Kingston Hotel

National Labor Relations Board - Board Decisions

Jul 31, 1991

303 N.L.R.B. 986 (N.L.R.B. 1991)

986
303 NLRB No. 153
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Executive Hotel Plaza Associates, a partnership,
d/b/a Kingston Hotel and Hotel Employees &
Restaurant Employees of San Diego, Local 30,
Hotel Employees and Restaurant Employees
International Union, AFL–CIO. Case 21–CA–
27896
July 31, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
Upon a charge filed by the Union on January 24,
1991, and an amended charge filed on March 1, 1991,
the General Counsel of the National Labor Relations
Board issued a complaint on March 6, 1991, against
Executive Hotel Plaza Associates, a Partnership, d/b/a
Kingston Hotel, the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National Labor
Relations Act. Although properly served copies of the
charge, amended charge, and complaint, the Respond-
ent has failed to file an answer.
On May 17, 1991, the General Counsel filed a Mo-
tion for Summary Judgment with exhibits attached. On
May 23, 1991, 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 Re-
spondent filed no response. The allegations in the mo-
tion therefore are undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board’s Rules and Regulations
provides 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. The complaint states that unless an answer
is filed within 14 days of service, ‘‘all of the allega-
tions in said complaint shall be deemed to be admitted
to be true and may be so found by the Board.’’ Fur-
ther, the undisputed allegations in the Motion for Sum-
mary Judgment disclose that on March 26, 1991, the
Respondent requested an extension of time to April 25,
1991, to file an answer to the complaint, which was
granted by the Regional Director on March 28, 1991.
As noted above, the Respondent has failed to file an
answer and has failed to file a response to the Notice
to Show Cause.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California general partnership,
has been engaged in the operation of the Kingston
Hotel in San Diego, California. Annually, in the course
and conduct of its business operations, the Respondent
derived gross revenues in excess of $500,000, and an-
nually purchased and received goods and products val-
ued in excess of $10,000 from suppliers located in the
State of California which suppliers, in turn, purchased
the same goods and products directly from suppliers
located outside the State of California. We find that
the Respondent is an employer engaged in commerce
within the meaning of Section 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 con-
stitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act:
All kitchen employees, stockroom employees,
lunch and dining room employees, bartenders and
cocktail lounge employees, and housekeeping and
service department employees employed by the
Respondent; excluding all other employees, pro-
fessional employees, office clerical employees,
guards and supervisors as defined in the Act.
Since February 21, 1989, and at all times material,
the Union has been the designated exclusive collective-
bargaining representative of the employees in the unit,
and the Union has been recognized as the representa-
tive by the Respondent. Recognition has been em-
bodied in a collective-bargaining agreement, which
was effective by its terms for the period of February
21, 1989, to June 1, 1990, and extended by agreement
of the Union and the Respondent to March 31, 1991.
At all times material, the Union, by virtue of Section
9(a) of the Act, has been, and is, the exclusive rep-
resentative of the employees in the unit for the pur-
poses of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
Since on or about September 1, 1990, the Respond-
ent has failed and refused, and continues to fail and
refuse, to bargain collectively with the Union as the
exclusive representative of the unit employees by repu-
diating articles 3(h), 19, and 20 of the 1989–1991 col-
lective-bargaining agreement in that, since July 1,
1990, the Respondent has failed and refused, and con-
tinues to fail and refuse, to make contractually required
payments to the San Diego Bartenders and Culinary
987KINGSTON HOTEL
1 We leave to the compliance stage the question of whether the Respondent
must pay any additional amounts into the benefit funds in order to satisfy our
‘‘make-whole’’ remedy. Merryweather Optical Co., 240 NLRB 1213 (1979).
2 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
Workers’ Insurance Trust and the San Diego Bar-
tenders and Culinary Workers’ Pension Trust Fund,
and has failed and refused to remit deducted union
dues to the Union since October 1, 1990.
We find that, by the above acts and conduct, the Re-
spondent has failed and refused to bargain collectively
and in good faith with the Union as the exclusive rep-
resentative of its employees and that the Respondent
thereby has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing since on or about July 1, 1990, to make
