Aperitivo, 1310 (2000)

Aperitivo Restaurant, Inc. d/b/a Aperitivo and Local 100, Hotel Employees and Restaurant Employees International Union, AFL-CIO. Case 2-CA- 32774

November 30, 2000

DECISION AND ORDER

BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN

AND HURTGEN

Upon a charge filed by the Union on February 8, 2000, and amended charges filed by the Union on May 2 and July 5, 2000, the General Counsel of the National Labor Relations Board issued a complaint on July 27, 2000, against Aperitivo Restaurant, Inc. d/b/a Aperitivo, 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 October 30, 2000, the General Counsel filed a Motion for Summary Judgment with the Board. On October 31, 2000, 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 Motion for Summary Judgment disclose that the Region, by letter dated September 20, 2000, notified the Respondent that unless an answer were received by September 29, 2000, a Motion for Summary Judgment would be filed.

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

1. JURISDICTION

   At all material times, the Respondent, with a principal place of business located at 321 West 44th Street, New York, New York, has been engaged in the operation of a restaurant. Annually, in the course and conduct of its

   business operations described above, the Respondent derives gross revenues in excess of $500,000, and purchases and receives at its restaurant goods and services valued in excess of $5000, which originate 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.

2. ALLEGED UNFAIR LABOR PRACTICES

   At all material times, Luciano Diminich has held the position of the Respondent's owner and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent acting on its behalf.

   The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9(b) of the Act:

   Included: All full time and regular part-time dining room, kitchen and bar employees.

   Excluded: All other employees, including office clerical employees, guards, professional employees and supervisors as defined in the Act.

   Since in or around 1990, the Union and the Respondent have been parties to a series of collective-bargaining agreements, the most recent of which was effective by its terms from September 1, 1996, through August 31, 1999.

   At all material times, the Union, by virtue of Section 9(a) of the Act, has been the exclusive representative of the unit set forth above for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment.

   In or around October 1999, the exact date being currently unknown to the General Counsel, the Respondent closed...