Butler Hall Terrace Restaurant

National Labor Relations Board - Board Decisions

Nov 30, 1999

330 N.L.R.B. 41 (N.L.R.B. 1999)

330 NLRB No. 41
1
NOTICE: This opinion is subject to formal revision before publica-
tion in the bound volumes of NLRB decisions. Readers are re-
quested to notify the Executive Secretary, National Labor Rela-
tions Board, Washington, D.C. 20570, of any typographical or
other formal errors so that corrections can be included in the
bound volumes.
Butler Hall Terrace Restaurant, Inc. and Hotel Em-
ployees and Restaurant Employees Union, Local
100, of New York, New York and Vicinity. Case
2–CA–32090
November 30, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
Upon a charge and amended charges filed by the Un-
ion on March 25, April 22, and June 8, 1999, the General
Counsel of the National Labor Relations Board issued a
complaint on June 28, 1999, against Butler Hall Terrace
Restaurant, Inc., the Respondent, alleging that it has
violated Section 8(a)(1) and (5) of the National Labor
Relations Act. Although properly served copies of the
charges and complaint, the Respondent failed to file an
answer.
On November 1, 1999, the General Counsel filed a
Motion for Summary Judgment with the Board. On No-
vember 5, 1999, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board's Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if an answer is not filed within
14 days from service of the complaint, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letter dated August 17, 1999, notified the Respondent
that unless an answer were received by August 31, 1999,
a Motion for Summary Judgment would be filed.
In addition, according to the uncontradicted allegations
of the General Counsel’s motion, on about September 2,
1999, the Region received a copy of its August 17, 1999
letter to the Respondent stapled to a United States Bank-
ruptcy Court Proof of Claim form. This material had
been sent to the Region by John Pereira, the trustee for
the Respondent’s bankrupt estate. In a subsequent tele-
phone conversation, Pereira informed the General Coun-
sel that the Respondent’s bankruptcy proceeding, which
had been a Chapter 11 proceeding, was recently con-
verted to a Chapter 7 proceeding.1 Pereira also told the
General Counsel that he was responsible for the Respon-
dent’s estate and that he receives all mail sent to the Re-
spondent. Pereira advised the General Counsel to file a
proof of claim with the bankruptcy court. The General
Counsel informed Pereira that the General Counsel
would file a Motion for Summary Judgment based on the
Respondent’s failure to file an answer to the complaint.
Pereira stated that he would not have any objection to
such a motion. On about September 9, 1999, the General
Counsel sent Pereira a letter confirming this telephone
conversation.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel's Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New York
corporation with an office and place of business at 400
West 119th Street, New York, New York, has been en-
gaged in the operation of a restaurant. Annually, in con-
ducting its business operations described above, the Re-
spondent derives gross revenues in excess of $500,000,
and purchases and receives at its facility goods valued in
excess of $5000 directly from points located outside the
State of New York. We find that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is
a labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time kitchen, dining
room, and bar employees employed by the Respondent
in the job classifications specifically set forth in Sched-
ule A of the collective bargaining agreement that was
in effect between the Union and the Respondent from
October 1, 1988, through September 30, 1991, exclud-
ing managerial employees, clerical employees, office
employees, professional employees, confidential em-
ployees, guards, supervisors as defined in the National
Labor Relations Act, and all other employees.

1 It is well established that the institution of bankruptcy proceedings
does not deprive the Board of jurisdiction or authority to entertain and
process an unfair labor practice case to its final disposition. See, e.g.,
Cardinal Services, 295 NLRB 933 fn. 2 (1989), and cases cited there.
Board proceedings fall within the exception to the automatic stay provi-
sion for proceedings by a governmental unit to enforce its police or
regulatory powers. See id., and cases cited therein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
At all material times, the Union has been the desig-
nated exclusive collective-bargaining representative of
the unit and has been recognized as such representative
by the Respondent. This recognition has been embodied
in successive collective-bargaining agreements, the most
recent of which was effective from October 1, 1988,
through September 30, 1991, and supplemented by
agreements effective from October 1, 1991, through
September 30, 1995, and from October 1, 1995, through
October 31, 1998. At all material times, based on Sec-
tion 9(a) of the Act, the Union has been the exclusive
collective-bargaining representative of the unit.
On January 19 and February 22, 1999, the Union, by
letter, requested that the Respondent furnish the Union
with the following information: a list of all bargaining
unit employees, which shows each employee’s name,
address, telephone number, social security number, clas-
sification, date of hire, and wage rate.
With the exception of employee social security num-
bers, the information requested by the Union is necessary
for, and relevant to, the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the employees in the unit set forth above.2
Since approximately January 19, 1999, the Respondent
has failed and refused to furnish the Union with the in-
formation requested by it.
On January 11 and 19 and February 22, 1999, the Un-
ion, by letters from its president, Henry Tamarin, re-
quested that the Respondent meet and bargain collec-
tively with the Union, as the exclusive collective-
bargaining representative of the unit, for a successor
collective-bargaining agreement to replace the one that
expired on October 31, 1998. In late January 1999, the
Union, by Tamarin, repeated the aforementioned bar-
gaining request.
Since approximately January 11, 1999, the Respondent
has failed and refused to bargain with the Union for a
successor collective-bargaining agreement.
The most recent collective-bargaining agreement be-
tween the Union and the Respondent requires the Re-
spondent to make monetary contributions to the Union’s
Welfare Fund and the Union’s Pension Fund by no later
than the 15th day of each month for the preceding month
for each day the employees in the unit receive, earn, or
accrue pay.
Since approximately December 15, 1998, the Respon-
dent has failed and refused to make payments to the Wel-
fare Fund and the Pension Fund, as required by the col-
lective-bargaining agreement. These subjects relate to

