Steak Loft International

National Labor Relations Board - Board Decisions

Sep 29, 1977

232 N.L.R.B. 577 (N.L.R.B. 1977)

STEAK LOFT INTERNATIONAL
Steak Loft International, Inc. and Peter Scally. Case
29-CA-4833
September 29, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on January 22, 1976, by Peter
Scally, an individual, and duly served on Steak Loft
International, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
29, issued a complaint on May 28, 1976, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(l), (3), and (4) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that since on or about
July 22, 1975, Respondent interfered with, restrained,
and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act by discriminating
against Peter Scally by assigning him less desirable
workdays, work stations, and start times, and that
Respondent engaged in the conduct described above
because said employee had assisted Local 650, Chain
Restaurant Employees' Union, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, and Public Service Employees Union,
Local 80, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
which are and at all times material herein have been
labor organizations within the meaning of Section
2(5) of the Act, and because said employee had
previously filed a charge against Respondent in Case
29-CA-4047, and had given testimony under the
Act.' Although duly served with a complaint,
Respondent failed to file an answer thereto.
On July 5, 1977, counsel for the General Counsel,
hereinafter the General Counsel, filed directly with
the Board a Motion for Summary Judgment based
on Respondent's failure to file an answer to the
complaint. Subsequently, on July 18, 1977, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
' In Case 29-CA-4047, el at., pursuant to a National Labor Relations
Board Decision and Order dated August 25, 1975 (not reported in bound
volumes of Board Decisions), Respondent was ordered to cease and desist
from, inter alia, assigning any employee to less desirable work stations or
providing any employee with a reduction in employment because said
232 NLRB No. 94
Counsel's Motion for Summary Judgment should not
be granted. Respondent did not file a response to the
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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:
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 complaint,
unless the respondent is without knowledge, in
which case the respondent 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 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
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
Respondent specifically stated that unless an answer
to the complaint was filed within 10 days of service
thereof "all the allegations in the Complaint shall be
deemed to be admitted by it to be true and may be so
found by the Board." Respondent has acknowledged
receipt and due service of said complaint and notice
of hearing. On or about September 7 and October 12,
1976, a settlement agreement was entered into
between Respondent and Scally whereby and where-
in Respondent agreed it would not engage in
violations of the Act by certain conduct and acts
described in the settlement agreement and referred to
above and whereby Respondent further agreed that
it would take certain affirmative action to remedy the
effects of its alleged unfair labor practices, including
inter alia the payment by Respondent to Scally of an
amount to make him whole for the alleged discrimi-
nation against him. On October 19, 1976, based on
the representations of the Respondent that it would
comply with the provisions of said settlement
employee joins or assists Local 650, Local 80, or any other labor
organization, or because said employee engaged in any other concerted
activity for the purposes of collective bargaining or mutual aid or protection.
The Board's Order was enforced by the U.S. Court of Appeals for the
Second Circuit on November 20, 1975.
577
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement, the Regional Director for Region 29
approved the said settlement agreement and thereby,
by the terms of the agreement, withdrew the
complaint and notice of hearing previously issued.
The General Counsel further states in his Motion for
Summary Judgment that since on or about October
19, 1976, Respondent has failed and refused to pay
Peter Scally the sum previously agreed to by and
between the parties as part of the settlement
agreement. Further, according to the allegations of
the Motion for Summary Judgment, Regional Office
personnel attempted to contact Ian Schrager, counsel
for Respondent, on several occasions with regard to
the moneys owed by Respondent pursuant to the
settlement agreement.2
On March 21, 1977, based on the failure and
refusal of Respondent to comply with the terms of
the settlement agreement, the Regional Director for
Region 29 issued an order withdrawing his approval
of the settlement agreement and vacating and
revoking the same. Also on March 21, 1977, a
complaint and notice of hearing was issued in Case
29-CA-4833 which complaint requires Respondent,
pursuant to Sections 102.20 and 102.21 of the
Board's Rules, to file an answer to it. Said complaint
and notice of hearing were duly served on Respon-
dent as evidenced by a signed receipt therefor.
Further, on April 12, 1977, counsel for the General
Counsel sent a letter to Respondent and Respon-
dent's counsel by registered mail and regular mail,
advising them that they had not filed an answer to
the complaint in the required period (which had
expired on April 4, 1977) and noting that unless an
answer was filed immediately the General Counsel
would move for Summary Judgment. The letters
addressed to Respondent and counsel for the
Respondent which were sent by regular mail were
not returned. The registered letter sent to counsel for
Respondent was returned as unclaimed. However,
the return receipt for the letter sent to Respondent
was signed "Steven Rubell" and was returned as
received.
In view of Respondent's failure to file an answer to
the complaint under the rule set forth above and no
good cause having been shown for such failure, the
uncontroverted allegations of the complaint are
deemed admitted and are found to be true. Accord-
2 The motion sets forth that a Board agent attempted to speak with
counsel for Respondent by telephone on November 12, 16, and 18,
December 3, 6, 14, and 30, 1976, and January 28, 1977; and that on
November 18 and December 14, 1976. the Board agent spoke directly to
counsel and was told that payment would be made. In addition, the motion
submits that on various dates, including but not limited to February 10, 14,
and 22, counsel for the General Counsel attempted by telephone to speak
with counsel for Respondent. Counsel for the General Counsel was
informed that Respondent's counsel was otherwise engaged and would
return the telephone call; and, although advised that a complaint would
issue unless the aformentioned moneys were paid or unless said counsel
ingly, we shall grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent Steak Loft International, Inc., Steak
Loft, Inc., respectively and have been at all times
material herein corporations duly organized under
and existing by virtue of the laws of the State of
Delaware, with common ownership, officers, and
directors, and they constitute a single-integrated
business enterprise. Respondent International has
maintained its principal office and place of business
at 1501 Chapel Street, New Haven, Connecticut, and
has various other places of business in the States of
New York and Connecticut, including its restaurant,
operated by Steak Loft, Inc., which place of business
is maintained at 21-45 Utopia Parkway, Bayside,