contractually required payments to the San Diego Bar-
tenders and Culinary Workers’ Insurance Trust and the
San Diego Bartenders and Culinary Workers’ Pension
Trust Fund, and by failing, since October 1, 1990, to
remit deducted union dues to the Union, the Respond-
ent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. We shall
order the Respondent to make its unit employees
whole by making all payments into the San Diego Bar-
tenders and Culinary Workers’ Insurance Trust and the
San Diego Bartenders and Culinary Workers’ Pension
Trust Fund, as required by the collective-bargaining
agreement, which have not been paid and which would
have been paid in the absence of the Respondent’s un-
lawful unilateral discontinuance of the payments;1 and
by reimbursing unit employees for any expenses ensu-
ing from the Respondent’s failure to make the required
payments, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), affd. mem. 661 F.2d 940
(9th Cir. 1981). We also shall order the Respondent to
remit deducted union dues to the Union, as required by
the collective-bargaining agreement until its expiration.
All payments to employees and the Union shall be
made with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Executive Hotel Plaza Associates, a Part-
nership, d/b/a Kingston Hotel, San Diego, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Hotel Employees &
Restaurant Employees of San Diego, Local 30, Hotel
Employees and Restaurant Employees International
Union, AFL–CIO, as the exclusive bargaining rep-
resentative of the employees in the appropriate unit set
forth below, by failing to make payments to the San
Diego Bartenders and Culinary Workers’ Insurance
Trust and the San Diego Bartenders and Culinary
Workers’ Pension Trust Fund, as required by the col-
lective-bargaining agreement, and by failing to remit
deducted union dues to the Union, as required by the
collective-bargaining agreement until its expiration.
The unit is:
All kitchen employees, stockroom employees,
lunch and dining room employees, bartenders and
cocktail lounge employees, and housekeeping and
service department employees employed by the
Respondent; excluding all other employees, pro-
fessional employees, 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 by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole the unit employees by making pay-
ments on their behalf to the San Diego Bartenders and
Culinary Workers’ Insurance Trust and the San Diego
Bartenders and Culinary Workers’ Pension Trust Fund,
as required by the collective-bargaining agreement
with the Union, which have not been paid, and by re-
imbursing the unit employees for any expenses ensuing
from the failure to make those payments, in the man-
ner set forth in the remedy section of this decision.
(b) Remit deducted union dues to the Union, as re-
quired by the collective-bargaining agreement until its
expiration, plus interest, in the manner set forth in the
remedy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts due under
the terms of this Order.
(d) Post at its facility in San Diego, California cop-
ies of the attached notice marked ‘‘Appendix.’’2 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 21, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by another material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Hotel Employees & Restaurant Employees of San
Diego, Local 30, Hotel Employees and Restaurant Em-
ployees International Union, AFL–CIO, as the exclu-
sive bargaining representative of the employees in the
appropriate unit set forth below by failing to make
contributions to the San Diego Bartenders and Cul-
inary Workers’ Insurance Trust and the San Diego
Bartenders and Culinary Workers’ Pension Trust Fund,
as required by our collective-bargaining agreement
with the Union. The unit is:
All kitchen employees, stockroom employees,
lunch and dining room employees, bartenders and
cocktail lounge employees, and housekeeping and
service department employees employed by the
Respondent; excluding all other employees, pro-
fessional employees, office clerical employees,
guards and supervisors as defined in the Act.
WE WILL NOT fail and refuse to remit deducted
union dues to the Union, as required by the collective-
bargaining agreement until its expiration.
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 make whole our unit employees by mak-
ing payments on their behalf to the San Diego Bar-
tenders and Culinary Workers’ Insurance Trust and the
San Diego Bartenders and Culinary Workers’ Pension
Trust Fund as required by the collective-bargaining
agreement, which have not been paid, and by reim-
bursing our unit employees for any expenses ensuing
from our failure to make the required payments, plus
interest.
WE WILL remit to the Union all deducted union
dues, as required by the collective-bargaining agree-
ment until its expiration, plus interest.
EXECUTIVE HOTEL PLAZA ASSOCIATES,
A PARTNERSHIP, D/B/A KINGSTON HOTEL