Dover Caterers Ind d/b/a d/b/a Dover College Services Inc

National Labor Relations Board - Administrative Judge Opinions

Sep 28, 2011

29-CA-030591 (N.L.R.B. Sep. 28, 2011)

JD(NY)–35–11
Selden, NY
Brentwood, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
DOVER HOSPITALITY SERVICES, INC.,
a/k/a DOVER CATERERS, INC.,
a/k/a DOVER COLLEGE SERVICES, INC.
and Case No. 29-CA-30591
LOCAL 1102 OF THE RETAIL, WHOLESALE
& DEPARTMENT STORE UNION, UNITED
FOOD & COMMERCIAL WORKERS UNION
Nancy Reibstein, Esq. for the General Counsel.
Jeffrey A. Meyer, Esq. (Kaufman, Dolowich, Voluck & Gonzo)
Woodbury, New York for the Respondent.
Dennis J. Romano, director of collective bargaining, for
the Charging Party.
DECISION
Statement of the Case
Steven Fish, Administrative Law Judge: Pursuant to charges filed by Local 1102 of the
Retail, Wholesale & Department Store Union, United Food & Commercial Workers Union,
herein called the Union or Charging Party, on January 18, 2011,1 the Acting Director for Region
29 issued a complaint and notice of hearing on April 14, alleging that Dover Hospitality Services,
Inc., a/k/a Dover Caterers, Inc., a/k/a Dover College Services, Inc., herein called Respondent,
violated Section 8(a)(1) and (5) of the Act by failing to furnish the Union with information
necessary and relevant to the Union’s performance on the exclusive representative of certain
employees of Respondent.
The trial with respect to the allegations in the above mentioned complaint was held
before me on July 26 in Brooklyn, New York.
Briefs have been filed by General Counsel and Respondent and have been carefully
considered. Respondent’s brief was due on August 23. Respondent’s counsel mailed its brief to
both General Counsel and the Division of Judges on August 23. The briefs were received by
General Counsel and the Division of Judges on August 26.
On September 1, General Counsel filed a motion to reject Respondent’s brief as
untimely since it was not mailed on the day before it was due or properly served in any other
manner as required by Section 102.111(b) of the Board’s Rules and Regulations. Northwest
Graphics, Inc., 343 NLRB 84, 86 (2004).

1 All dates hereinafter referred to are in 2011, unless otherwise indicated.
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I issued an order dated September 6 finding that although General Counsel was correct
in her assertion that Respondent’s brief was untimely, I accepted and considered the brief using
my discretion since no prejudice was shown by General Counsel. Altercare of Wadsworth
Center for Rehabilitation, 355 NLRB No. 96 ALJD slip op at 5 (2010); Barstow Community
Hospital, 352 NLRB 1052, 1055 fn. 4 (2008); WGE Federal Credit Union, 346 NLRB 183 (2005).
I also in my order granted General Counsel’s alternative request to file a reply brief in
order to correct alleged “gross misrepresentations of record evidence and Board law.” General
Counsel filed such a reply brief, which has also been carefully considered.
Based upon the entire record, including my observation of the demeanor of the
witnesses, I issue the following:
Findings of Fact
I. Jurisdiction
Respondent is a corporation with its principal office and place of business in Plainview,
New York with operations at Suffolk County Community College’s campuses in Selden and
Brentwood, New York, where it is engaged in providing retail food services.
During the past year, Respondent derived gross revenues in excess of $500,000 and
purchased at its New York locations goods valued in excess of $5000 from other enterprises
located within the State of New York, each of which other enterprises had received those goods
directly from point located outside the State of New York.
It is admitted, and I so find, that Respondent is and has been an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
II. Labor Organization
It is also admitted, and I so find, that the Union is and has been a labor organization
within the meaning of Section 2(5) of the Act.
III. Bargaining History
Since 2005, Respondent has recognized the Union as the collective bargaining
representative of various food service employees employed at the Suffolk County Community
College, Selden and Brentwood campuses. Such recognition has been embodied in successive
collective bargaining agreements, the most recent of which was effective from February 1, 2007
to January 31, 2010.
Isaac “Butch” Yamali has been at all times material herein the owner of Respondent,
who negotiated all the prior contracts with the Union on behalf of Respondent.
