Racetrack Food Services, Inc.

National Labor Relations Board - Board Decisions

Dec 31, 2008

353 N.L.R.B. 687 (N.L.R.B. 2008)

RACETRACK FOOD SERVICES
353 NLRB No. 76
687
Racetrack Food Services, Inc. and Casino Food Ser-
vices, Inc., Single Employer and UNITE HERE,
Local 274. Case 4–CA–35158
December 31, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On July 25, 2008, Administrative Law Judge Wallace
H. Nations issued the attached decision. Respondent
Racetrack Food Services, Inc. (Racetrack) filed excep-
tions and a supporting brief, the General Counsel and
Charging Party each filed an answering brief, Racetrack
filed a reply brief, and the General Counsel filed a cross-
exception.
The National Labor Relations Board1 has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
Some of Racetrack’s exceptions argue that the judge’s rulings, find-
ings, and conclusions demonstrate bias and prejudice. On careful ex-
amination of the judge’s decision and the entire record, we are satisfied
that Racetrack’s contentions are without merit.
2 We adopt the judge’s finding that Racetrack violated Sec. 8(a)(1)
and (5) by failing to respond to the Union’s information request, which
includes, among other things, the names, addresses, and telephone
numbers of nonunit employees. On brief, Racetrack contends that
providing the Union with the addresses and telephone numbers of non-
unit employees might expose it to identity theft claims if that informa-
tion is mishandled. In ordering Racetrack to furnish the requested
information about nonunit employees, “we do not preclude the Respon-
dent, at the compliance stage of this case, from making ‘a particularized
showing’ of legitimate and significant confidentiality concerns related
to specific information requested by the Union that must be balanced
against the Union’s need for that information.” National Broadcasting
Co., 352 NLRB 90, 91 fn. 2 (2008) (citing Jacksonville Area Assn. for
Retarded Citizens, 316 NLRB 338, 341 fn. 14 (1995)).
Chairman Schaumber notes that in raising its confidentiality con-
cerns, Racetrack failed to “offer to accommodate both its concern and
its bargaining obligations.” Wisconsin Bell, Inc., 346 NLRB 62, 64
(2005) (citing SBC California, 344 NLRB 243, 243 fn. 3 (2005)).
Where, as here, a union requests nonunit information based on its
belief that a single-employer relationship exists, it must demonstrate a
reasonable objective basis for that belief. See generally Contract
Flooring Systems, 344 NLRB 925, 925 (2005) (citing Shoppers Food
Warehouse, 315 NLRB 258, 259 (1994)); Cannelton Industries, 339
NLRB 996, 997 (2003) (citations omitted). Under Board law, “the
requesting union need not inform the signatory employer of the factual
basis for its requests, but need only indicate the reason for its request.”
Contract Flooring, 344 NLRB at 925 (quoting Corson & Gruman Co.,
278 NLRB 329, 334 (1986), enfd. 811 F.2d 1504 (4th Cir. 1987)).
Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Racetrack Food Services,
Inc., Bensalem, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.
Randy M. Girer, Esq., for the General Counsel.
Henry E. Van Blunk, Esq., of Newtown, Pennsylvania, for the
Respondent Employer.
Arlus J. Stephens, Esq., of Washington, D.C., for the Charging
Party Union.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on March 10, 2008.
The original charge was filed by UNITE HERE, LOCAL 274
(herein Union) on February 7, 2007. First, second and third
amended charges were filed by the Union on March 23, April
16, and May 13, 2007, respectively. After an investigation by
Region 4 and the issuance of a memorandum from the Division
of Advice on November 26, 2007, the Union withdrew certain
allegations. The Regional Director approved the partial with-
drawal on December 14, 2007. A complaint and notice of hear-

Chairman Schaumber acknowledges this as current Board law and
applies it for the purpose of deciding this case. See generally Contract
Flooring, 344 NLRB at 925.
We agree with the judge that Racetrack violated Sec. 8(a)(1) and (5)
by closing the Turfside Restaurant and Bar on Wednesday and Thurs-
day nights without first providing the Union notice and an opportunity
to bargain over the matter. Racetrack argues that the management-
rights clause in the parties’ then-expired contract permitted this con-
duct. As the judge found, however, “any purported waiver of a union’s
right to bargain in a management-rights clause does not survive the
expiration of the agreement, absent evidence of the parties’ intention to
the contrary.” The Bohemian Club, 351 NLRB 1065, 1067(2007).
There is no such evidence in this case.
Chairman Schaumber acknowledges that The Bohemian Club repre-
sents current Board law and applies it for the purpose of deciding this
case. See Beverly Health & Rehabilitation Services, 346 NLRB 1319,
1319 fn. 5 (2006).
The judge observed, among other things, that Racetrack would be
obligated to bargain over the effects of its decision concerning the
Turfside Restaurant and Bar even if the decision itself were not a man-
datory subject of bargaining. In light of our finding that this decision
was a mandatory subject of bargaining, we find it unnecessary to reach
this issue.
3 The judge’s remedy provides that Racetrack make whole any em-
ployees adversely affected by its unlawful closing of the Turfside Res-
taurant and Bar, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950). However, as this unlawful conduct did not result in cessation
or denial of employment, any make-whole award should instead be
calculated as prescribed in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987). See CAB
Associates, 340 NLRB 1391, 1393 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD688
ing was issued on December 28, 2007, and an amendment to
the complaint issued on January 17, 2008. The complaint al-
leges, inter alia, that Racetrack Food Services, Inc. and Casino
Food Services, Inc. (RFS, Racetrack, and CFS, Casino, or Re-
spondents) constitute a single employer. The complaint further
alleges that Respondents violated Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act), by failing to respond
to the Union’s information requests and by unilaterally chang-
ing terms and conditions of employment for bargaining unit
employees. In their answer, Respondents denied single-
employer status and all substantive allegations and raised an
affirmative defense that the Board should not assert jurisdiction
under Section 103.3.1
At the hearing, the General Counsel and Respondent entered
into a partial settlement of the issues in this case. The Charging
Party objected to this partial settlement. The parties were given
a specified period of time to file briefs in support of their re-
spective positions. After receiving and considering these briefs,
I issued my Order approving partial settlement and closing the
record in this case. My reasons for approving the partial settle-
ment are set forth in the Order and are incorporated herein by
reference.
Following approval of the partial settlement, the following
complaint allegations remain for determination:
1. Whether Respondent Racetrack violated the Act by
failing and refusing to provide the Union the following re-
quested information:
a. A list of the names, addresses and telephone numbers of
CFS employees.
b. Identity of all managers, supervisors, forepersons or other
supervisory persons with authority to hire, fire, transfer, sus-
pend, lay off, recall, promote, discharge, assign, reward or
discipline employees, or responsibly direct employees, or to
adjust their grievances, or effectively recommend such action,
with respect to employees in racing operations and employees
in slot gaming operations, respectively, including the indi-
viduals’ titles and dates of employment.
c. The identity of all individuals actively involved in day-to-
day management of racing operations and slot gaming opera-
tions, including their dates of employment and each of the du-
ties.
