Pump Room Restaurant

National Labor Relations Board - Board Decisions

Nov 6, 1972

199 N.L.R.B. 1276 (N.L.R.B. 1972)

1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K.P.W.H., Inc. d/b/a Pump Room Restaurant (For-
merly captioned Pump Room Restaurant ) and Los
Angeles Joint Executive Board of Hotel and Restau-
rant Employees and Bartenders Union , AFL-CIO.
Case 31-CA-3019
November 6, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Upon a charge filed on April 5, 1972, by Los
Angeles Joint Executive Board of Hotel and Restau-
rant Employees and Bartenders Union, AFL-CIO,
herein called the Union, and duly served on
K.P.W.H., Inc. d/b/a Pump Room Restaurant, here-
in called the Respondent, the General Counsel of the
National Labor Relations Board, by the Acting Re-
gional Director for Region 31, issued a complaint and
amendment to complaint on April 27 and July 17,
1972, respectively, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint and
amendment, and notice of hearing before an Admin-
istrative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that (1) on February 2,
1972, following a Board election in Case 31-RC-1886,
the Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate for the purposes
of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment,' (2) commencing on or
about February 2, 1972, and continuing to date, the
Union has requested and is requesting the Respon-
dent to bargain collectively with respect to rates of
pay, wages, hours of employment, and other terms
and conditions of employment as the exclusive repre-
sentative of all the employees of the Respondent in
the unit; and (3) commencing on or about February
2, 1972, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
'Official notice is taken of the record in the representation proceeding,
Case 31-RC-1886 , as the term "record" is defined in Secs . 102.68 and 102
69(f) of the Board 's Rules and Regulations , Series 8, as amended See LTV
Electrosystems, Inc., 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
Golden Age Beverage Co, 167 NLRB 151; Intertype Co v Penello, 269 F
Supp. 573 (D C Va., 1967); Follett Corp., 164 NLRB 378, enfd 397 F 2d 91
(C.A. 7, 1968), Sec. 9(d) of the NLRA.
ing representative. Accordingly, the, amended com-
plaint further alleges that, for the aforesaid acts, the
Respondent has violated Section 8(a)(5) and (1) of the
Act.
The Respondent failed to file an answer to the
complaint or to the amendment to the complaint. On
August 4, 1972, counsel for the General Counsel filed
directly with the Board a motion for summary judg-
ment based upon Respondent's failure to file an an-
swer as required by Section 102.20 of the Board's
Rules and Regulations, Series 8, as amended. Subse-
quently, on August 15, 1972, the Board issued an
order transferring the proceeding to the Board and a
notice to show cause why the General Counsel's mo-
tion for summary judgment should not be granted.
Respondent failed to file a response to notice to show
cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regulations,
Series 8 , as amended, provides as follows:
The respondent shall, within 10 days from the service
of the complaint, file an answer thereto. The respon-
dent shall specifically admit, deny, or explain each of
the facts alleged in the complaint, unless the respon-
dent is without knowledge, in which case the respon-
dent shall so state, such statement operating as a denial.
All allegations in the complaint, if no answer is filed,
or any allegation in the complaint not specifically de-
wed or explained in an answer filed, unless the respon-
dent shall state in the answer that he is without
knowledge, shall be deemed to be admitted to be true
and shall be so found by the Board, unless good cause
to the contrary is shown.
The complaint and notice of hearing served on the
Respondent specifically stated that unless an answer was
filed to the complaint within 10 days from the service there-
of "all of the allegations in the Complaint shall be deemed
to be admitted to be true and may be so found by the
Board." As noted, the Respondent did not at any time file
an answer to the complaint or its amendement, nor did it
file a response to the notice to show cause .2 No good cause
to the contrary having been shown, in accordance with the
rules set forth above, the allegations in the complaint are
deemed to be admitted and are found to be true.3 We shall,
accordingly, grant the motion for summary judgment.
On the basis of the entire record, the Board makes the
following:
2 It is also to be noted that the Respondent failed to respond, appear, or
cooperate with the Board in representation Case 31-RC-1866.
3 Blue and White Bus Company of Waits, Inc, 198 NLRB No. 134.
199 NLRB No. 187
PUMP ROOM RESTAURANT 1277
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
in said unit on February 2, 1972 , and the Union con-
tinues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
The Respondent , a California corporation, at all
times material herein has operated and is now operat-
ing a restaurant in Sherman Oaks , California . In cal-
endar year 1971, Respondent , in the course and
conduct of its business operations, derived revenues
in excess of $500 ,000 from the retail sale of liquor,
food, and services to the public . During the same
