Rubattino's Restaurant

National Labor Relations Board - Board Decisions

Jun 8, 1976

224 N.L.R.B. 466 (N.L.R.B. 1976)

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert C Delancey d/b/a Rubattino 's Restaurant and
Hotel & Restaurant Employees & Bartenders Local
Union No . 596 Case 19-CA-8196
June 8, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
Upon a charge filed on November 28, 1975, by
Hotel & Restaurant Employees & Bartenders Local
Union No 596, herein called the Union, and duly
served on Robert C Delancey d/b/a Rubattino's
Restaurant, herein called the Respondent, the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 19, issued a
complaint and notice of hearing on January 16, 1976
With respect to the unfair labor practices, the com-
plaint alleges, in substance, that Respondent has re-
pudiated the terms of a collective-bargaining agree-
ment signed with the Union and, since September 3,
1975, has refused, upon request, to furnish the Union
payroll data and a list of employees Respondent
failed to file an answer
On March 15, 1976, the General Counsel, by coun-
sel, filed with the Board in Washington, D C, a Mo-
tion for Summary Judgment The Board, on March
19, 1976, issued an order transferring the proceeding
to the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted Respondent did not file a re-
sponse to the 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 Regula-
tions, Series 8, as amended, provides as follows
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial All allega-
tions in the complaint, if no answer is filed, or
any allegation in the complaint not specifically
denied or explained in an answer filed, unless
the respondent shall state in the answer that he
is without knowledge, shall be deemed to be ad-
mitted 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 states that unless an answer
to the complaint is filed by the Respondent within 10
days of service thereof "all of the allegations in the
Complaint shall be deemed to be admitted by it to be
true and may be so found by the Board " Further,
according to the Motion for Summary Judgment, on
March 1, 1976, counsel for the General Counsel per-
sonally contacted Respondent at his place of busi-
ness, notifying him of the consequences of failure to
file an answer and suggesting that Respondent en-
gage counsel, which Respondent indicated he would
not do
In view of Respondent's failure to file an answer,
under the rule set forth above, and no good cause
having been shown for such failure, the allegations of
the complaint are deemed and are found to be true
and we shall, accordingly, grant the Motion for Sum-
mary Judgment
On the basis of the entire record, the Board makes
the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a sole proprietorship engaged in the
restaurant business in Renton, Washington Respon-
dent is sole owner of another restaurant in Maple
Valley, Washington, which is not involved in this
complaint Respondent purchased the Renton res-
taurant on June 1, 1975 Between that time and Janu-
ary 1, 1976, Respondent grossed $55,000 a month
from its Renton and Maple Valley restaurants
The complaint further alleges, and we find, that
Respondent 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
Hotel & Restaurant Employees & Bartenders Lo-
cal Union No 596 is a labor organization within the
meaning of Section 2(5) of the Act
224 NLRB No 68
RUBATTINO'S RESTAURANT 467
III THE UNFAIR LABOR PRACTICES
A The Representation Proceeding
1 The unit
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
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 cooks, bartenders, waitresses and kitchen
helpers employed by Rubattino's Restaurant at
803 Third Street, South Renton, Washington,
excluding office clerical employees, guards, and
supervisors as defined in the Act
2 The representative status of the Union
On or about September 3, 1975, Respondent and
the Union executed an agreement recognizing the
Union as exclusive bargaining representative of em-
ployees in the unit described above Said agreement
was retroactive from August 1, 1975, and was to re-
main in effect until May 31, 1978 Since September 3,
1975, when Respondent recognized the Union as the
exclusive bargaining agent of the employees in the
above-mentioned appropriate unit, the Union has
been, and is now, the exclusive collective-bargaining
agent of the unit employees within the meaning of
Section 9(a) of the Act
B Requests To Bargain and Respondent's Refusals
At all times since September 3, 1975, the Union
has requested and Respondent has refused to supply
payroll data and a list of employees At all material
times Respondent, by its failure to abide by the sub-
stantive terms and conditions of the currently effec-
tive collective-bargaining agreement, has committed
a material breach of said agreement and has, in ef-
fect, repudiated said agreement
We, accordingly, find that Respondent, by the
conduct described above, has, since September 3,
1975, and at all times thereafter, refused to bargain
with the Union as the exclusive representative of the
employees in the appropriate unit, and has engaged
in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
V THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom and honor
the collective-bargaining agreement entered into on
September 3, 1975, and supply the payroll data and
list of employees requested by the Union
The Board, upon the basis of the foregoing facts
and the entire record, makes the following
CONCLUSIONS OF LAW
I Robert C Delancey d/b/a Rubattino's Restau-
rant is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 Hotel & Restaurant Employees & Bartenders
Local Union No 596 is a labor organization within
the meaning of Section 2(5) of the Act
3 All cooks, bartenders, waitresses and kitchen
helpers employed by Rubbatino's Restaurant at 803
Third Street, South Renton, Washington, excluding
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 on or about September 3, 1975, the
above-named labor organization has been and now is
the recognized and exclusive representative of all em-
ployees in the aforesaid appropriate unit for the pur-
pose of collective bargaining within the meaning of
Section 9(a) of the Act
5 By refusing on or about September 3, 1975, and
at all times thereafter, to honor and abide by the
collective-bargaining agreement and to provide the
Union with payroll data and a list of employees, Re-
spondent 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
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 mean-
ing 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
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Robert C Delancey d/b/a Rubattino's Restaurant,
South Renton, Washington, its officers, agents, suc-
cessors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Hotel & Restaurant Em-
ployees & Bartenders Local Union No 596 as the
exclusive bargaining representative of its employees
by refusing to provide to the Union information nec-
essary and relevant for effective collective bargain-
ing, and refusing to abide by and give force and ef-
fect to the substantive terms and conditions of the
collective-bargaining agreement executed by the par-
ties on or about September 3, 1975, in the following
appropriate unit
All cooks, bartenders, waitresses and kitchen
helpers employed by Rubbatino's Restaurant at
803 Third Street, South Renton, Washington,
excluding 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) Abide by and give force and effect to the sub-
stantive terms and conditions of the collective-bar-
gaining agreement executed by the parties on or
about September 3, 1975
(b) Provide payroll data and a list of employees to
Hotel & Restaurant Employees & Bartenders Local
Union No 596 which is necessary and relevant for
effective collective bargaining
(c) Post at its restaurant in South Renton, Wash-
ington, copies of the attached notice marked "Ap-
pendix " I Copies of said notice, on forms provided
by the Regional Director for Region 19, after being
duly signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
1 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'
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith
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 Hotel
& Restaurant Employees & Bartenders Local
Union No 596 as the exclusive bargaining rep-
resentative of our employees by refusing to pro-
vide to the Union information necessary and rel-
evant for effective collective bargaining, and WE
WILL NOT refuse to abide by and give force and
effect to the substantive terms and conditions of
the collective-bargaining agreement executed by
the parties on or about September 3, 1975, in the
following appropriate unit
All cooks, bartenders, waitresses and kitch-
en helpers employed by Rubattino's Restau-
rant at 803 Third Street, South Renton, Wash-
ington, excluding office clerical employees,
guards, and supervisors as defined in the Act
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 abide by and give force and effect to
the substantive terms and conditions of the col-
lective-bargaining agreement executed by the
parties on or about September 3, 1975
WE WILL provide payroll data and a list of em-
ployees to Hotel & Restaurant Employees &
Bartenders Local Union No 596 which is neces-
sary and relevant for effective collective bar-
gaining
ROBERT C DELANCEY d/b/a RUBATTINO'S
RESTAURANT