Capriccio Restaurant

National Labor Relations Board - Board Decisions

Sep 23, 1994

314 N.L.R.B. 1267 (N.L.R.B. 1994)

1267
314 NLRB No. 208
CAPRICCIO RESTAURANT
1 Any additional amounts due the welfare and pension funds men-
tioned in the judge’s remedy and recommended Order shall be com-
puted in accordance with the Board’s decision in Merryweather Op-
tical Co., 240 NLRB 1213, 1216 fn. 7 (1979). The reimbursement
of employees who suffered losses due to the Respondent’s failure to
make the fund payments shall be as prescribed in Kraft Plumbing
& Heating, 252 NLRB 891 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981). All payments shall be computed as prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), and interest shall be computed as prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1993.
R.R.R. Restaurant, Inc. d/b/a Capriccio Restaurant
and Hotel Employees and Restaurant Employ-
ees Union, Local 100, of New York, New York
and Vicinity, AFL–CIO. Case 2–CA–26658
September 23, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On June 6, 1994, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respond-
ent filed exceptions, and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, R.R.R. Restaurant, Inc.
d/b/a Capriccio Restaurant, New York, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Kevin Smith and James Paulsen, Esqs., for the General
Counsel.
Leon Reich, Esq., for the Respondent.
Stephen O’Beirne, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on April 18, 1994, in New York, New
York. The complaint herein, which issued on October 27
19931 and was based upon an unfair labor practice charge
that was filed on July 1 by Hotel Employees and Restaurant
Employees Union, Local 100, of New York, New York, and
Vicinity, AFL–CIO (the Union), alleges that R.R.R. Res-
taurant, Inc. d/b/a Capriccio Restaurant (Respondent) violated
Section 8(a)(1) and (5) of the Act by unilaterally modifying
the terms of its contract with the Union by failing to make
the required payments to the Pension Fund and the Welfare
Fund, since about February 10, as provided by its contract
with the Union.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with an office and
place of business in New York City (the facility), has been
engaged in the operation of a restaurant. Annually, Respond-
ent derives gross revenues in excess of $500,000 and, for the
same period, purchases and receives at its facility products,
goods, and materials valued in excess of $5000 from enter-
prises located within the State of New York, which enter-
prises received the products, goods, and materials directly
from points outside the State of New York. Respondent ad-
mits, and I find, that it has been engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. FACTS AND ANALYSIS
The Union represents Respondent’s employees in the fol-
lowing appropriate unit:
All dining room, kitchen and bar employees including
captains, waiters, waitresses, busboys, bartenders,
cooks, pastry cooks, dishwashers, pot washers, and por-
ters employed by Respondent at its facility, excluding
all other employees, guards and supervisors as defined
in the Act.
The most recent collective-bargaining agreement between the
parties was effective for the period October 1, 1989, through
September 30, 1992, and shall be referred to herein as the
agreement. No subsequent agreement was entered into be-
tween the parties. The agreement requires Respondent to
make specified payments to the Hotel Employees and Res-
taurant Employees International Union Welfare Fund (the
Welfare Fund) and the Hotel Employees and Restaurant Em-
ployees International Union Pension Fund (the Pension
Fund). These payments were due to be received by the funds
on the 10th day of the month following the month for which
the payments were required and the amount paid depended
on the number of employees employed each week during the
period. During 1992, Respondent fell behind in these pay-
ments. On November 2, 1992, the Union received checks
from Respondent in full payment of its Pension Fund and
Welfare Fund contributions for the months of July, August,
and September 1992. The next payment that the Union re-
ceived from Respondent was on January 27, when it received
a check in full payment of Respondent’s obligations to the
Pension Fund and the Welfare Fund for the months of Octo-
ber, November, and December 1992. Respondent made no
subsequent payments to the Pension Fund or the Welfare
Fund.
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Remigo Raicovich, Respondent’s president, testified that in
March or April he told Union Representative Jaime Flores
that he could no longer afford the payments to the Pension
Fund and Welfare Fund, and if he had to continue making
these payments he could not remain in business. He testified
that he could not remember Flores’ reply, but in his affidavit
given to the Board, he states that Flores told him that he
would have to make the payments anyway. In about Feb-
ruary or March, Flores offered him a 1-year freeze in wage
rates and contributions to the funds if he signed a new con-
tract with the Union. He refused to sign a new contract on
the ground that he couldn’t afford to pay what the Union was
asking. Phyllis Lime, who is employed as the billing and
general manager for the Welfare and Pension Funds, testified
that due to the Respondent’s delinquencies in its funds pay-
ments its employees lost their coverage under the funds ef-
fective March 31.
Respondent has two defenses herein: that since the con-
tract expired on September 30, 1992, and no subsequent
agreement was executed, no Pension or Welfare payments
were due from Respondent during the periods in question. In
addition, Respondent defends that since the unfair labor prac-
tice charge herein was filed on July 1, the allegations herein
are barred by Section 10(b) of the Act.
Buck Brown Contracting Co., 272 NLRB 951 at 953
(1984), states:
It is well settled that an employer violates Section
8(a)(5) and (1) when it unilaterally changes or discon-
tinues existing terms and conditions of employment—
including contributions to contractual fringe benefit
funds—upon the expiration of a collective-bargaining
agreement unless: (1) the union has waived bargaining
on the issue; or (2) the parties have bargained to im-
passe and the unilateral change is reasonably encom-
passed by the employer’s preimpasse proposals. It also
is well settled that an employer acts in derogation of its