Dennis Romano is and has been the director of collective bargaining for the Union. He
was the primary negotiator on behalf of the Union in its prior negotiations with Respondent,
including the last contract negotiated by the parties, as detailed above.
IV. The Negotiations for a Successor Agreement
On November 15, 2009, the Union sent a letter to Respondent requesting that
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negotiations commence for a successor agreement. Pursuant to that request, the parties met on
January 7, 2010 at the Suffolk County Department of Labor. Present on behalf of the Union
were Romano, David Brijlall, union representative, Phyllis Steffek, shop steward for the Union
and an employee at Respondent’s Selden campus, and Marianne Hurley, another unit
employee of Respondent, who was not a steward or an official of the Union. Yamali was present
on behalf of Respondent.
Romano began the meeting by presenting Yamali with the Union’s written proposals for
a new agreement. The proposals are set forth below:
DOVER HOSPITALITY SERVICES INC. at SCC Selden/Brentwood
CONTRACT PROPOSALS
Duration: Effective February 1, 2010 to January 31, 2013
Article 33
Wages: All Employees shall receive the following wage increases:
Article 5
Section A Effective: 02/01/10 02/01/11 02/01/12
$.70 $.70 $.70
Local 1102 Health and Benefit Fund:
Article 18
Section A
Employer Employee Total
Effective: Contribution Co-pay Contribution
02/01/10 $404.00 $50.00 $454.00
02/01/11 $448.00 $50.00 $498.00
02/01/12 $497.00 $50.00 $547.00
Recognition Delete the words “Casual Employees”
Article 1
Casual Employees Remove Article
Article 2
Holiday Add an additional named holiday.
Article 8 Holidays shall be paid at the average daily
salary of the employee for every holiday
earned.
Vacation Add Section D. Vacation pay shall be paid
Article 10 at the average weekly salary of the
Employee for every week earned.
Sick Leave Sick leave shall be paid at the average daily
Article 11 salary of the employee for every sick day
earned.
Meals Add sentence “Meal Selection to be made
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Article 14 by employee.”
Local 1102 Retirement
Savings Fund Increase to $.80 per hour or increase
Article 19 employer match with the 401K.
Section A
Student Employees Limit to 2 students.
Article 20
The Union reserves the right to add, modify or delete from its proposals during
negotiations.
Romano reviewed and explained to Yamali each of the Union’s proposals, including
increases in wages and contributions to the Union’s health and benefit fund and its retirement
fund.
Yamali responded that he could not afford the current Union contract, let alone any
increases in a new contract. Yamali added that he was not “turning” a profit at the college and
that his contract with the college was up. Yamali further informed the Union that he would be
sitting down with the college to renegotiate Respondent’s contract and added that he was
paying from 30% to 40% commission back to the college.
Yamali then repeated that he could not afford the current contract and asked for a
reduction in health contributions. He added that this was one of the reasons that he had been
continuously late in contributions on behalf of the employees into the health plan.
Yamali then proposed that he had a health plan through his various entities that was
costing him only $250 per month. Yamali wanted to put Respondent’s employees into this plan.
Romano unequivocally rejected Yamali’s proposal.2
Yamali responded to Romano’s rejection of Respondent’s proposal by reiterating that
the current contract was not an affordable contract and that he was not able to make money at
the college. Yamali concluded the meeting by stating that he would make a decision as to
whether he was going to continue operating when he was sitting down with the college to
renegotiate Respondent’s contract.
The next meeting took place on April 12, 2010, also at the Suffolk County Department of
Labor. Romano and Brijlall were present on behalf of the Union, and Yamali was there on behalf
of Respondent.
Yamali reiterated what he had previously stated at the January meeting that he was not
able to afford the contract or the increases proposed by the Union. Yamali added that he was
not able to make money, there was nothing to give and there was nothing to negotiate.

2 I note that the Union’s new proposals called for contributions to be raised to $454, $498
and $547 per employee for each of the three years of the contract. The expiring contract
provided for health and benefit contributions of $414 per employee per month as of September
1, 2008.
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Romano responded that Yamali’s position was unacceptable and the meeting ended.