2. Whether Respondent Racetrack violated the Act by
closing the fifth floor dining room and bar (Turfside Ter-
race Restaurant and Bar) on Wednesday and Thursday
nights, without giving the Union an opportunity to bargain
over that decision and its effects.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Respondent, Charging Party, and the General Counsel, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondents Racetrack Food Services, Inc. and Casino Food
Services, Inc., corporations, have admitted the jurisdictional

1 Respondent has withdrawn this defense.
allegations of the complaint. They provide food and beverage
services at Philadelphia Park Racetrack in Bensalem, Pennsyl-
vania. They admit and I find that they are employers 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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Commencing on May 10, 2000, RFS began providing food
and beverage concessions at the Philadelphia Park Racetrack
facility. At the same time, RFS entered into a collective-
bargaining agreement with the Union for the period May 10,
2000, through November 20, 2003. RFS and the Union ex-
tended the parties’ contract through June 30, 2006. The contract
was further extended by the parties to August 31, 2006. The
Union represents a unit of Respondent’s employees described
as follows:
All full-time and regular part-time bartenders, bus persons,
cashier-counterpersons, cooks, utility persons, dishwashers,
waitstaff and commissary helpers, but excluding hostesses,
captains, maitre’d’s, supervisory chefs, supervisory employ-
ees, managerial or foreman employees, security personnel,
watchmen, professional employees, office or secretarial em-
ployees, guards and supervisors as defined in the Act, and
employees currently represented by other labor organizations.
Prior to June 2006, RFS operated concession areas open to
the public on the first, third, and fifth floor and an outside bar
and patio area at the Philadelphia Racetrack facility. Addition-
ally, RFS operated out of kitchens on the first and third floors.
In 2006, the Pennsylvania Gaming Board issued a license to
Greenwood Gaming and Entertainment, Inc., to operate slot
machines at Philadelphia Park. As a result, renovations to the
building were made to allow for the introduction of slot ma-
chines. The food and beverage concession for the casino areas
was awarded to Casino Food Services, Inc. Commencing in the
summer of 2006, RFS no longer provided food and beverage
concessions on the first and third floors. RFS never bargained
with the Union regarding RFS no longer providing food and
beverage concessions on the first and third floors.
On January 9, 2007, the Union requested that the parties
commence bargaining. The parties agreed to meet on January
30, 2007. On January 17, 2007, the Union sent an information
request regarding both bargaining unit and non-bargaining unit
information. By letter dated January 26, 2007, RFS advised it
was only authorized to bargain over RFS employees.
On February 7, the Union filed a charge against RFS alleging
an unfair labor practice for failing to negotiate a new collective-
bargaining agreement that would include individuals not em-
ployed by RFS and for failing to provide the requested informa-
tion.
B. The Relevant Facts Relating to the Issues
At the hearing, the parties entered into a stipulation of facts
and introduced into evidence General Counsel’s exhibits 1
through 25. The parties stipulate as follows:
RACETRACK FOOD SERVICES 689
1. Philadelphia Park Casino and Racetrack (“Philadel-
phia Park”) is a duly registered fictitious name used for the
operation of a racetrack and casino located at 3001 Street
Road in Bensalem, Pennsylvania.
(a) The racetrack dates back to 1974 (when it was
known as Keystone Park).
(b) Greenwood Racing, Inc. (“Greenwood”), through
its subsidiaries, is the current owner and operator of Phila-
delphia Park.
(c) Since at least the 1980s, Philadelphia Park has pro-
vided customers with live thoroughbred horse race meets
and more recently simulcast thoroughbred horse trotter
race meets with wagering, through licensing from the
Pennsylvania State Horse Racing Commission.
(d) The Commission issued a license to Keystone Turf
Club, Inc. and a license to Bensalem Racing Association,
Inc. (“Keystone/Bensalem”), both subsidiaries of Green-
wood.
2. In 2005, Greenwood Gaming and Entertainment,
Inc. (“GG&E”), a subsidiary of Greenwood G&E Holding,
Inc., which is a subsidiary of Greenwood, obtained a li-
cense from the Pennsylvania Gaming Control Board to
operate slot machines at Philadelphia Park.
(a) Around mid-December 2006, slot machines be-
came operational at Philadelphia Park.
(b) There are approximately 2,700 slot machines in
operation at Philadelphia Park.
3. The facility at Philadelphia Park currently consists
of a racetrack and six-story grandstand building adjacent
to the racetrack.
(a) Prior to June 2006, the six-story building housed
food and beverage concessions, pari-mutuel betting and
other services for racetrack patrons.
(b) Prior to June 2006, the food and beverage conces-
sion operations at Philadelphia Park consisted of the fol-
lowing:
i. 1st Floor—bar called the “Finish Line,” dining
room; a concession stand selling hot dogs and burgers; and
a second concession stand selling hotdogs and cans of beer
on the weekends.
ii. 3rd Floor—restaurant and bar called the “Sports
View Bar & Grill,” and a concession stand selling hot
dogs and burgers.
iii. 5th Floor—bar in the dining room, and dining
room food service.
iv. Outside—bar and patio area, called “My Juliette,”
located next to the racetrack and open during the summer
v. Kitchen—Kitchens were located on the 1st and 3rd
floors.
4. In April 2000, Keystone/Bensalem contracted with Race-
track Food Services, Inc. (RFS), a subsidiary of Greenwood, to
provide food and beverage services at Philadelphia Park.
(a) From May 10, 2000 through November 2006, all Phila-
delphia Park food and beverage concessions were serviced by
RFS.
i. Prior to May 10, 2000 all food and beverage concessions
were provided by companies not affiliated with Greenwood.
(b) As of December 2006, RFS employed about 45-50 em-
ployees.
5. Since May 10, 2000, UNITE HERE Local 274 (Union)
represented the RFS employees.
(a) From 1982 to May 10, 2000, the Union represented the
employees of Filly Foodservice Company, Inc. and its prede-
cessor companies (not affiliated with Greenwood), which pro-
vided food and beverage services at Philadelphia Park.
(b) The most recent contract between RFS and the Union
was effective from May 10, 2000 to November 20, 2003. (GC
Exh. 3.)
(c) RFS and the Union extended this contract to June 30,
2006 through a Memorandum of Understanding. (GC Exh. 4.)
(d) RFS and the Union further extended the contract to Au-
gust 31, 2006. (GC Exh. 21.)
6. During 2005 and 2006, Philadelphia Park was renovated
to allow for the introduction of the casino and slot machines.
The six story grandstand building was restructured, as follows:
i. 1st Floor—Casino operation: the “Poker Bar,” and a
concession stand called the “Grab & Go.”
ii. 2nd Floor—Business offices.
iii. 3rd Floor—Casino operation: Steak house, buffet,
the “Circle Bar,” and a kitchen.
iv. 4th Floor—Kitchen, providing food preparation
and storage for Casino operations and for Racetrack opera-
tions. The renovations created separate workstations for
Casino operations and for Racetrack operations. The main
storage area, containing foodstuffs including drygoods and
frozen foods, was used for both Casino and Racetrack op-
erations. Cooking utensils were used commonly by both
Casino and Racetrack operations.
v. 5th Floor—Racetrack operation; Turfside Terrace
Restaurant/Bar (with 400 person dining room), the Finish
Line Bar, one concession stand.
7. Since December 2006, the casino is open to the public 24
hours a day, 365 days a year.
8. There is live horse racing on Saturdays, Sundays, Mon-
days and Tuesdays, with occasional Wednesdays and Fridays.
(a) Starting in June 2006, the 5th floor racetrack Turfside
Terrace Restaurant/Bar was open to the public Wednesday,
Thursday, Friday and Saturday nights, and 7 days a week dur-
ing the daytime. The Turfside Terrace Restaurant/Bar opened at
11 a.m. every day. On Wednesday, Thursday, Friday and Sat-
urday, the Turfside Terrace Restaurant/Bar closed at around
9:30 or 10 p.m.
(b) Starting in June 2006, the Finish Line Bar was open to
the public 7 days and 7 nights a week, starting from 11:00 AM
and closing at around 11:30 p.m. or 12 a.m.
9. In November 2006, Casino Food Services, Inc. (CFS), a
subsidiary of Greenwood, was incorporated.
(a) In November 2006, GG&E entered into an agreement
with CFS to provide food and beverage concessions at the ca-
sino at Philadelphia Park.