New York, herein called the Bayside place of
business, where it is, and has been at all times
material herein, continuously engaged in the opera-
tion of a public restaurant and related services.
During the past year, which period is representative
of its annual operations generally, Respondent in the
course and conduct of its restaurant operations
derives gross revenues therefrom in excess of
$500,000. Also during the past year, which period is
representative of its annual operations generally,
Respondent, in the course and conduct of its
business, purchased and caused to be transported
and delivered to its Bayside place of business meats,
poultry, and other goods and materials valued in
excess of $50,000, of which goods and materials
valued in excess of $50,000 were transported and
delivered to its place of business in interstate
commerce directly from States outside the State in
which the restaurant is located.
We find, on the basis of the foregoing, 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
jurisdiction herein. 3
contacted counsel for the General Counsel, no response was ever received
from Respondent's counsel. Further, on various dates between February 22
and March 21. 1977, counsel for the General Counsel attempted to speak by
telephone to Steven Rubell, president of Respondent. Counsel for the
General Counsel was informed on all occasions that Respondent was
unavailable and would return the telephone call and although counsel for
the General Counsel again advised that a complaint would issue unless the
aforementioned moneys were paid or unless Respondent contacted counsel
for the General Counsel, no response was ever received from Rubell or any
other representative of Respondent.
3 Although we need not reach the question, we would find sufficient
578
STEAK LOFT INTERNATIONAL
II. THE LABOR ORGANIZATIONS INVOLVED
Local 650, Chain Restaurant Employees' Union,
Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO, and Public Service
Employees U,lion, Local 80, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, are, and have been at all times
material herein, labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent interfered with, restrained, and
coerced its employees in the exercise of their rights
guaranteed by Section 7 of the Act by engaging in
the following acts and conduct:
Since on or about July 22, 1975, until at least
December 28, 1975, Respondent discriminated
against the Charging Party by assigning him to less
desirable workdays, work stations, and start times,
because said employee had assisted Local 650 and
Local 80, had filed the charge in Case 29-CA-4047,
and had given testimony under the Act.
Accordingly, we find that by the aforesaid conduct
Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed them under Section 7 of the Act, and by
such conduct Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1),
(3), and (4) 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 as set forth in section 1, above, have a close,
intimate, 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 com-
merce.
v. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (4) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the unfair labor practices
committed by Respondent were of a character which
go to the very heart of the Act, we shall also order
basis for assertion ofjurisdiction over Respondent herein by virtue of the
Board's previous assertion of jurisdiction in Case 29-{A-047, el al, which
assertion was upheld by virtue of the enforcement of the Board's Order by
the U.S. Court of Appeals for the Second Circuit.
Respondent to cease and desist from infringing in
any other manner upon the rights of employees
guaranteed by Section 7 of the Act. We have found
that Respondent discriminated against the Charging
Party by assigning him to less desirable workdays,
work stations, and start times. We shall therefore
order that Respondent make said employee whole
for any loss of pay suffered because of the discrimi-
nation against him. Backpay shall be based upon the
earnings he normally would have received beginning
from July 22, 1975, until the date Respondent ceases
its discrimination against him. The backpay shall be
computed on the basis set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest com-
puted in accordance with the formula set forth in
Florida Steel Corporation, 231 NLRB 651 (1977).4
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
i. Steak Loft International, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 650, Chain Restaurant Employees'
Union, Hotel and Restaurant Employees and Bar-
tenders International Union, AFL-CIO, and Public
Service Employees Union, Local 80, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, are, and have been at
all times material herein, labor organizations within
the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed
in Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
4. By discriminating against the Charging Party
because said employee had assisted Local 650 and
Local 80, Respondent discriminated in regard to the
hire and tenure of employment of employees, thereby
discouraging membership in or activities on behalf of
a labor organization, and Respondent has thus
engaged in unfair labor practices within the meaning
of Section 8(aX3) and (1) of the Act.
5. By discriminating against the Charging Party
herein because he filed a charge in Case 29-CA-4047
and gave testimony under the Act, Respondent has
engaged in unfair labor practices within the meaning
of Section 8(aX4) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
4 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Steak Loft International, Inc., Bayside, New York,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Assigning employees less desirable workdays,
work stations, or start times because said employees
have assisted Local 650, Chain Restaurant Employ-
ees' Union, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO; Public
Service Employees Union, Local 80, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America; or any other labor
organization, because they have filed charges with
the National Labor Relations Board under the
National Labor Relations Act, or because they have
given testimony or statements under such Act.
(b) In any other manner interfering with, restrain-
ing, 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) Make whole employee Peter Scally for any
losses he may have suffered by reason of the
discrimination against him, as set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its Utopia Parkway, Bayside, New York,
location copies of the attached notice marked
"Appendix." 5 Copies of said notice, on forms
provided by the Regional Director for Region 29,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and shall be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
5 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 assign our employees to less
desirable workdays, work stations, or start times
because of their membership in or activities on
behalf of Local 650, Chain Restaurant Employ-
ees' Union, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO;
Public Service Employees Union, Local 80,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America; or
any other labor organization.
WE WILL NOT assign our employees to less
desirable workdays, work stations, or start times
because they have filed charges under the
National Labor Relations Act or given testimony
to the National Labor Relations Board or any
agent thereof.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Section
7 of the Act.
WE WILL make whole employee Peter Scally for
any losses he suffered by reason of our discrimi-
nation against him, with interest.
STEAK LOFT
INTERNATIONAL, INC.
580