The parties’ third and final negotiation session took place on November 22, 2010. This
meeting was held at the Union’s office in Westbury, New York. In addition to Romano, the
Union’s controller, Angelo Cione and its attorney, Matthew Rocco, were also present. The latter
two individuals were there primarily to discuss ongoing litigation between the parties concerning
compliance with the collective bargaining agreement.3
Yamali was accompanied by Jeffrey Meyer, Respondent’s attorney, at this meeting. In
addition to discussions between the parties concerning the audit and the funds litigation, there
was limited discussion vis a vis the contract. Yamali proposed a limited union shop provision
limiting the new collective bargaining agreement to covering four or five employees. Romano
rejected that proposal. Romano reiterated the Union’s demands with respect to wages and
health fund contributions and added that the 9% increase requested by the Union was standard
in contracts in the area as well as increases into the retirement savings and wage adjustments.
At that point, Yamali walked out of the Union’s office while stating “this is why unions are
no fucking good.”
My findings with respect to the discussions at these three meetings are based on a
compilation of the credited portions of the testimony of Romano, Brijlall and Steffek.
Significantly, Yamali did not testify so the assertions made by the General Counsel’s witnesses,
as I have detailed above, are unrebutted.
While Brijlall’s testimony is not precisely corroborative of Romano’s in all respects, he
does essentially corroborate the essence of Romano’s testimony that Yamali stated at the first
two meetings that he couldn’t afford to pay the current contract’s terms, much less the increases
demanded by the Union. Brijlall’s recollection also differed from Romano’s as to which meeting
Yamali proposed reducing health care contributions and placing employees into his (Yamali’s)
own health insurance plan. I find this discrepancy insignificant, but, as noted above, I credit
Romano that these comments were made by Yamali at the first meeting on January 7.
Brijlall also testified that at the first meeting Yamali said that “I’m not sure if I will be able
to afford these particular proposals.” At the second meeting, Brijlall testified that Yamali said
after viewing the Union’s proposals that “he’s not going to be able to afford what these
proposals are.”
I find this testimony essentially corroborative of Romano’s testimony, which I have
credited. Additionally, Steffek, who was also present in January, corroborated Romano by
testifying that Yamali stated that he can’t afford the Union’s contract proposals.
Most significantly of all, as related above, Yamali did not testify so the mutually
corroborative testimony of Romano, Steffek and Brijlall is unrebutted.
Respondent, in its brief, makes the assertion that Yamali stated during bargaining that
he “did not want to pay the significant increases sought by the Union as they were not realistic
given the current economic climate.” There is simply no record testimony supporting
Respondent’s assertion that Yamali made either of these comments at any bargaining sessions.

3 Cione, at the time, was overseeing an audit of Respondent concerning the alleged failure
to make contributions to the Union’s funds.
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I note again that absence of any testimony from Yamali whatsoever.
V. The Information Request
On January 5, 2011, Romano, on behalf of the Union, sent the following letter to
Respondent, requesting certain information. The letter reads as follows:
January 5, 2011
Dover College Services Inc.
Butch Yamali
11 Skyline Drive
Plainview, N.Y. 11805
Certified Mail
Return Receipt Requested
Dear Butch:
This shall serve as notice that the Union is requesting the following information
be provided during the current on-going negotiations between the parties.
1. Annual tax returns Federal/State for years 2005-2009
2. Audited Income statements and balance sheet for years 2005-2009
3. Copy of all W-2/W-3 for years 2005-2009
Again this information is needed to verify your continued position at the
bargaining table that the current labor agreement is an impediment to your
continued existence at SCC Selden & Brentwood Campuses.
In addition the Union reserves its right to ask for additional information as it
deems necessary to support your position in these negotiations.
Once I have had an opportunity to review this information I will provide additional
dates for negotiations.
Sincerely,
Dennis J. Romano
Director of Collective Bargaining
Respondent never responded to the Union’s information request and never supplied the
Union any of the information requested.
Romano asked for the information in order to verify Yamali’s assertions of unaffordability
and not making a profit. According to Romano, he consulted with Cione, the Union’s controller,
before drafting the Union’s information request since he (Romano) is not an accountant and
Cione would be more familiar with what documents were necessary to verify Yamali’s assertions
about the unaffordability of the current contract as well as any increases going forward.