(b) In November and December 2006, approximately 200
CFS food and beverage managers and employees were hired, in
the following classifications:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD690
i. bartenders, bar backs, bus persons, cocktail servers,
cooks, counter persons, dishwashers, food runners,
hosts/hostesses, pantry workers, servers, service bar work-
ers and commissary employees.
ii. Specifically, CFS hired the following number of
employees in each position: bartender-28; buffet server-
30; grab n go-7; cooks-31; sous-chef-3; wait staff-14; Par-
kettes (cocktail servers)-43; steward-11; hostess-1.
10. RFS is owned by Greenwood.
(a) Its directors are Michael A. Jaffe, Anthony D. Ricci and
Matthew W. Hayes.
(b) Its officers are Michael A. Jaffe (President), Anthony D.
Ricci (Vice President) and Matthew W. Hayes (Secre-
tary/Treasurer).
(c) Day to day management of RFS is performed by Michael
A. Jaffe, Ken Trout (head cook), Janet Gannon (guest service
manager) and Tom Trenich (supervisor).
11. CFS is owned by Greenwood. In December 2006 and
January 2007:
(a) Its directors were Francis E. Perko, Jr., Francis E.
McDonnell and Matthew W. Hayes.
(b) Its officers were Francis E. Perko, Jr. (President), Francis
E. McDonnell (Secretary) and Matthew W. Hayes (Treasurer).
(c) Day to day management of CFS was performed by the
President and numerous other managers and supervisors.
12. In December 2006 and January 2007, the Union was in
possession of the following information in connection with its
belief that RFS and CFS constituted a single employer. RFS
does not stipulate to the factual accuracy of all the following
information; RFS stipulates that the Union believed in good
faith that the following information was correct and accurate.
(a) Common ownership: Mr. Watche “Bob” Manoukian is
the majority owner of the parent holding company (Greenwood
Racing, Inc.), RFS and CFS.
i. Greenwood is the majority shareholder (100%) of
Keystone and Bensalem.
ii. GG&E is owned 100% by Greenwood G&E Hold-
ing, which is owned 100% by Greenwood.
(b) Common management: RFS and CFS have corporate of-
ficials and managers in common with each other and with
Greenwood and its subsidiaries.
i. Andrew Green is an employee of Green Racing
Management Co. (“Green Racing Management”), a sub-
sidiary of Greenwood that provides administrative support
to the Greenwood subsidiaries.
A. Andrew Green is identified on the Philadelphia
Park website as Senior Vice President of Administration.
ii. Robert Green is brother to Andrew Green
A. Robert Green is president of Green Racing Man-
agement.
B. Robert Green was identified to the Pennsylvania
Gaming Control Board as “director, chairman and share-
holder” of the gaming subsidiary of Philadelphia Park.
iii. Anthony Ricci is an officer for RFS.
A. Anthony Ricci is Secretary/Treasurer for Green
Racing Management.
B. Anthony Ricci is an officer or director for
Greenwood, Bensalem and Keystone.
C. Anthony Ricci is identified on the Philadelphia
Park website as Chief Financial Officer.
D. Anthony Ricci was described in May 2006 to the
Horse Racing Commission as “an integral member of the
management team since 1993.”
iv. Michael Jaffe is President of RFS.
A. Michael Jaffe is identified on the Philadelphia
Park website as Vice President of Food and Beverage.
v. During October and November 2006, interviews
were conducted to hire CFS employees.
A. The CFS interviews were conducted by Dave
Gottlieb (RFS manager at that time), David Jonas (Presi-
dent and CEO of Greenwood Gaming Services, Inc., and
CEO of Greenwood Gaming & Entertainment, Inc., which
are both subsidiaries of Greenwood), Robert Green, An-
drew Green and Wendy Hamilton.
vi. During November 2006, Michael Jaffe (RFS presi-
dent), David Gottlieb (RFS supervisor), Francis Perko
(CFS officer), Ken Trout (RFS head chef), Marc Wirzber-
ger (CFS supervisor) and Michael Coughlin (RFS supervi-
sor, who became a CFS supervisor) supervised both RFS
and CFS employees.
vii. In mid-December 2006, on the loading dock, CFS
manager (Storeroom supervisor) Nicole McKeown di-
rected RFS employees to unload from three trucks, goods
for both CFS and RFS.
A. Unloading goods from trucks was considered
CFS work.
viii. In late December 2006/ early January 2007, CFS
supervisor Michael Coughlin directed RFS employees to
put away stock for both CFS and RFS in 4th floor store-
room.
A. This was considered CFS work.
(c) Centralized control of labor relations
i. In 2003, Andrew Green represented RFS in negotia-
tions with the Union.
ii. During 2005 and 2006, Andrew Green met with
Union Joint Board Manager Lynne Fox about negotiating
a new contract once the casino became operational. Green
told Fox that he would be the negotiator for all labor un-
ions at the Park.
iii. During the early summer of 2006, Andrew Green
invited Union bargaining representative Lynne Fox and
Union Business Agent Andre Vigliarolo to visit Philadel-
phia Park to meet with the new Vice President of Human
Resources. Green didn’t state her name. When the Union
representatives met Green at Philadelphia Park, he said
that the Vice President of Human Relations too busy to
meet. Green told them: “You will be dealing with me
anyway for negotiations.”
iv. During summer 2006, Green invited Fox twice to
the Philadelphia Park facility to see the progress of reno-
vations.
v. On June 28, 2006, Andrew Green emailed Lynne
Fox with a list of proposed job categories for the tempo-
RACETRACK FOOD SERVICES 691
rary casino facility and suggested starting pay rates. The
emailed list of job classifications for casino employees in-
cluded bar back, bartender, bus, cocktail, cooks, counter,
dishwasher, food runner, host, pantry, server, service bar
and commissary. (GC Exh. 5.)
vi. During mid- or late November 2006, Union repre-
sentatives met with Green and Anthony Ricci at an office
located at Philadelphia Park. At no time during the meet-
ing did Green or Ricci raise an argument that there would
be any separation of food and beverage work at the Park.
During the meeting Ricci stated that the company would
agree to include in the established RFS bargaining unit all
of the new CFS classifications except for the kitchen and
cocktail servers. The Union did not agree to this.
vii. About a week later, in a telephone conversation
between Fox and Ricci, Ricci offered to include in the
RFS bargaining unit all the CFS classifications, including
the kitchen servers, but not the cocktail servers. Fox re-
fused this offer.
(d) Interrelation of operations
i. From mid-November to mid-December 2006, RFS
employees trained employees who would be working for
CFS when the casino opened.
ii. In October and November 2006, RFS employees
supplied beverages to the executives who were interview-
ing applicants for CFS food and beverage positions. RFS
employees prepared cookies for interviewees and hot
meals for interviewers. The interviews occurred on a floor
serviced by RFS employees.
iii. In late November and early December 2006, RFS
head chef Ken Trout told RFS employees to keep CFS
employees busy. RFS employees trained CFS employees
in bar backing. The CFS employees performed RFS work
duties for a few days.
iv. From mid-November to mid-December 2006, RFS
cooks trained new CFS buffet cooks in food preparation
and in use of kitchen equipment. The CFS cooks began
using kitchen equipment in the 4th floor kitchen to prepare
food for the 3rd floor CFS buffet line.
v. In December 2006, CFS supervisor Mike Coughlin
directed RFS employees to put skids of food deliveries
away in the storeroom.
vi. In December 2006 CFS manager Nicole McKeown
directed RFS employees to unload three trucks full of sur-
veillance equipment for the casino.
vii. In early 2007, CFS supervisors came to the 5th
floor to inform employees that there was overflow from
the casino buffet on the 3rd floor, and that patrons would
be directed to the racetrack dining room on the 5th floor.
