Holiday Inn Coliseum

National Labor Relations Board - Board Decisions

Jun 12, 1991

303 N.L.R.B. 367 (N.L.R.B. 1991)

367
303 NLRB No. 52
HOLIDAY INN COLISEUM
1 With respect to Case 8–CA–23290, the consolidated complaint alleges that
since 1986, the Respondent has voluntarily recognized the Union as bargaining
representative for employees in the following unit:
All laundry employees, maids, housemen and bellmen employed at the
Respondent’s 4742 Brecksville Road, West Richfield, Ohio, facility, but
excluding all office clerical employees and guards and supervisors as de-
fined in the Act and all other employees.
It further alleges that such recognition has been embodied in successive
collective-bargaining agreements, the most recent of which was effective
by its terms for the period March 1, 1986, to March 1, 1989.
2 On May 22, 1991, the Charging Party also filed a Motion for Summary
Judgment relying, as support therefor, on the arguments contained in the Gen-
eral Counsel’s motion and brief to the Board. Additionally, on June 3, 1991,
it filed with the Board a ‘‘memorandum in support of Motions for Summary
Judgment.’’
3 The Respondent also contends that summary judgment is inappropriate
with respect to the allegations raised in Case 8–CA–23290 concerning its al-
leged refusal to bargain over the terms of a new agreement covering the unit
of employees described in fn. 1, supra. Having duly considered the matter, we
find that the complaint allegations involving Case 8–CA– 23290, and the Re-
spondent’s denials thereof, raise factual issues that can best be resolved fol-
lowing an evidentiary hearing before an administrative law judge. Accordingly,
the General Counsel’s Motion for Summary Judgment is denied with respect
to Case 8–CA–23290. Case 8–CA–23290 shall be severed and remanded to
the Regional Director for further appropriate action.
4 The complaint alleges that the Union requested the Respondent to provide
it with the following information: a list of all present employees in the cer-
tified unit; their job titles and/or job descriptions; each such employee’s aver-
age total hours of employment on a weekly basis; each such employee’s hour-
ly wage, payment per event, or salary; sex; and age.
5 See, e.g., Trustees of Masonic Hall, 261 NLRB 436 (1982); Mobay Chem-
ical Corp., 233 NLRB 109 (1977). Contrary to the Respondent’s assertion in
its brief to the Board, the sex and wage information sought by the Union con-
cerning unit employees is relevant and necessary to the Union’s performance
of its collective-bargaining obligation. See Westinghouse Electric Corp., 239
NLRB 106 (1978); Safeway Stores, 252 NLRB 1323 (1980), enfd. 691 F.2d
953 (10th Cir. 1982); Reed & Prince Mfg. Co., 96 NLRB 850 (1951), enfd.
205 F.2d 131 (1st Cir. 1953), cert. denied 346 U.S. 887 (1953).
6 We find no merit in the Respondent’s contention that summary judgment
with respect to the information request is inappropriate because in its Decem-
ber 14, 1990 written request for information, the Union allegedly sought infor-
mation pertaining to all the Respondent’s employees, not just those in the cer-
tified bargaining unit. Contrary to the Respondent, the December 14, 1990 let-
ter, when read in its entirety, does not establish that the Union’s information
request was intended to apply to all the Respondent’s employees, not just to
the employees in the certified unit. Further, even if the Union’s request could
be construed as ambiguous or was intended to include information regarding
nonunit employees, the Respondent’s blanket refusal to comply with the re-
quest would not be justified. In this regard, the Board has held that an em-
ployer may not simply refuse to comply with an ambiguous or overbroad in-
formation request, but must request clarification and/or comply with the re-
Continued
Stanley E. Stein, Receiver for Holiday Inn Coliseum
and Hotel & Restaurant Employees & Bar-
tenders Local 118. Cases 8–CA–23290 and 8–
CA–23334
June 12, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On January 31, 1991, the General Counsel of the
National Labor Relations Board issued a consolidated
complaint alleging that the Respondent in Case 8–CA–
23334 violated Section 8(a)(5) and (1) of the National
Labor Relations Act by refusing the Union’s request to
bargain and to furnish information following the
Union’s certification in Case 8–RC–14103. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The consolidated complaint
further alleges, pursuant to the charge filed in Case 8–
CA–23290, that the Respondent violated Section
8(a)(5) and (1) by refusing to bargain with the Union
over the terms of a new collective-bargaining agree-
ment covering a different unit of employees.1 The Re-
spondent filed its answer admitting in part and denying
in part the allegations in the complaint.
On May 7, 1991, the General Counsel filed a Mo-
tion for Summary Judgment.2 On May 9, 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 Respondent filed a re-
sponse on May 23, 1991.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
With respect to Case 8–CA–23334, the Respondent
in its answer admits its refusal to bargain with the
Union and to provide it with the requested information,
but attacks the validity of the certification on the
grounds, previously raised in the underlying represen-
tation proceeding, that it qualifies as a political sub-
division under Section 2(2) of the Act and is therefore
exempt from the Board’s jurisdiction. It contends that
in these circumstances, summary judgment is inappro-
priate.3
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Additionally, the Respondent denies that the informa-
tion requested is relevant and necessary to the Union’s