VI. Analysis
A. 10(b) Issue
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Respondent, during the trial and in its brief, asserted that the complaint must be
dismissed based on Section 10(b) of the Act. In this regard, Respondent notes that the
meetings, wherein Yamali made his statements about being unable to afford to pay the terms of
the current contract or the increases sought by the Union, took place at meetings in January
and April of 2010, more than six months prior to the filing of the instant charge on January 18,
2011. Therefore, Respondent argues that the instant complaint is barred by Section 10(b).
NLRB v. Michigan Rubber Products, 738 F.2d 111, 113 (6th Cir. 1984).
Respondent’s contentions are totally devoid of merit, and its case citation completely
inapposite. Contrary to Respondent’s arguments, General Counsel is not alleging that Yamali’s
pre-10(b) statements concerning Respondent’s ability to afford union demands are unlawful.
The violation alleged in the complaint is the refusal by Respondent to supply the
information requested. Here, the Union’s request for the information was made in January of
2011, well within the 10(b) period, and the Respondent’s refusal to supply such information
occurred thereafter, also within the 10(b) period.
It is well-settled that the 10(b) period in information cases begins to run when the
Respondent has clearly and unequivocally denied the requested information. Dodger
Theatricals Holdings, Inc., 347 NLRB 953, 965-967 (2006); Quality Building Contractors, 342
NLRB 429, 431-432 (2004); California Nurses Assn., 326 NLRB 1362, 1367 fn. 10 (1998);
Public Service Electric & Gas Co., 323 NLRB 1182, 1188 (1997); Oliver Insulating Co., 309
NLRB 725, 726 (1992); enfd. 995 F.2d 1067 (6th Cir. 1993); Commercial Property Services, 304
NLRB 134, 143 (1991).
The fact that some or even all of the evidence that supports the Union’s demand for the
information (i.e. Respondent’s claim of inability to pay) occurred outside the 10(b) period is not
conclusive since the pre-10(b) evidence merely sheds light on the violation, which took place
within the 10(b) period. Dodger Theatricals, supra, 347 NLRB at 966; Crowley Marine Services,
329 NLRB 1054, 1059 (1999), enfd. 234 F.3d 1295 (DC Cir. 2000); Union Builders, 316 NLRB
406, 411 (1995), enfd. 68 F.3d 520 (1st Cir. 1995).
The one case cited by Respondent in support of its 10(b) argument, Michigan Rubber,
supra, is not to the contrary. While it is true that the court used the phrase quoted by
Respondent that “at some point laches would apply against the Board for inordinate delay in
brining an action.” Id at 113, the comment had nothing to do with 10(b) of the Act. The issue
there was the Board’s delay in seeking enforcement of a bargaining order, and, in fact, the
court, there, held, notwithstanding its comments cited above, that the action was not barred by
laches and enforced the Board’s order.
Thus, Michigan Rubber, supra provides absolutely no support for Respondent’s
assertion that the instant complaint is barred by Section 10(b) of the Act.
I, therefore, reject Respondent’s affirmative defense that so alleges.
B. The Alleged Inability to Pay
It is well-settled that where an employer, either in response to bargaining demands from
the union or in support of its own proposal, makes a claim of inability to pay, the union is entitled
to request and review the employer’s financial records to assess and substantiate the
employer’s representations about its financial condition. NLRB v. Truitt Mfg. Co., 351 US 149
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(1956); North Star Steel Co., 347 NLRB 1364, 1369-1370 (2006); R.E.C. Corp., 307 NLRB 330,
332-333 (1992). This is because good faith bargaining requires that claims made by either
bargainer should be honest claims. Thus, if an employer asserts an inability to pay in support of
its bargaining position, the Supreme Court observed that “if such an argument is important
enough to present in the give and take of bargaining, it is important enough to require some sort
of proof of accuracy.” Truitt, supra, 351 US at 152-153. Accord, Lakeland Bus Lines Inc., 335
NLRB 322, 324 (2001), enfd. denied 347 F.3d 955 (DC Cir. 2003).