calendar year , 1971, Respondent purchased and re-
ceived goods valued in excess of $10,000 , imported
directly to Respondent from States of the United
States other than California.
We find , on the basis of the foregoing , that Re-
spondent is, and has been at all times material herein,
an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act , and that
it will effectuate the policies of the Act to assert juris-
diction herein.
II THE LABOR ORGANIZATION INVOLVED
Los Angeles Joint Executive Board of Hotel and
Restaurant Employees and Bartenders Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All bartenders, waitresses , busboys, cooks,
dishwashers , hosts, hostesses , and cashiers em-
ployed by Respondent at its Sherman Oaks, Cali-
fornia , restaurant , excluding all other employees,
office clerical employees, guards and supervisors
as defined in the Act.
2. The certification
On January 20, 1972 , a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 31 , designated the Union as their
representative for the purpose of collective bargaining
with the Respondent . The Union was certified as the
collective-bargaining representative of the employees
B. The Request To Bargain and Respondent 's Refusal
Commencing on or about February 2 , 1972, and
at all times thereafter , the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit . Commencing
on or about February 2, 1972, and continuing at all
times thereafter to date , the Respondent has refused,
and continues to refuse , to recognize and bargain with
the Union as the exclusive representative for collec-
tive bargaining of all employees in said unit.
Accordingly , we find that the Respondent has,
since February 2, 1972, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit , and that, by such refusal , Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
COMMERCE UPON
The activities of Respondent set forth in section
III, above , occurring in connection with its operations
described in section I, above , have a close , intimate,
and substantial relationship to trade, traffic , and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8 (a)(5) and ( 1) of the Act , we shall
order that it cease and desist therefrom , and, upon
request , bargain collectively with the Union as the
exclusive representative of all employees in the appro-
priate unit , and, if an understanding is reached, em-
body such understanding in a signed agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit . See Mar-Jac Poultry Company, Inc., 136 NLRB
785; Commerce Company d/b/a Lamar Hotel, 140
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert.
denied 379 U.S. 817; Burnett Construction Company,
149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. K.P.W.H., Inc. d/b/a Pump Room Restau-
rant, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Los Angeles Joint Executive Board of Hotel
and Restaurant Employees and Bartenders Union,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act. ,
3. All bartenders, waitresses, busboys, cooks,
dishwashers, hosts, hostesses , and cashiers employed
by Respondent at its Sherman Oaks, California, res-
taurant, excluding all other employees, office clerical
employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since February 2, 1972, the above-named la-
bor organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about February 2, 1972, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent in the appropriate unit, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent,
K.P.W.H., Inc. d/b/a Pump Room Restaurant, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and condi-
tions of employment, with Los Angeles Joint Execu-
tive Board of Hotel and Restaurant Employees and
Bartenders Union, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit:
All bartenders, waitresses, busboys, cooks,
dishwashers, hosts, hostesses, and cashiers em-
ployed by Respondent at its Sherman Oaks, Cali-
fornia, restaurant, excluding all other employees,
office clerical employees, guards and supervisors
as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Sherman Oaks, California, restau-
rant copies of the attached notice marked "Appen-
dix."4 Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Los
PUMP ROOM RESTAURANT
Angeles Joint Executive Board of Hotel and Res-
taurant Employees and Bartenders Union, AFL-
CIO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request , bargain with the
above-named Union , as the exclusive representa-
tive of all employees in-the bargaining unit de-
scribed below , with respect to rates of pay , wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement.'
The bargaining unit is:
All bartenders , waitresses , busboys , cooks,
dishwashers , hosts , hostesses , and cashiers em-
ployed by Respondent at its Sherman Oaks,
California , restaurant, excluding all other em-
1279
ployees, office clerical employees , guards and
supervisors as defined in the Act.
K.P.W.H., INC. D/B/A PUMP
ROOM RESTAURANT
(Employer)
Dated By .
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 -consecu-
tive days from the date of posting and must not be
altered, defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , Federal Building , Room 12100, 11000
Wilshire Boulevard, Los Angeles , California 90024,
Telephone 213-824-7352.