role as exclusive bargaining representative of the unit
employees. It is well established, however, that the
employees’ wage and employment information sought
by the Union4 is presumptively relevant for purposes
of collective bargaining and must be furnished on re-
quest.5 The Respondent has not attempted to rebut the
relevance of the information requested by the Union.
We therefore find that no material issues of fact exist
with regard to the Respondent’s refusal to furnish the
information sought by the Union.6 Accordingly, we
grant the Motion for Summary Judgment.
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quest to the extent it encompasses necessary and relevant information. See,
e.g., A-Plus Roofing, 295 NLRB 967 fn. 7 (1989); Barnard Engineering Co.,
282 NLRB 617, 621 (1987).
7 Although the Respondent denies the jurisdictional monetary amounts al-
leged in complaint par. 2(B), the record in the underlying representation pro-
ceeding, of which we have taken official notice, establishes clearly that the
Respondent meets the monetary amounts alleged in par. 2(B), and is subject
to the Board’s jurisdiction. We further note in this regard that in the under-
lying representation proceeding, the Board affirmed the Regional Director’s
finding, to which no review was sought, that the Respondent met the Board’s
jurisdictional standards.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a receiver appointed by a court
of the State of Ohio to operate Holiday Inn Coliseum,
a hotel and restaurant located at 4742 Brecksville
Road, West Richfield, Ohio. During the 12-month pe-
riod immediately preceding the issuance of the com-
plaint, a representative period, the Respondent, in the
course and conduct of the above business operations,
derived gross revenues in excess $500,000 and pur-
chased and received goods valued in excess of $5000
directly from points located outside the State of Ohio.7
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 organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held November 30, 1990, the
Union was certified on December 10, 1990, as the col-
lective-bargaining representative of the employees in
the following appropriate unit:
All food and beverage employees, kitchen and
dining room employees, and banquet employees,
excluding office clerical employees, professional
employees, guards, and supervisors as defined in
the Act and all other employees.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusals to Bargain
Since on or about December 14, 1990, the Union
has requested the Respondent to bargain and to furnish
information, and since on or about January 16, 1991,
the Respondent has refused. We find that these refusals
constitute unlawful refusals to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after January 16, 1991, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit and to furnish the Union requested information,
the Respondent 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 violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement. We shall also order
the Respondent to furnish the Union the information
requested.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification as beginning the date the Respondent
begins to bargain in good faith with the Union. Mar-
Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Stanley E. Stein, Receiver for Holiday Inn
Coliseum, West Richfield, Ohio, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Hotel & Restaurant
Employees & Bartenders Local 118 as the exclusive
bargaining representative of the employees in the bar-
gaining unit, and refusing to furnish the Union infor-
mation that is relevant and necessary to its role as the
exclusive bargaining representative of the unit employ-
ees.
(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) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All food and beverage employees, kitchen and
dining room employees, and banquet employees,
excluding office clerical employees, professional
employees, guards, and supervisors as defined in
the Act and all other employees.
(b) On request, furnish the Union information that is
relevant and necessary to its role as the exclusive rep-
resentative of the unit employees.
369HOLIDAY INN COLISEUM
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 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.’’
(c) Post at its facility in West Richfield, Ohio, cop-
ies of the attached notice marked ‘‘Appendix.’’8 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 8, 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
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.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that Case 8–CA–23290 is
severed from Case 8–CA–23334, and Case 8–CA–
23290 is remanded to the Regional Director for further
appropriate action.
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 with Hotel & Res-
taurant Employees & Bartenders Local 118 as the ex-
clusive representative of the employees in the bar-
gaining unit, and WE WILL NOT refuse to furnish the
Union information that is relevant and necessary to its
role as the exclusive bargaining representative of the
unit employees.
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 and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All food and beverage employees, kitchen and
dining room employees, and banquet employees,
excluding office clerical employees, professional
employees, guards, and supervisors as defined in
the Act and all other employees.
WE WILL, on request, furnish the Union information
that is relevant and necessary to its role as the exclu-
sive bargaining representative of the unit employees.
STANLEY E. STEIN, RECEIVER FOR HOL-
IDAY INN COLISEUM