In determining whether there has been a claim of inability to pay, the Board will evaluate
an employer’s claims in the context of the particular circumstances in that case. Stella D’oro
Biscuit Co., 355 NLRB #158 slip op p.2 (2010); Lakeland Bus, supra, 335 NLRB at 324. The
Board does not require that the employer recite any “magic words,” but only that the statements
and actions be specific enough to convey an inability to pay. Stella D’oro Biscuit, supra; Atlanta
Hilton & Tower, 271 NLRB 1600, 1602 (1984).
The relevant distinction is between a mere “unwillingness” to pay, which does not trigger
an employer’s obligation to provide financial information, and an “inability” to pay, which does
trigger such an obligation to provide such information. North Star Steel, supra, 347 NLRB 1370;
Richmond Times-Dispatch, 345 NLRB 195, 197 (2005). Put another way, the crucial distinction
is between claims of “can’t pay” and “doesn’t want to pay” or “cannot” and “will not.” Nielsen
Lithographing Co., 305 NLRB 697, 700 (1991), affd. sub nom Graphic Communications
International Union Local 508 v. NLRB, 977 F.2d 1168 (7th Cir. 1992); North Star Steel, supra;
Lakeland Bus, supra, 335 NLRB at 324.
While the difference between “cannot” and “will not” seems on its face to be a relatively
clear and simple distinction, in fact, the Board and court precedent assessing this issue is far
from clear and is filled with split and seemingly contradictory Board decisions, frequently
reversed by circuit courts on both sides of the issue. Compare Stella D’oro Biscuit, supra,
Lakeland Bus, supra; Shell Co., 313 NLRB 123, 124 (1993); ConAgra Inc., 321 NLRB 944, 945
(1996), enf. denied 117 F.3d 1435 (DC Cir. 1997); Stroehmann Bakeries, 318 NLRB 1069
(1995), enf. denied 95 F.3d 218 (2nd Cir. 1996); with North Star Steel, supra, 347 NLRB at 1369-
1370; AMF Trucking & Warehousing Inc., 342 NLRB 1125, 1126-1127 (2004); Richmond
Times-Dispatch, supra, 345 NLRB at 196-199; Burruss Transfer Inc., 307 NLRB 226, 227-228
(1992); and Atlanta Hilton, supra, 271 NLRB at 1602. See also International Chemical Workers
Union, Local 1C v. NLRB, 447 F.3d 1153 (9th Cir. 2006), reversing American Polystyrene Corp.,
341 NLRB 508, 509-510 (2004); and New York Painting Pressmen v. NLRB, 538 F. 2d 496 (2nd
Cir. 1976), reversing Milbin Printing Inc., 218 NLRB 223-224 (1975). These two cases involved
reversing 2-1 Board decisions, which had found that employers had not pleaded an inability to
pay.
The ultimate determination in all of these cases centers on what kinds of claims of
economic hardship and business losses can effectively be considered to be a claim of inability
to pay. Lakeland Bus, supra, 335 NLRB at 324; AMF Trucking, supra, 342 NLRB at 1126. In
that connection, the issue is further defined as whether the employer “presently has insufficient
assets to pay or that it would have insufficient assets to pay during the life of the contract being
negotiated.” AMF Trucking, supra, 342 NLRB at 1126; Nielsen Lithographing, supra, 305 NLRB
700.
While as I have observed, the resolution of the issues described above are frequently
difficult and involve reconciling several conflicting cases on very similar facts, fortunately these
issues are not present here.
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Thus, while the Board has frequently made it clear that no “magic words” are required to
convey an “inability to pay,” Stella D’oro Biscuit, supra, 355 NLRB #158 at 2; Atlanta Hilton,
supra, 271 NLRB at 1602, the comments made by Yamali, here, were as close to “magic words”
as you can get. Yamali, at two meetings, informed the Union that Respondent could not afford
the current union contract, let alone any increases in the new contract. These assertions made
on behalf of Respondent have consistently been held to convey an “inability to pay” under Truitt,
supra. Central Management Co., 314 NLRB 763, 768-769 (1994) (employer representative
stated that it “could not afford” to sign pattern agreement; at one meeting and at another
meeting, stated that company was losing money and couldn’t afford to pay what they were
paying); Gaucho Food Products, 311 NLRB 1270, 1272 (1993) (employer representative stated
that he could not afford to pay the benefits under 1989-1992 contract and hence could not afford
the additional costs evident in the union’s proposal for a new agreement); R.E.C. Corp., 307
NLRB 330, 331 (1992) (employer demanded reduction in wages and referred to several
business related problems; union attorney asked if employer was saying that it “could not afford
to either grant a wage increase or maintain current wages”; employer representative twice
responded yes, that is what he was saying). Indeed, in Truitt, itself, the Supreme Court
characterized the question presented as whether an employer has not bargained in good faith
“where the employer claims that it cannot afford to pay higher wages but refuses requests to
produce information substantiating its claim.” 351 US at 150. The court further summarized the
facts and that the employer, in response to the union’s wage increase demands, stated “that it
could not afford to pay such an increase.” Id.
