Scotch & Sirloin Restaurant; J&F Enterprises, Inc.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 408 (N.L.R.B. 1989)

408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
M.B.K., Inc. d/b/a Scotch & Sirloin Restaurant;
J&F Enterprises, Inc. and Culinary Alliance &
Bartenders Local No. 498, Hotel and Restau-
rant Employees and Bartenders International
Alliance, AFL-CIO. Cases 31-CA-11628 and
31-CA-11796
May 31, 1989
SECOND SUPPLEMENTAL DECISION
AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRAcRAFr
On March 28, 1984 , the National Labor Rela-
tions Board issued a Decision, Order, and Direc-
tion of Second Election in this proceeding,' in
which the Board , inter alia, ordered the Respond-
ent, M .B.K., Inc . d/b/a Scotch & Sirloin Restau-
rant (M.B.K.), to make whole certain employees
for any loss of earnings suffered as a result of the
Respondent 's unfair labor practices . On June 13,
1985, the United States Court of Appeals for the
Ninth Circuit entered a judgment enforcing the
Board's Order . 2 A controversy having arisen over
the amount of backpay due under the Board's
Order, as enforced by the court , the Acting Re-
gional Director for Region 31 issued and duly
served on the Respondents , M.B.K. and J&F En-
terprises, Inc. (J&F), a backpay , and an amended
backpay specification and notice of hearing alleg-
ing the amounts of backpay due the discriminatees
and notifying the Respondents that they must file a
timely answer complying with the Board 's Rules
and Regulations. On September 12, 1985, the Re-
spondents M.B.K. and J&F filed a joint answer to
the amended backpay specification.
On October 1, 1985 , the General Counsel filed
directly with the Board a "Motion to Transfer
Case to and Continue Proceedings Before the
Board, to Strike Respondent's [sic] Answer, and
for Summary Judgment," with exhibits attached.
The General Counsel alleged that the Respondents'
answer failed to conform to the requirements of
Section 102 .54(b) and (c) of the Board 's Rules and
Regulations.
On October 3, 1985 , the Board issued an order
transferring the proceeding to the Board and a
Notice to Show Cause why the General Counsel's
motion should not be granted. The Respondents
failed to file a response . Thereafter , on November
19, 1985, the General Counsel filed with the Board
a supplemental motion amending the motion for
summary judgment , which described the various
manners of service on the Respondents , e.g., on
' 269 NLRB 436.
$ Unpublished.
their attorney and at their mutual principal place of
business , and contended that sufficient service had
been made.
On November 21, 1985, the General Counsel
filed a corrected copy of the supplemental motion,
which corrected typographical errors . On March
11, 1986, the General Counsel filed a second cor-
rected copy of the supplemental motion with ex-
hibits attached , which were inadvertently omitted
from the November 21, 1985 copy of the supple-
mental motion.
On March 27, 1986, the Respondents' counsel
filed an opposition to Motion for Summary Judg-
ment with a declaration attached.
On February 29, 1988 , the Board issued a Sup-
plemental Decision and Order Remanding in this
proceeding . 3 In the Order , the Board struck por-
tions of the Respondents ' answer, and granted sum-
mary judgment as to all allegations of the amended
backpay specification except for those concerning
the alleged single-employer status of Respondents
M.B.K. and J&F . The Board remanded the case to
the Regional Director for the sole purpose of issu-
ing a notice of hearing to determine the alleged
single-employer status of Respondents M.B.K. and
J&F.
On October 25, 1988 , pursuant to the Board's
Order, the Regional Director issued an order reset-
ting hearing . Subsequent to the issuance of the
order resetting hearing, but prior to the commence-
ment of the hearing, after supplemental investiga-
tion, the Regional Director concluded that Re-
spondent J&F is not a functioning entity, has no
assets, and has no ability or capacity to provide a
monetary remedy for any of the unfair labor prac-
tices found by the Board. Accordingly , the Region-
al Director administratively postponed the hearing
indefinitely.
By letter dated December 20, 1988, the General
Counsel notified the Charging Party of the Re-
gion 's intention to delete all references to Respond-
ent J&F from the specification, and apprised the
Charging Party of its appeal rights . The Charging
Party has not appealed , nor made any objection to,
the proposed deletion of Respondent J&F from the
specification.
On March 15, 1989, the General Counsel filed
directly with the Board a "Motion to Transfer
Case to and Continue Proceedings Before the
Board , to Delete Respondent J&F Enterprises, Inc.
from the Specification, and for Make-Whole
Order," with exhibits attached . The General Coun-
sel moves that : (1) all reference to Respondent J&F
and all reference to the alleged single-employer
s 287 NLRB 1318.
294 NLRB No. 28
SCOTCH & SIRLOIN RESTAURANT
status of Respondents M .B.K. and J&F be deleted
from the backpay specification ; and (2) a make-
whole order be issued providing the appropriate
predicate for enforcement and other proceedings as
warranted.
On March 22 , 1989, the Board issued an order
transferring the proceeding to the Board and a
Notice to Show Cause why the General Counsel's
motion should not be granted . The Respondent and
the Charging Party failed to file a response . The al-
legations in the motion therefore are undisputed.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record , the Board makes the fol-
lowing findings . Based on the uncontroverted alle-
gations in the General Counsel 's motion to which
no response has been filed , we shall delete all refer-
ences to Respondent J&F and to the alleged single-
employer status of Respondents M.B.K. and J&F
from the amended specification. Further , we con-
clude that the net backpay due the discriminatees is
as stated in the amended backpay specification and
we will order payment by the Respondent M.B.K.
to the discriminatees.
ORDER
409
It is ordered that all reference to Respondent
J&F Enterprises , Inc., and all reference to the al-
leged single-employer status of Respondents
M.B.K., Inc . d/b/a Scotch & Sirloin Restaurant
and J&F Enterprises , Inc., as set forth in the cap-
tion and in paragraph 10 of the amended specifica-
tion , be deleted from the amended specification.
IT IS FURTHER ORDERED that the Respondent
M.B.K., Inc . d/b/a Scotch & Sirloin Restaurant,
Ventura , California , its officers, agents, successors,
and assigns , shall make whole the discriminatees
named below by paying them the amounts follow-
ing their names, plus interest accrued to the date of
payment as prescribed in New Horizons for the Re-
tarded,4 minus tax withholdings required by Feder-
al and state laws:
Sandra (Sargent) Hance $24 ,291.54
Larry Flaitz 47,824.36
D. Wesley Replogle 65,206.80
4 283 NLRB 1173 (1987)