Thereafter 25 people came up to the dining room.
viii. In December 2006 and early 2007, RFS and CFS
cooks worked side by side in the 4th floor kitchen, using
the same equipment including knifes, ladles, pans and
other kitchen items.
ix. In December 2006 and early 2007, RFS and CFS
cooks used the same prep food in the 4th floor kitchen, in-
cluding bacon, chopped lettuce, tomatoes and sliced
meats.
x. In December 2006 and early 2007, all pans and
dishes from the 3rd floor casino buffet come to the 4th
floor to be washed. All pans and other kitchen items were
washed in the 4th floor kitchen, regardless whether they
were used by CFS or RFS cooks.
xi. In December 2006 and early 2007, RFS and CFS
cooks assisted each other on their work lines: for example,
helping out when needed by opening/shutting the door to
an oven, carrying heavy items, or removing items from the
stove.
xii. From December 2006 to March 2007, CFS and
RFS used the same commissary area to get supplies and
food prep materials. Until March no forms were required
to be filled out to request supplies.
xiii. On December 17, 2006 a party was held on the
5th floor (Racetrack) with two CFS cooks cooking the
food and an RFS server and RFS bus person providing
food service to the party.
xiv. In December 2006, CFS cooks began preparing
food for the casino buffet using RFS line equipment such
as fryer, charbroiler and steamer.
13. In February 2007, the Union learned that Michael
Jaffe (president of RFS) and David Jonas conferred with a
representative from the Pennsylvania State Department of
Health concerning problems at a bar on the 3rd floor,
which is entirely a casino operation.
(a) RFS does not stipulate to the factual accuracy of
this information. RFS stipulates that the Union believed in
good faith that this information was correct and accurate.
14. Subsequent to the filing of the charge in this mat-
ter, the following facts relevant to the Single Employer is-
sue were disclosed by RFS to the Regional Director in
connection with her investigation of this charge, although
all this information was not necessarily known to the Un-
ion in December 2006 and January 2007:
(a) Common ownership: Mr. Watche “Bob” Manoukian is
the majority owner (approximately 91%), through holding
companies, of the parent holding company (Greenwood).
i. Greenwood is the majority shareholder (100%) of
CFS and RFS.
(b) Common management: RFS and CFS have corporate of-
ficials in common with each other and with Greenwood and its
subsidiaries.
i. Anthony Ricci (Vice President of RFS) holds the
following positions:
A. Secretary/Treasurer and Director for Green-
wood.
B. Treasurer and Director for GG&E.
C. Secretary/Treasurer and Director for Bensalem.
D. Secretary/Treasurer and Director for Keystone.
E. Director for Greenwood G&E Holding, Inc.
F. Secretary/Treasurer and Director for Green Rac-
ing.
ii. Matthew Hayes is a director for both RFS and CFS.
Hayes holds the following positions:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD692
A. Secretary/Treasurer for RFS.
B. Treasurer for CFS.
C. Director and Treasurer for Greenwood Gaming
Services, Inc., another subsidiary of Greenwood.
D. Secretary/Treasurer for Keystone.
iii. Robert Green (brother to Andrew Green) holds the
following positions:
A. President, Chairman of the Board and Director
of Greenwood G&E Holdings, Inc.
B. President and Director of Greenwood Racing.
C. President, Chairman of the Board and Director
of GG&E.
D. President and Director of Bensalem.
E. President and Director of Keystone.
15. The Union was in possession of the following informa-
tion in December 2006 and January 2007, in connection with its
belief that RFS and CFS employees constituted a single bar-
gaining unit (in addition to the information stated above in
paragraph 12, related to common management, common labor
relations and interrelations of operations).
(a) RFS and CFS employees use the same parking lot.
(b) RFS and CFS employees use the same employee entrance
to Philadelphia Park.
(c) RFS and CFS employees use the same swipe card loca-
tions to clock in.
(d) During this time period, RFS and CFS employees used
the same employee cafeteria.
(e) RFS and CFS employees share one loading dock where
all supplies arrive.
(f) RFS and CFS employees use the same payroll office on
the 2d floor.
(g) A single payroll company (Green Racing) provides pay-
roll services for multiple companies at Philadelphia Park, in-
cluding CFS and RFS.
(h) RFS and CFS employees smoke in the same smoking
cafeteria.
(i) RFS and CFS employees in similar classifications wear
the same or similar uniforms.
(j) RFS and CFS employees wear uniforms identified as
Philadelphia Park.
(k) RFS and CFS employees use the same requisition system
for supplies.
(l) RFS and CFS employees share the same locker room on
the 2d floor.
(m) RFS and CFS applicants may apply for jobs on the
Philadelphia Park website.
16. In the charge and amended charges, the Union has al-
leged, inter alia, that RFS and CFS were a single employer and
that the RFS and CFS employees constituted a single bargain-
ing unit. (See Charge filed February 7, 2007, First Amended
Charge filed March 22, 2007, Second Amended Charge filed
April 16, 2007 and Third Amended Charge filed May 14, 2007.
[(GC Exhs. 1((a)(c)(g) and (e).]
17. The Single Employer issue was settled pursuant to a uni-
lateral Informal Settlement Agreement approved by the Admin-
istrative Law Judge. (GC Exh. 20.)
18. The Division of Advice issued a Memorandum dated
November 26, 2007 finding that the CFS employees were not
appropriately included in the RFS bargaining unit. This Memo-
randum was released to the public. (GC Exh. 18.) On December
14, 2007, the Union withdrew the allegation. (GC Exh. 19.)
19. The Union was concerned about the loss of work per-
formed by RFS employees because once the Casino opened
CFS employees began performing food and beverage work on
the first floor that had been historically performed by RFS em-
ployees prior to the renovations.
20. The Union believed that it would represent all food and
beverage employees employed at Philadelphia Park and if not
all food and beverage employees, then those employees who
were performing food and beverage work in locations where
Union-represented employees historically performed the work.
21. On January 9, 2007, Fox sent the attached letter to An-
drew Green. (GC Exh. 6.)
22. Green responded to Fox by phone verbally and agreed to
meet with Fox to negotiate on January 30, 2007.
23. On January 17, 2007, Fox sent the attached letter to An-
drew Green. (GC Exh. 7.)
24. RFS received the January 17, 2007 letter.
25. On January 17, 2007, Fox sent the attached information
request to Andrew Green. (GC Exh. 8.)
26. RFS received the January 17, 2007 information request.
27. On January 26, 2007, RFS president Jaffe sent the at-
tached letter to the Union. (GC Exh. 9.)
28. In a meeting on January 30, 2007 with the Union, Jaffe
and RFS counsel informed the Union representatives that the
newly hired CFS employees were a separate bargaining unit
and that they did not intend to negotiate regarding those work-
ers. RFS representatives stated that they would not respond to
the Union’s January 17 information request. Union representa-
tive Lynne Fox stated that it would be difficult for the Union to
negotiate intelligently on behalf of RFS workers without the
requested information.
29. On June 7, 2007, Fox sent the attached information re-
quest to Andrew Green. (GC Exh. 10.)
30. RFS received the June 9, 2007 information request.
31. On June 9, 2007, Jaffe sent the attached letter to Fox in
response to her June 7, 2007 letter. (GC Exh. 11.)
32. On June 14, 2007, Fox sent the attached letter to Jaffe.
(GC Exh. 23.)
33. On June 26, 2007, Jaffe sent the attached letter to Fox.
(GC Exh. 12.)
34. On July 3, 2007, Fox sent the attached letter to Jaffe.
(GC Exh. 13.)