Subsequent Board and court cases often reaching different ultimate conclusions have
treated the inability to pay and statements that employers could not afford to pay wages or
benefits as functionally equivalent concepts. AMF Trucking, supra, 342 NLRB 1125, 1126 (in
finding that particular comments made by employer did not amount to a plea of inability to pay,
Board majority disagreed with dissent’s contention that respondent “clearly communicated that it
could not afford the union’s demands”; majority observed that “the Respondent did not use
those words or any words of similar import; the phrase ‘could not afford’ means that the
company would not stay in business if it met the Union’s demands. This is not the message that
the respondent gave”) Id at 1126; Lakeland Bus, supra, 335 NLRB at 323 (Board majority
concludes, reversing ALJ and contrary to dissent, that respondent effectively communicated that
“it was unable to afford to pay anything more than that contained in its final offer”) Id; Shell Co.,
supra, 313 NLRB at 123 (Board concludes that the essential core of the respondent’s
bargaining position as a whole, as expressed to the union, was grounded in assertions
amounting to a claim that it could not economically afford the most current contract) Id; North
Star Steel, supra, 347 NLRB at 1379-1380 (dissenting member asserts that employer clearly
communicated to the union that it could not afford the union’s bargaining demands); NLRB v.
Harvstone Mfg. Co., 785 F.2d 570, 577 (7th Cir. 1986) (court equates inability to pay with could
not afford in assessing statements made by employer representatives vis a via claims made of
“competitive disadvantage”4) Chemical Workers, supra, 447 F.3d at 1159 (court in reversing
Board’s dismissal of Truitt violation observes that “we must determine whether the essential
core of the company’s bargaining posture as a whole, as expressed to the union, was grounded
in assertions amounting to a claim that it could not economically afford to pay for the union’s
proposals”) Id at 1160, citing Rivera-Vega v. ConAgra, 70 F.3d 153, 160 (1st Cir. 1995); NLRB v.
Jacob Mfg. Co., 196 F.2d 680, 684 (2nd Cir. 1952) (court equates inability to pay with assertion
that employer could not afford to meet union’s demands); American Model & Pattern, 277 NLRB

4 I note that the Board in Nielson Lithographing, supra, 305 NLRB 697, 699-701, approved
the Harvstone court’s analysis in changing prior Board law concerning assertions of inability to
pay in the context of desire of employer’s to remain competitive.
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176, 184 (1985) (contention by employer that it could not afford to pay existing wages and
benefits must be substantiated by providing books and records).
Accordingly, the above precedent makes it crystal clear that, where as here, Respondent
expressly stated to the Union that it cannot afford to pay the wages and benefits in the expiring
contract, much less the increases demanded by the Union for a successor contract that it is
pleading to pay under Truitt and its progeny. I so find.
C. The Refusal to Supply the Information
Having found that Respondent has asserted an inability to pay in support of its
bargaining position, the remaining issues to be decided are whether the requested information
is relevant to those issues and whether Respondent complied with the requests.
Here, it is undisputed that the Union requested information in its letter of January 5, 2011
for items that are relevant to the issues raised by Respondent’s bargaining position. Thus, all of
the items requested are clearly relevant to issues of substantiating Respondent’s inability to pay
assertions.
It is also undisputed that Respondent ignored the Union’s request and did not supply any
of the items requested.
Respondent’s only alleged defense to its failure to supply this information is without
merit. That is Respondent argues in its brief that the Union “has not set forth a scintilla of
evidence as to why such information is presumably relevant.” This contention is simply false
since in the Union’s letter demanding the information as well as in Romano’s credited testimony,
the Union and Romano stated that the information is necessary to verify Respondent’s claims
made during negotiations of unaffordability and not making a profit and that the “current contract
is an impediment to your continued existence at SCCC Selden and Brentwood Campus.”