2 The Board has held that social security numbers are not presump-
tively relevant. Accordingly, in the absence of a showing here of their
potential or probable relevance, we dismiss the allegation concerning
the failure to provide social security numbers. See American Gem
Sprinkler Co., 316 NLRB 102, 104 fn. 7 (1995); Turner-Brooks of
Ohio, 310 NLRB 856, 857 fn. 1 (1993); and Sea-Jet Trucking Corp.,
304 NLRB 67 (1991).
wages, hours, and other terms and conditions of em-
ployment of the unit and are mandatory subjects for the
purposes of collective bargaining.
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to this conduct and the effects
of this conduct.
CONCLUSIONS OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees within the meaning of Section
8(d) of the Act, and has thereby engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (5), and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) of the Act, we shall order the Respondent to rec-
ognize and bargain with the Union as the exclusive rep-
resentative of the unit employees concerning a successor
collective-bargaining agreement to replace the contract
that expired on October 31, 1998. We also shall order
the Respondent to supply the Union with unit employees’
names, addresses, telephone numbers, job classifications,
dates of hire, and wage rates.
Further, we shall order the Respondent to make the
contractually required contributions to the Union’s Wel-
fare Fund and the Union’s Pension Fund on behalf of the
unit employees. In addition, we shall order the Respon-
dent to make its unit employees whole by making all
contractually required contributions to the funds that it
failed to make since about December 15, 1998, including
any additional amounts applicable to such delinquent
payments as determined pursuant to Merryweather Opti-
cal Co., 240 NLRB 1213, 1216 (1979). The Respondent
also shall reimburse unit employees for any expenses
ensuing from the Respondent’s failure to make such re-
quired contributions, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940
(9th Cir. 1981), and shall make them whole for any
losses attributable to the Respondent’s failure to abide by
the terms of the collective-bargaining agreement, such
amounts to be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).3

3 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
BUTLER HALL TERRACE RESTAURANT 3
ORDER
The National Labor Relations Board orders that the
Respondent, Butler Hall Terrace Restaurant, Inc., New
York, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with Hotel Employ-
ees and Restaurant Employees Union, Local 100, of New
York, New York and Vicinity, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time kitchen, dining
room, and bar employees employed by the Respondent
in the job classifications specifically set forth in Sched-
ule A of the collective bargaining agreement that was
in effect between the Union and the Respondent from
October 1, 1988, through September 30, 1991, exclud-
ing managerial employees, clerical employees, office
employees, professional employees, confidential em-
ployees, guards, supervisors as defined in the National
Labor Relations Act, and all other employees.
(b) Failing to furnish the Union with information that
is relevant and necessary to its role as the exclusive col-
lective-bargaining representative of the unit employees.
(c) Failing to make contributions to the Union Welfare
Fund and the Union Pension Fund on behalf of the unit
employees as required by the Respondent’s most recent
collective-bargaining agreement with the Union.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the unit employees concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(b) Furnish the Union with the names, addresses, tele-
phone numbers, job classifications, dates of hire, and
wage rates of all unit employees.
(c) Make all delinquent contributions to the Union
Welfare Fund and the Union Pension Fund required by
the collective-bargaining agreement, and reimburse the
funds for its failure to do so since about December 15,
1998, as set forth in the remedy section of this decision.
(d) Make whole the unit employees, by reimbursing
them for any expenses ensuing from its failure to make
the required contributions to the Union Welfare Fund and
the Union Pension Fund, and for any losses attributable

quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, but the amount of such reimburse-
ment will constitute a setoff to the amount that the Respondent other-
wise owes the fund.
to the Respondent’s failure to abide by the terms of the
collective-bargaining agreement, as set forth in the rem-
edy section of this decision.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in New York, New York, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
2, after being signed by the Respondent's authorized rep-
resentative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since December
15, 1998.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. November 30, 1999
Sarah M. Fox, Member
Wilma B. Liebman, Member
Peter J. Hurtgen, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

4 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT fail and refuse to bargain with Hotel Em-
ployees and Restaurant Employees Union, Local 100, of
New York, New York and Vicinity, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time kitchen, dining
room, and bar employees employed by us in the job
classifications specifically set forth in Schedule A of
the collective bargaining agreement that was in effect
between the Union and us from October 1, 1988,
through September 30, 1991, excluding managerial
employees, clerical employees, office employees, pro-
fessional employees, confidential employees, guards,
supervisors as defined in the National Labor Relations
Act, and all other employees.
WE WILL NOT fail to furnish the Union with information
that is relevant and necessary to its role as the exclusive
collective-bargaining representative of the unit employ-
ees.
WE WILL NOT fail to make contributions to the Union
Welfare Fund and the Union Pension Fund on behalf of
the unit employees as required by our most recent col-
lective-bargaining agreement with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the ex-
clusive representative of the unit employees concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement.
WE WILL furnish the Union with the names, addresses,
telephone numbers, job classifications, dates of hire, and
wage rates of all unit employees.
WE WILL make all delinquent contributions to the Un-
ion Welfare Fund and the Union Pension Fund required
by the collective-bargaining agreement, and reimburse
the Funds for our failure to do so since about December
15, 1998.
WE WILL make whole the unit employees, by reim-
bursing them for any expenses ensuing from our failure
to make the required contributions to the Union Welfare
Fund and the Union Pension Fund, and for any losses
attributable to our failure to abide by the terms of the
collective-bargaining agreement, with interest.
BUTLER HALL TERRACE RESTAURANT, INC.