35. On July 5, 2007, Jaffe sent the attached letter to Fox.
(GC Exh. 14.)
36. On July 10, 2007, Fox sent the attached letter to Jaffe.
(GC Exh. 15.)
37. On July 12, 2007, Jaffe sent the attached letter to Fox.
(GC Exh. 16.)
38. On July 13, 2007, Fox sent the attached letter to Jaffe.
(GC Exh. 17.)
39. The Union sought the information in its January 17 and
June 7, 2007 information requests in connection with its dispute
with RFS concerning, and to pursue its investigation into (a)
whether a single-integrated employer situation existed, (b)
whether the RFS and CFS employees constituted a single unit
RACETRACK FOOD SERVICES 693
and (c) whether RFS bargaining unit work was being performed
by CFS employees.
40. The Union sought the information in its January 17 and
June 7, 2007 information requests in connection with its repre-
sentational responsibilities to police the contract with RFS and
preserve work for bargaining unit employees.
(a) The Union had concerns about loss of work to the bar-
gaining unit, including:
i. Its good faith belief that CFS employees (cooks)
were doing RFS work, in November and December 2006;
ii. The elimination, starting April 18, 2007, of em-
ployee shifts on Wednesday and Thursday nights in the
5th floor Turfside Terrace Restaurant/Bar; and
iii. The assignment of food-and-beverage work to CFS
employees in the My Juliette patio area, during the sum-
mer 2007, as described below in paragraph 46(a).
(b) The Union did not inform RFS, at the time that it made
its January 17 and June 7, 2007 information requests, that the
information sought was relevant to its concerns about policing
the Union’s contract with RFS and preservation of work for
bargaining unit employees.
i. The Union did inform RFS of its concerns about
loss of bargaining unit work in its letter dated July 10,
2007. (GC Exh. 15.)
(c) The Union learned on November 26, 2007 that the Divi-
sion of Advice had determined that the CFS employees and
RFS employees did not constitute a single bargaining unit.
41. The information request allegation was partially settled
pursuant to a unilateral Informal Settlement Agreement ap-
proved by the Administrative Law Judge. (GC Exh. 20.)
(a) In compliance with the Informal Settlement Agreement,
on March 9 and 10, 2008, RFS provided to the Union the
documents attached as GC Exhibit 24.
42. To date, RFS has failed to provide the following infor-
mation in response to the Union’s information requests:
(a) As set forth in subparagraph 6(a)(1) of the Complaint
specifically a list showing all CFS food and beverage workers
including each employee’s name, address and telephone num-
ber and
(b) As set forth in subparagraphs 6(a)(3) and 6(a)(4) of the
Complaint.
43. RFS will consent to and will comply in full with any fi-
nal Order issued directing it to respond to the Union’s informa-
tion requests.
44. RFS will not defend against production of the informa-
tion requested, if so ordered, on the ground that it (a) is not a
single employer with CFS or (b) is not in possession of the
information.
45. In June, 2006, RFS employees began working in the 5th
floor Turfside Terrace Restaurant/Bar. However there are no
signs directing patrons to the 5th Turfside Terrace Restau-
rant/Bar or the Finish Line Bar, resulting in reduced patronage
for Turfside Terrace Restaurant/Bar.
46. In April 2007, without giving notice to the Union and
without giving the Union an opportunity to bargain, RFS closed
the 5th floor (Racetrack) Turfside Restaurant and Bar on
Wednesday and Thursday nights, eliminated employee shifts
and reduced hours worked by RFS employees, because of lack
of business on those nights and because of costs, including
labor costs.
(a) As of the summer 2006, in the grandstand building, all
racing food and beverage outlets were located on the 5th floor.
i. RFS employees also traditionally staffed, on Satur-
days and Sundays during the summer months, food and
beverage outlets known as My Juliette and the patio area,
located outside by the racetrack.
ii. During the summer 2007, My Juliette and the Patio
area were staffed on several nights by CFS employees.
Prior to summer 2007, only RFS employees had staffed
the My Juliette and patio area food and beverage outlets.
(b) The 5th floor restaurant/bar is known as Turfside Ter-
race.
(c) Another bar on the 5th floor is known as the Finish Line
bar.
(d) The sole access to the Turfside Terrace and Finish Line
Bar is by elevator, stairway or escalator. The Philadelphia Park
patrons usually use the elevator.
(e) The Turfside Terrace Restaurant/Bar and the Finish Line
Bar were closed for renovations in 2004.
(f) The Turfside Terrace Restaurant/Bar and the Finish Line
Bar reopened in June 2006.
(g) In December 2006, a sign was posted at the elevators in-
dicating that racing was located on the 5th floor.
(h) From December 2006 to the present, there were no signs
on the casino floors which informed Philadelphia Park patrons
that there were any restaurants or bars on the 5th (racing) floor.
47. The hours of the Turfside Terrace Restaurant/Bar, when
it re-opened, were Monday through Sunday (day time) and
Wednesday through Saturday evenings.
(a) From the summer 2006 through April 18, 2007, RFS em-
ployees staffed the Turfside Terrace Restaurant/Bar working
the following shifts:
i. Monday through Sunday, 10 AM to 4:30 PM
ii. Wednesday through Saturday: 4:30 PM to close (9
to 10 PM, or earlier if there were no customers).
(b) The employees per shift were scheduled as follows:
i. All shifts: 1 bartender, 2 cooks, 1 dishwasher
ii. Servers:
A. Saturday day: 6
B. Saturday night: 2
C. Sunday: 5
D. Friday night: 2
E. Wednesday and Thursday nights: 1
(c) Scheduling was done on a weekly basis by Kylie Waters,
guest services manager, or by a RFS employee, Janet Gannon.
(d) Weekly schedules were kept by the RFS manager in a
book located at guest services on the 5th floor.
48. In April 2007, RFS decided to close the Turfside Terrace
Restaurant/Bar on Wednesday and Thursday nights only.
(a) There was no other change to the operation, décor or
menu of the Turfside Terrace Restaurant at that time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD694
(b) Michael Jaffe was the individual responsible for this de-
cision.
49. The Turfside Terrace Restaurant/Bar was closed, effec-
tive April 18, 2007, on Wednesday and Thursday nights only,
because of
(a) declining revenues due to a lack of patronage and
(b) costs of operation including the labor costs associated
with employing waitress(es), bartender(s), cook(s), dish-
washer(s) and other employees in the Turfside Terrace Restau-
rant/Bar on Wednesday and Thursday nights.
50. Michael Jaffe informed employees of his decision that
the Turfside Terrace Restaurant/Bar was being closed on
Wednesday and Thursday nights due to lack of work.
(a) At the time that Michael Jaffe informed the employees of
his decision to close the Turfside Terrace Restaurant/Bar on
Wednesday and Thursday nights, he also informed Cynthia
Cramer.
i. Cynthia Cramer had been the Union’s shop steward.
ii. Cynthia Cramer has resigned her position as shop
steward from the Union in February 2007.
iii. The shop steward is not authorized by the Union to
act as the Union’s agent to receive notice of unilateral
changes.
iv. The contract does not authorize the shop steward to
act as the Union’s agent to receive notice of unilateral
changes.
v. RFS did not give advance notice to the shop stew-
ard that the Turfside Terrace Restaurant/Bar was being
closed on Wednesday and Thursday nights. Jaffe informed
Cynthia Cramer after the decision had already been made.
51. All employee shifts on Wednesday and Thursday nights
were eliminated, as of April 18, 2007.
52. All RFS employees, who had previously worked in the
5th floor Turfside Terrace Restaurant/Bar on Wednesday and
Thursday nights, were transferred to other shifts.