Respondent further argues that the Union is really seeking the information not for
negotiation purposes, but rather because of the ongoing litigation regarding the affiliated funds’
audit of Respondent. In support of this assertion, Respondent contends that Romano
“acknowledged as much” in his testimony.
Respondent’s contention in this regard is a clear misrepresentation of the record since
Romano made no such acknowledgement. Indeed, Romano furnished no testimony that the
Union’s request for information was made for any other purpose than to verify Respondent’s
bargaining position.
While Romano did admit that he consulted with Cione, the Union’s accountant, who had
also been involved in litigation between the affiliated funds and Respondent, about what items
to request in the Union’s letter, that admission is hardly sufficient to establish that the
information request was made in support of the funds litigation.
I, therefore, find that Respondent has not established that the Union’s information
request was made “not for negotiation purposes, but rather because of ongoing litigation.”
The best that can be said for Respondent’s evidence (i.e. the pendency of the funds’
litigation, Cione’s dual role in the litigation and in assisting Romano in formulating the Union’s
information request and the fact that both bargaining and litigation issues were discussed at the
same meeting) is that the Union’s request was made for both reasons. That is the request was
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made to both verify the Respondent’s inability to pay assertion and to assist the funds in their
litigation.
Such a finding would not be a valid defense to Respondent’s failure to turn over the
information requested.
It is well-settled that relevance of information is not rebutted by a showing that the union
also seeks the information for a purpose unrelated to its representative function. Coca-Cola
Bottling, 311 NLRB 424, 429 (1993); E. I. Du Pont de Nemours & Co., 264 NLRB 48, 51 (1982),
enfd. 744 F.2d 536 (6th Cir. 1984) (union also had interest in companywide wage data for
disclosure to a second union seeking to organize these facilities). See also Country Ford
Trucks, 330 NLRB 328 (1999), enfd. 229 F.3d 1184 (DC Cir. 2000) (requirement that
information request be made in good faith is satisfied if at least one reason for the demand can
be justified). Accord, Island Creek Coal Co., 292 NLRB 480, 489 (1989), enfd. 899 F.2d 1222
(6th Cir. 1990).
Further, it is also well-established that where a union’s request is for a proper and
legitimate purpose, it cannot make any difference that there may be other reasons for the
request or that the data may be put to other uses. Coca-Cola Bottling, supra; Associated
General Contractors of California, 242 NLRB 891, 894 (1979), enfd. in relevant part and
modified on other grounds 633 F.2d 766, 772, 773 (9th Cir. 1980) (union had an additional
underlying purpose in requesting information to facilitate organizing of non-union companies);
New York Post Corp., 283 NLRB 430, 442 (1987) (fact that union might use information to
organize subcontractor employees does not affect obligation to turn over relevant information to
union); White Farm Equipment, 242 NLRB 1373, 1374 (1979) (“once requested information is
found to be relevant, it is not controlling that it might be used for other purposes”);
Westinghouse Electric, 239 NLRB 106, 110-111 (1978), enfd. 648 F.2d 18, 25 (DC Cir. 1980)
(Board rejects defense that union’s request for information relating to alleged racial
discrimination is barred because union sought to use information to help prosecute Title VII
lawsuit against employer; Board holds “that if information is relevant to the collective bargaining,
it loses neither its relevance not its availability merely because a union additionally might or
intends to use it to attempt to enforce statutory and contractual rights before an arbitrator, the
Board or a court”) Id; Utica Observer-Dispatch Inc., 111 NLRB 58, 63 (1955), enfd. 229 F.2d
575, 577 (2nd Cir. 1955)5 (fact that union wanted wage information in part to collect dues does
not detract from its relevance to police contract and bargain intelligently on wages).
Furthermore, I conclude that the Union’s efforts to assist the funds in their litigation
against Respondent for Respondent’s failure to make payments required under the contract is
part of and consistent with the Union’s representatives functions. Westinghouse Electric, supra,
239 NLRB at 110, 111 (union can enforce contractual rights through various forums, including
court arbitration or information requests through the Board).6
Further, the fact that other pending litigation already exists (i.e. funds lawsuit against

5 The court in enforcing Board’s order observed that “where the local’s request for relevant
data is for a proper and legitimate purpose it cannot make any difference that there may also be
other reasons for the request or that the data may be put to other uses.” 229 F.2d at 577.
