terms of' the previ-
ously approved settlement agreement, the Acting Re-
' The original charge w;s amended bh lhc I nionn n Septerher 21. O()to
her 18. and November II. 1977. prlir t isiluance t .1 complin t .and ntltc
of healrlng.
gional l)irector subsequentl\ withdrew his approval
of that agreement. Thus. on December 21. 1978.2 the
Acting Regional Director issued an order withdra\v-
ing approval of' the settlement agreement. complaint.
and notice of' hearing, a cop\ of which was served on
Respondent and on all known counsel for Respon-
dent. ('ounsel for the 'Irustee in Bank ruptc. ho had
been served with the order withdraliing aploval of
the settlement ageemnent. complaint, and notice of
hearing, was notified bh letter dated JanuarI 30).
1979. that failure to file an answer within 10 da\s of
that date would result in counsel for the General
('ounsel's filing a Motion for Summarn .ludgment.t
Thereafter, on March 12. 1979. the G(eneral ('oun-
sel, hy counsel, tiled directly with the Board a Motion
for SummarN Judgment, with exhibits attiched, re-
questing issuance of a Board order based pon tlhe
allegations of the complaint. A\ siupplemenltall Inlello-
ranndum to his Motion for Sumilar\ Jr udtgmllnt iwas
filed bh the G(eneral Counsel on March 23 179. ()O
April 6 1979. the Board issued its order transfrring n
the proceeding to the Board and Notice To Shoa
Cause why the General (ounsel's Motion tfor Sum-
mary Judgment should not he granted. No response
to the Notice To Show (Cause has been recei ed hb
the Board.
Pursuant to the provisions of Section 3(h) of the
National Labor Relations A.ct as amen ded, the Na-
tional I ahbor Relations Board has delecgated its au-
thorit' in this proceeding to a three-memcber panlel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summarv Judgment
In the Motion for Summary Judgment herein.
counsel !r the Genera! (Counsel aers that neither
Respondent nor the trustee in hankruptcy4 has filed
an answer to the order withdrawing approval of the
settlement agreement. complaint, and notice of hear-
ing. and that tinder Section 102.20 of the National
Labor Relations Board Rules and Regulations. Series
8. as amended, the Board should find the allegations
of the complaint to be true and should issue an Order
based on such findings. Hloweer, as the Motion for
Summary Judgment correctly sets forth. Respondent
! Although in her Motion for Sulila.lr' Judgllllent ilnsel linr the (;cneral
(ounsel stales tha3 the order ius issied Nnxcnlhcr 21. 197 Ihis idate aIp-
pearh ito he an inlladerient crror nisialnuch a1 the rder i d.ilted I)eccnimber 2 1
1978.
O()n January 10. 1979. he Regional tirecor altl. fileCt! a prool i cimi11l
with the Bankruptc' ('OLrt tr the Northern i)litrict ( ilkrlla
4 In the supple enital nmemnranndu n tiled ni \I.crl 21. I)"), CiOlniicl tr
Ihe (Generia (osunel stated thlt the I instae in 1llmlkrilntp s i, hiarged i h
the proteti n 1 the interestl t1 crcdltirs. .nr l [hill 10iI l l t ' he rcsllt
Ior tiling an inlecr ill this tinler hitll ti1rletl icrn lhit Rcsponi dtil atld
1
knsll ouiin cl tr RcsI p ndcn l crt srcdl , il thic rde r itrld lit 11 o ll i hiln
tiled ani alisU.r
243 NLRB 13 No. 10)3
567
DI(CISIONS ()F NATIO()NAl. I.ABOR RELATIONS BOARD
did in fact file a timely answer to the original com-
plaint and amendment to the complaint on Novem-
her 29, 1977, and it also filed a timely answer to the
amendment to the complaint issued by the Regional
Director on February 8, 1978. In both answers, Re-
spondent denied the commission of any unfair labor
practices. Inasmuch as the substantive allegations of
the complaint and notice of hearing issued on No-
vember 16, 1977, and amendments thereto issued on
November 25. 1977, and February 8. 1978, are the
same as those contained in the order withdrawing ap-
proval of the settlement agreement, complaint, and
notice of hearing issued on December 21. 1978. Re-
spondent has in fact answered those allegations. In so
doing, Respondent has denied the commission of any
unfair labor practices, and thus has raised litigable
issues. In our view, granting a Motion for Summary
Judgment based on the application of Section 102.20
of the Board's Rules is not appropriate in such cir-
cumstances 5 We shall therefore deny the motion.
ORDER
It is hereby ordered that the General Counsel's
Motion tfor Summary Judgment in the above-cap-
tioned proceeding be, and it hereby is, denied.
II Is i:URIIIiR (RD)IRIED that the above-entitled
proceeding be, and it hereby is, remanded to the Re-
gional I)irector fr Region 32 fior further appropriate
action.
' Arlanric Buvines and ( onmunmt Deelopn'nt (C ,rporalflon. d/ ba 1WUSS
Rulrd, 236 NLRB 1529 (1978).