(a) At least one employee (Michelle Pollak) lost a shift due
to RFS’s decision to close the Turfside Terrace Restaurant/Bar
on Wednesday and Thursday nights. Her shift was changed
from Saturday/Sunday (double shifts) and Wednes-
day/Thursday nights to the following: Saturday/Sunday (double
shifts), every Tuesday (day shift) and every other Monday. Her
work hours were reduced by one shift, every other week.
(b) Several other employees, including Mark Coughlin,
Patricia Cramer and Denise Phillips, who had worked on
Wednesday or Thursday nights, were transferred to other shifts.
(c) Employees who were transferred from Wednesday or
Thursday night shifts to other shifts may have “bumped” em-
ployees with lesser seniority from the shifts that they had been
working.
(d) RFS weekly payroll records are attached as an exhibit.
(GC Exh. 22.)
53. The 5th floor Turfside Terrace Restaurant/Bar has been
closed since around April 18, 2007, to the present, on Wednes-
day and Thursday nights only.
54. RFS did not give notice to the Union at any time regard-
ing:
(a) Its decision to close the 5th floor Turfside Terrace Res-
taurant/Bar on Wednesday and Thursday nights;
(b) Its decision to eliminate employee shifts in the 5th floor
Turfside Terrace Restaurant/Bar on Wednesday and Thursday
nights;
(c) The effects on the RFS bargaining unit of the closure of
the 5th floor Turfside Terrace Restaurant/Bar and elimination
of employee shifts on Wednesday and Thursday nights.
55. The Union did not learn of the closing of the 5th floor
Turfside Terrace Restaurant/Bar on Wednesday and Thursday
nights until after it had occurred.
(a) The Union learned from employees of the closing of the
5th floor Turfside Terrace Restaurant/Bar on Wednesday and
Thursday nights.
56. RFS has not bargained with the Union regarding:
(a) Its decision to close the 5th floor Turfside Terrace Res-
taurant/Bar on Wednesday and Thursday nights;
(b) Its decision to eliminate employee shifts in the 5th floor
Turfside Terrace Restaurant/Bar on Wednesday and Thursday
nights;
(c) The effects on the RFS bargaining unit of the closure of
the 5th floor Turfside Terrace Restaurant/Bar and elimination
of employee shifts on Wednesday and Thursday nights.
57. RFS has withdrawn its defense to NLRB jurisdiction in
the matter under Section 103.3 of the Act.
The exhibits are by number:
1. The formal papers in this proceeding.
2. A Motion to Amend Complaint.
3. The collective bargaining agreement between RFS
and the Union for the period of May 10, 2000 through No-
vember 30, 2003.
4. An extension of the collective bargaining agree-
ment from December 1, 2003 through June 30, 2006.
5. A letter dated June 28, 2006 listing proposed job
categories and proposed pay for each for what is called the
temporary casino facility. This letter or email was sent by
Andrew Green to the Union.
6. A letter from the Union to RFS dated January 9,
2007 requesting bargaining.
7. A letter dated January 17, 2007 from the Union to
RFS that reads:
“When we get together for negotiations on January 30, 2007,
please be prepared to discuss the gaming operations that are
just now commencing. The food and beverage employees in
those operations fall clearly within our existing bargaining unit,
or the very least, constitute an accretion to it. Nevertheless you
may not be applying the terms and conditions of the current
collective-bargaining agreement to those employees. The in-
formation request accompanying this letter is designed to de-
termined whether the agreement has in fact been violated with
[the] respect to those employees as well as to test the accuracy
of what we believe are their working conditions.
If it turns out that you are not applying the terms and condi-
tions of the agreement to the food and beverage workers de-
ployed in the gaming operations, then Local 274 will promptly
file a grievance for violation of the agreement. If you admit that
the company is not following the agreement in establishing the
terms and conditions of the employment of these workers, then
RACETRACK FOOD SERVICES 695
this letter is itself the Union’s grievance against the Company
for these violations.
In any event, at the upcoming negotiations, the Union will
want to discuss the employees being used in food and beverage
for the gaming operations. We don’t believe there are any spe-
cial circumstances that warrant different treatment of these
workers as compared to others in the unit but we wish to ex-
plore that subject to be sure.”
8. A letter dated January 17, 2007 by the Union re-
questing, inter alia, the information that is the subject of
this hearing.
9. A letter dated January 26, 2007 from RFS to the
Union which reads:
“I have been forwarded your correspondence dated
January 17, 2007, which I understand was received on
January 23, 2007, regarding negotiations for a successor
Collective Bargaining Agreement between Racetrack Food
Services, Inc. and Local 274, UNITE HERE.
Please be assured that, as President of Racetrack Food
Services, Inc., I am prepared to discuss and negotiate any
of the terms and conditions of employment for those em-
ployees of Racetrack Food Services, Inc. who perform
work within the jurisdiction of the Union and under and
pursuant to the Concession Agreement between the Em-
ployer and the Licensees of the Pennsylvania State Horse
Racing Commission. However, I do wish to avoid any
misunderstandings about the scope of negotiations.
I am only able to negotiate on behalf of Racetrack
Food Services, Inc. I am not able, nor authorized, to nego-
tiate on behalf of any other company or entity who might
conduct operations in the Philadelphia Park Grandstand
building.”
10. A letter dated June 7, 2007 from the Union to RFS
that in part reads:
“This will serve as a request for an update on bargain-
ing for the now-expired collective bargaining agreement.
As you are aware, Region 4 of the National Labor Re-
lations Board is currently considering whether the Com-
pany has violated federal labor law by, inter alia, its re-
fusal to bargain with the Union over the newly hired food
and beverage workers. We maintain that they are included
in the preexisting bargaining unit while the Company has
denied this.
Meanwhile, we intend to proceed with the negotia-
tions. Whether or not the employer agrees about whether
the casino workers are in the unit, the union needs and is
entitled to know about their terms and conditions of em-
ployment, to be able to assess what it may accomplish for
the racetrack workers in the negotiations. Therefore, we
again request the following information concerning the
food and beverage and slot attendant workers in the casino
side of the operations: [information request omitted here].
11. A letter from RFS to the Union, which reads:
“I have been forwarded your correspondence dated
June 7, 2007, which you sent to Mr. Andrew Green. As
you have been previously advised, Mr. Green does not
work for Racetrack Food Services, Inc., nor is he involved
with the negotiations for a new collective bargaining
agreement. Accordingly, all communications regarding a
new collective bargaining agreement for Racetrack Food
Services, Inc. should be addressed to my attention.
As I explained in my letter of January 26, 2007 and
when we met on January 30, 2007, I am prepared to dis-
cuss and negotiate any of the terms and conditions of em-
ployment for those employees of Racetrack Food Services,
Inc. who perform work within the jurisdiction of the Un-
ion and under and pursuant to the Concession Agreement
between the Employer and the Licensees of the Pennsyl-
vania State Horse Racing Commission. However, I am not
able, nor authorized, to provide information about any
other company or entity who might conduct operations in
the Philadelphia Park Grandstand Building.
Finally, I am somewhat confused by your statement
that the Union has been waiting for the response of Race-
track Food Services, Inc. regarding the Union’s proposals
for subcontracting and successorship. It was the Union
who broke off negotiations. I remain willing to discuss and
negotiate any of the terms and conditions of employment
for those employees of Racetrack Food Services, Inc. who
perform work within the jurisdiction of the Union and un-
der and pursuant to the Concession Agreement between
the Employer and the Licensees of the Pennsylvania State
Horse Racing Commission with you and your bargaining
committee. Kindly advise as to your availability.”
12. A letter from RFS to the Union, dated June 26,
2007. To understand this letter, the reader is referred to
Exhibit 23, which is a letter referenced in Exhibit 12. Ex-
hibit 12 reads:
“Thank you for your letter of June 14, 2007, though I
am somewhat offended that you would claim that your
dealings had always been with Andy Green. I seem to re-
call many instances when you and I met to discuss various
issues, including negotiations of a collective bargaining
agreement.