6 The DC Circuit in enforcing the Board’s order rejected the employer’s assertion that it need
not supply data for use in union sponsored litigation. The court observed that “whether the
requested information might be useful in litigation is irrelevant in determining whether there is a
duty…to supply the information.” 648 F.2d at 25.
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Respondent) does not provide a defense to Respondent’s not providing information to the
Union. Westinghouse Electric, supra, 239 NLRB at 111, citing Curtiss-Wright Corp., 193 NLRB
940 (1971) (Board orders employer to furnish the union information concerning a pension fund
despite the fact that union had filed a civil suit seeking an audit of the pension funds).
Therefore, as the above precedent establishes, even if it was concluded that one of the
purposes of the Union’s request for information was to assist the funds in litigation against
Respondent, that finding would not provide a defense to Respondent’s obligation to provide
clearly relevant information to the Union.
Accordingly, based upon the foregoing analysis and precedent, I conclude that
Respondent has violated Section 8(a)(1) and (5) of the Act by failing to supply the information
requested by the Union in its January 5, 2011 letter.
Conclusions of Law
By failing and refusing to provide the Union with the information requested in its January
5, 2011 letter, the Respondent has engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and (5) of the Act and Section 2(6) and (7) of the Act.
Remedy
Having found that Respondent had engaged in conduct in violation of Section 8(a)(1)
and (5) of the Act, I shall recommend that it cease and desist therefrom and to take certain
affirmative action necessary to effectuate the policies of the Act.
Having found that Respondent unlawfully refused to supply information set forth in the
complaint, it is recommended that Respondent be ordered to furnish such information to the
Union.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:7
ORDER
The Respondent, Dover Hospitality Services, Inc., a/k/a Dover Caterers, Inc., a/k/a
Dover College Services, Inc., Selden and Brentwood, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Local 1102 of the Retail Wholesale &
Department Store Union, United Food & Commercial Workers Union (the Union) by declining to
furnish information relevant and necessary to the Union’s performance of its duties as the
exclusive representative of its employees in the following appropriate unit:

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended 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.
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All regularly employed kitchen, dining room, bar, cafeteria, kiosk and cart
employees employed by the Respondent at the Suffolk County Community
College Selden Campus and the grill employees employed by the Respondent at
the Suffolk County Community College Brentwood Campus, excluding, however,
all cooks, custodians, university students, causal employees as defined in Article
2, office and clerical employees, supervisors and guards 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) Provide the Union with the information requested by its letter of January 5, 2011.
(b) Within 14 days after service by the Region, post at its Selden and Brentwood, New
York facilities copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being signed by the Respondent’s
authorized representative, 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. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, 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 facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since January 5, 2011.
Dated, Washington, D.C., September 28, 2011.
____________________
Steven Fish
Administrative Law Judge

8 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.”
JD(NY)–35–11
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 Federal labor law and has ordered
us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain in good faith with Local 1102 of the Retail Wholesale &
Department Store Union, United Food & Commercial Workers Union by declining to furnish
information relevant and necessary to the Union’s performance of its duties as the exclusive
representative of our employees in the following appropriate unit:
All regularly employed kitchen, dining room, bar, cafeteria, kiosk and cart employees
employed by us at the Suffolk County Community College Selden Campus and the
grill employees employed by us at the Suffolk County Community College Brentwood
Campus, excluding, however, all cooks, custodians, university students, causal
employees as defined in Article 2, office and clerical employees, supervisors and
guards as defined in the Act.
WE WILL NOT, in any like or related manner, interfer with, restrain or coerce employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL provide the Union with the information requested by its letter of January 5, 2011.
Dover Hospitality Services, Inc. a/k/a Dover Caterers,
Inc., a/k/a Dover College Services, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Two MetroTech Center, 100 Myrtle Avenue, 5th Floor, Brooklyn, NY 11201-4201
(718) 330-7713, Hours: 9 a.m. to 5:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (718) 330-2862.