bargaining obligation under Section 8(d) if it unilater-
ally changes or otherwise repudiates terms or conditions
of employment contained in a collective-bargaining
agreement during the life of that agreement.
The sole evidence in this regard is that the Union offered
Raicovich a 1-year freeze in wages and fund payments if he
executed an contract, an offer that Respondent refused. There
is no evidence that the Union waived these fund payments
or that the parties bargained to impasse on the subject. Re-
spondent therefore continued to be obligated to make these
fund payments after the contract expired on September 30,
1992.
Counsel for Respondent, in his brief, cites Chemung Con-
tracting Corp., 291 NLRB 773 (1988), and Park Inn Home
for Adults, 293 NLRB 1082 (1989), in support of his 10(b)
defense. I find, however, these cases are clearly distinguish-
able from the instant matter. In Chemung, supra at 774, the
Board found that the General Counsel was ‘‘barred from
bringing any complaint in which the operative events estab-
lishing the violation occurred more than 6 months before the
unfair labor practice charge had been filed and served.’’
More specifically, the Board stated:
In the instant case it is clear that outside the 10(b)
period the Respondent unequivocally repudiated its ob-
ligation to make contributions into the trust funds and
the Union knew of this action. The Respondent at no
time since has resumed making such payments. Further-
more, the Respondent has not engaged in any conduct,
nor have there been any intervening circumstances that
can be construed as inconsistent with the Respondent’s
initial actions. Thus, because the operative facts estab-
lishing the violation occurred outside the 10(b) period,
we find that the applicable complaint allegations are
time barred and that the Board is precluded from decid-
ing the underlying substantive legal issues.
Similarly in Park Inn Home, the Board, relying on
Chemung, dismissed this portion of the complaint because
the union was on notice before the 10(b) date that the em-
ployer had repudiated its obligation to contribute to the
funds. The obvious difference between these cases and the
instant matter is that in the instant matter the Union did not
have the notice of repudiation outside the 10(b) period. Re-
spondent’s final payments to the funds was made on January
27, 5 months and a few days prior to the filing of the charge
herein. It was not until after that date that Respondent un-
equivocally repudiated its obligation to make these fund pay-
ments. The Union could not have anticipated this repudiation
at an earlier time (outside the 10(b) period as counsel for Re-
spondent would have us find) as Respondent had consistently
been late in its payments to the funds. From December 1991
to November 1992, its fund payments were more than 2
months late on average. I therefore find that the complaint
allegations herein are not barred by Section 10(b) of the Act
and that by unilaterally failing and refusing to make these
payments to the Welfare Fund and the Pension Fund since
January, the Respondent violated Section 8(a)(1) and (5) of
the Act.
CONCLUSIONS OF LAW
1. Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Union is the collective-bargaining representative of
the following of Respondent’s employees constituting a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All dining room, kitchen and bar employees including
captains, waiters, waitresses, busboys, bartenders,
cooks, pastry cooks, dishwashers, pot washers and por-
ters employed by Respondent at its facility, excluding
all other employees, guards and supervisors as defined
in the Act.
4. By unilaterally failing and refusing to make the required
Pension Fund and Welfare Fund payments to the Union, the
Respondent violated Section 8(a)(1) and (5) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. I recommend that Re-
spondent be ordered to pay to the Union the specified
1269CAPRICCIO RESTAURANT
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 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
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.’’
amounts due to the Pension Fund and the Welfare Fund, to-
gether with the required reports, for the months January 1993
to the present time, with interest. If any employee of Re-
spondent in the above-mentioned unit, who was employed by
Respondent during this period, suffered a loss due to Re-
spondent’s failure to make these payments, Respondent shall
be ordered to reimburse these employees for the amount of
the loss they suffered, with interest.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, R.R.R. Restaurant, Inc. d/b/a Capriccio
Restaurant, New York, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union by uni-
laterally ceasing to make contributions to the Union’s Pen-
sion Fund and Welfare Fund as provided in its collective-bar-
gaining agreement with the Union which expired on Sep-
tember 30, 1992.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole its unit employees by making all Pension
Fund and Welfare Fund contributions for the months of Jan-
uary 1993 to the present, as required by the collective-bar-
gaining agreement, and which would have been paid absent
Respondent’s unilateral discontinuance of the contributions,
and by reimbursing unit employees for any expenses ensuing
from the Respondent’s failure to make such contributions.
(b) Preserve and, on 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
amounts due under the terms of this Order.
(c) Post at its facility in New York, New York, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for Region
2, after being signed by Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and shall be maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 refuse to bargain with Hotel Employees and
Restaurant Employees Union, Local 100, of New York, New
York and Vicinity, AFL–CIO (the Union) by unilaterally
ceasing to make contributions to the Union’s Pension Fund
and Welfare Fund as provided in the collective-bargaining
agreement between us effective October 1, 1989, through
September 30, 1992.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL pay to the Pension Fund and the Welfare Fund
the contributions that we should have made under the terms
of our contract, from January 1993 to date, and WE WILL re-
imburse our employees for any expenses they incurred due
to our failure to make such contributions.
R.R.R. RESTAURANT, INC. D/B/A CAPRICCIO
RESTAURANT