My recollection of the January 30, 2007 meeting is
also different from your recollection. I recall that you an-
nounced that since I was unable to negotiate for employees
in a separate and distinct company that you were leaving
and advised that it would be in the hands of the attorneys.
We advised several times that we would be more than
happy to discuss any issues that related to employees of
Racetrack Food Services that were members of Local 274,
but you had no substantive issues to present. You did have
language proposals on subcontracting and successorship
clauses and we did take said proposals without any
prompting. However, you along with the numerous people
you brought with you, left the negotiations once you
handed out the proposals and your prepared written state-
ment regarding employees of another employer.
As you are aware, I am only able to negotiate on be-
half of Racetrack Food Services, Inc. I am not able to ne-
gotiate on behalf of any other company or entity who
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD696
might conduct operations in the Philadelphia Park Grand-
stand Building. Further, since I do not work for Casino
Food Services I do not have any information regarding the
terms and conditions of employment for those employees
who work for a separate and distinct legal entity.”
13. A letter from the Union to RFS dated July 3, 2007,
which reads:
“Please accept this letter in response to yours of June
26. You continue on behalf of Philadelphia Park to spin
the historical facts for the Company’s benefit in the Na-
tional Labor Relations Board proceedings. The fact is that
we negotiated collective bargaining agreements with Andy
Green as the management principal. That you are ‘of-
fended’ to be reminded of the truth is ridiculous.
In that regard, please provide us with the titles of all
positions Andy Green has held with ‘Racetrack Food Ser-
vices, Inc.’ and documentation in support.
We appreciate your acknowledgement of Philadelphia
Park’s failure to respond to the Union’s bargaining re-
quests on subcontracting and successorship. You admit
that the Company took those proposals back from negotia-
tions and has never responded to either.
The Company’s excuses for failing to provide the re-
quested information are without merit and unacceptable. If
it is a simply a matter of you lacking internal authority to
provide the information, then the Company should get
someone else to provide it. Historically that was Andy
Green. Playing games with corporate identity, as the
Company is trying to do here, is no way to conduct good-
faith collective bargaining.
That said, we are available to meet for bargaining on
July 23. Unless I hear from you, we will assume that we
will meet at 11:00 a.m. Please let us know the location.”
14. A letter from RFS to the Union dated July 5, 2007,
which reads:
I see no point in continuing in this unproductive letter
writing regarding other entities and employees that operate
at the Philadelphia Park Grandstand Building. Suffice it to
say that I disagree with your position and that this will be
ultimately resolved by the legal process that you initiated
with the NLRB.
Racetrack Food Services, Inc. has not responded to
your request on subcontracting and successorship as the
Union broke off negotiations. When you left the bargain-
ing table you advised that there was no point in discussing
the issues in the contract until after the unfair labor prac-
tice you were going to file was resolved. I am more than
willing to consider these proposals in connection with a
replacement collective bargaining agreement for those
employees who work for Racetrack Food Services, Inc.
and represented by Local 274, however it is not possible to
consider these two items in a vacuum. Once I have all the
proposed items from the Union I will be in a better posi-
tion to respond.
Mr. Van Blunk and I look forward to meeting with you
on July 23, 2007 to negotiate any of the terms and condi-
tions of employment for those employees of Racetrack
Food Services, Inc. who perform work within the jurisdic-
tion of the Union and under and pursuant to the Conces-
sion Agreement between the Employer and Licensees of
the Pennsylvania State Horse Racing Commission. Please
meet with me in the waiting area on the fourth floor of the
grandstand building.”
15. A letter from the Union to RFS dated July 10,
2007 and which reads:
“This letter shall serve as a reply to yours of July 5.
Your letter does not answer our information request. First,
we have requested information about terms and conditions
for the other food and beverage workers employed at
Philadelphia Park, whom you refer to as ‘casino side’. We
are entitled to all the information we have requested be-
cause, among other reasons: 1) it is a single employer op-
eration; 2) the same corporate entities own, operate and
fund both ‘sides’ and thus their ability to pay is most cer-
tainly at issue, and 3) management is having ‘casino side”
workers do the work traditionally done by the so-called
‘racetrack side.’
The most recent information request, which you have
also failed to answer, asked for the titles of all positions
Andy Green has held with ‘Racetrack Food Services, Inc.’
and documentation in support. If the answer is ‘none’,
please just say so.
We would like responses to these information requests
before the 23rd.
Your recollection of the last bargaining session is in-
correct. At no time did the Union declare negotiations to
be over. Therefore we reject the Company’s excuse for
failing to respond to the Union’s proposals on subcontract-
ing and successorship. We note that the Company’s failure
to respond, to either proposal, continues to date.
Your new excuse for the Company’s continued failure
to respond.—i.e., that you are waiting for the Union to
give the Company a proposal on every conceivable issue
that may come up, before the Company will respond to
any of them—is unlawful.”
16. A letter from RFS to the Union and dated July 12,
2007 and which reads:
“As I stated in my letter of July 5, 2007, I am not go-
ing to continue trading letters regarding issues currently
being reviewed by the NLRB. Further, I do not intend to
debate whose recollection of the January 30, 2007 meeting
is correct as, in my estimation, it will not further the proc-
ess.
I disagree that our position on not wanting to negotiate
only two (2) issues at a time is unlawful. As previously
stated, we are willing to consider these issues or any issues
regarding the terms and conditions of employment for
those employees of Racetrack Food Services, Inc. who
perform work within the jurisdiction of the Union and un-
der and pursuant to the Concession Agreement between
the Employer and Licensees of the Pennsylvania State
Horse Racing Commission. However, it is not fair to ask
RACETRACK FOOD SERVICES 697
the Employer to address the issues piecemeal. I am not
asking you to come up with a proposal for every conceiv-
able issue, just the items you want to address in the re-
placement collective bargaining agreement. Obviously, if
an unforeseen issue arises during the course of negotia-
tions we will deal with it.
In light of the foregoing kindly advise if you still wish
to meet on July 23, 2007.”
17. A letter from the Union to RFS dated July 13,
2007, and which reads:
“In direct response to your question: ‘yes’ we do still
want to meet on July 23, 2007. However, I question Philly
Park’s good faith motive in meeting on the 23rd, as you
still refuse to directly answer the questions I have posed to
you on numerous occasions. Specifically:
Will you answer our information requests?
Will you provide this information prior to our meeting
on July 23rd?
These are not difficult questions and yet you continue
to refuse to answer. I will once again ask for your direct
and unambiguous response and you can save the choreo-
graphed editorial comments that quite obviously have been
written for you.
As to your comments on piecemeal bargaining, we will
see what transpires at the negotiations. The bottom line is
that you have still not responded to our proposals and it
certainly appears that you do not intend to.”
18. An advice memorandum from the Board’s Divi-
sion of Advice dated November 26, 2007, which in its
conclusionary portion states:
“The Region submitted this 8(a)(5) case for advice on
whether a single employer of a group of food and bever-
age employees lawfully refused to bargain with the Union
over a new, larger group of employees performing similar
work at the same site because the new group was neither a
lawful accretion to nor an expansion of the existing bar-
gaining unit.
We agree with the Region that (1) the new, larger
group is not an accretion to the existing unit because the
two groups experience no employee interchange, have
separate day-to-day supervision, and the Board will not
accrete a larger group of employees into a smaller unit; (2)
the new group is also not a mere expansion of the existing
unit, notwithstanding their similar skills and duties, be-
cause the two groups lack a sufficient community of inter-
est given the absence of employee interchange and com-
mon day-to-day supervision; (3) there is insufficient evi-
dence that the single employer in fact agreed to bargain
with the Union in an overall unit of both groups of em-
ployees; and (4) the parties’ existing bargaining agreement
does not apply to the new group of employees.”
19. A letter from the Region to RFS stating that the
Region had approved the Union’s withdrawal of that por-
tion of the charge that it filed in this case alleging a viola-
tion of Section 8(a)(1) and (5) because of RFS’s refusal to
bargain with the Union concerning the casino food and
beverage employees employed at Philadelphia Park, and
by unilaterally closing the first floor pizza concession
stand, removing work duties assigned to bar back employ-
ees, and transferring employee Faith Garcia.
20. The partial settlement approved by me in an ear-
lier order. The settlement is dated March 10, 2008 and
provides for the supplying of certain information to the
Union, specifically that information referenced at subpara-
graphs 6(a)(1), 6(a)(2), 6(b) and 6(c) of the Complaint.
The partial settlement agreement contains the caveat that
RFS and CFS does not admit that the two entities are a
single employer and reserves the right to deny Single Em-
ployer status in any future proceeding.
21. A memorandum of understanding between the Un-
ion and RFS extending the expiration date of the collective
bargaining agreement from July 1, 2006 and August 31,
2006.
22. A listing of RFS employees’ hours by week for
specified weeks.
23. A letter dated June 14, 2007 from the Union to
RFS, which reads:
“Please accept this letter in response to yours of June
9. As you know, my dealings have always been with Andy
Green. I understand that Philadelphia Park is trying to set
up a divide between the so-called ‘racetrack side’ and the
so-called ‘casino side,” but we know Mr. Green and Mr.
Ricci have bargained this agreement in the past. Nonethe-
less, if the Company is requesting I direct my correspon-
dence to you, I will comply.
Your letter acknowledges that the Company has not
answered the Union’s bargaining proposals on subcon-
tracting and successorship, which I left with you and your
attorney when we met on January 30, 2007. You may re-
call that your attorney didn’t even want to look at the pro-
posals, and only took them after my insistence. We would
like to receive the Company’s answers on these proposals
as soon as practicable.
Regardless of whether the so-called ‘casino side’
workers are in or out of the Union’s bargaining unit, the
Company has an obligation to provide information about
them because they are so comparable to the so-called
‘racetrack side’ workers and work side by side with them
in the same workplace. The Company has this informa-
tion, can collect it, and therefore has an obligation to pro-
vide it to us. Accordingly, we ask again that you provide
the requested information.”
24. A complete compilation of the information sup-
plied by RFS and CFS to the Union pursuant to the partial
settlement agreement.
25. This is a stipulation of facts which when taken
with the Exhibits discussed above constitute all of the facts
in this record. The Stipulation is as follows:2

2 GC Exh. 26 is a copy of the stipulation electronically recorded on a
compact disk.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD698
C. Discussion and Conclusions
1. Did Racetrack violate Section 8(a)(5) of the Act by fail-
ing to provide the Union with information that it requested on
January 17, 2007, including names, addresses, and phone num-
bers of Casino employees, and names titles, dates of employ-
ment, and duties of Casino supervisors, managers, and com-
pany representatives?
An Employer has a duty to furnish to a union, on request, in-
formation that is relevant and necessary to perform its role as
exclusive bargaining representative of unit employees. Detroit
Edison Co. v. NLRB, 440 U.S. 301, 303 (1979); NLRB v. Acme
Industrial Co., 385 NLRB 432, 435–436 (1967). Such informa-
tion may be needed for bargaining, for administering and polic-
ing a contract, for communicating with unit employees or for
preserving unit work, among other reasons. H&R Industrial
Services, Inc., 351 NLRB 1222 (2007).
The relevance of the information request is evaluated by a
liberal, discovery-type standard. NLRB v. Acme Industrial Co.,
supra. at 437. Information that is potentially relevant and will
be of use to the union in fulfilling its duties as bargaining repre-
sentative must be provided. Pennsylvania Power & Light Co.,
301 NLRB 1104, 1104–1105 (1991). The requested informa-
tion need not be dispositive of the issue for which it is sought,
but need only have some bearing on it. Id. at 1105. An em-
ployer must furnish information of even probable or potential
relevance to the union’s duties. Conrock Co., 263 NLRB 1293,
1294 (1982). The employer’s obligation extends to information
involving labor-management relations during the term of an
existing contract and in preparation for negotiations for a future
contract. Southern California Gas. Co., 346 NLRB 449, 452
(2006). The employer’s obligation also extends to information
that would allow the union to decide whether to process a
grievance. NLRB v. Acme Industrial, 385 U.S. at 436; Bicker-
staff Clay Products, 266 NLRB 983, 985 (1983). The union is
not required to establish in advance exactly how the informa-
tion sought would be helpful in pursuing the grievance. Blue
Diamond Co., 295 NLRB 1007 (1989). In determining whether
information relating to a grievance is relevant, the Board does
not pass on the merits of the union’s claim that the employer
has breached the contract. National Broadcasting Co., 352
NLRB 90, 97 (2008); Certco Distribution Centers, 346 NLRB
1214 (2006).
Information pertaining to bargaining unit employees is pre-
sumptively relevant and necessary and must be provided.
Sheraton Hartford Hotel, 289 NLRB 463 (1988). Where the
requested information involves matters outside the bargaining
unit, the union has the burden of establishing its relevance and
need. Tri-State Generation, 332 NLRB 910 (2000). In keeping
with the liberal standard of relevance, this burden is not a heavy
one and only requires the union to demonstrate more than a
mere suspicion of the matter for which the information is
sought. Sheraton Hartford Hotel, supra at 463–464. When there
has been a showing of relevance, the Board has consistently
found a duty to provide information such as competitor data,
labor costs, production costs, restructuring studies, income
statements, and wage rates for nonunit employees. The Earth-
grains Co., 349 NLRB 389, 394 (2007).
Where information concerns a purported single-employer re-
lationship between the Respondent and a nominally separate
employer, the Union bears the burden of establishing the rele-
vance of the requested information. National Broadcasting Co.,
Inc., supra, at 8 (employer ordered to provide, inter alia, names
and addresses of nonunit employees and names of managers
and supervisors for nonunit employees where union had good
faith belief that single-employer relationship existed). The
Board need only decide whether the information has some bear-
ing on these issues, or would be of use to the union. Id.
The union must have a reasonable objective basis for believ-
ing that an alter ego or single-employer relationship exists.
Shoppers Food Warehouse, 315 NLRB 258, 259 (1994). The
union need not inform the employer of the factual basis for its
requests, but need only indicate the reason for its request. H&R
Industrial Services, Inc., supra (alter ego relationship claimed);
Corson & Gruman Co., 278 NLRB 329, 334 (1986) (single
employer or alter ego relationship claimed). However, when the
circumstances surrounding the request are reasonably calcu-
lated to put the employer on notice of a relevant purpose, which
the union has not specifically spelled out, the employer is obli-
gated to divulge the requested information. Clear Channel Out-
door, Inc., 347 NLRB 524 (2006).
A union has satisfied its burden when it demonstrates that it
had, at the relevant time, a reasonable belief supported by ob-
jective evidence, for requesting the information. Cannelton
Industries, 339 NLRB 996, 997 (2003); National Broadcasting
Co., Inc., supra. A union may rely on hearsay or other type of
evidence which may not be reliable or accurate to demonstrate
that its belief of single employer or alter ego status is reason-
able. National Broadcasting Co., supra; Dodger Theatricals
Holdings, Inc., 347 NLRB 953 (2008).
To demonstrate the relevance of the information request, the
General Counsel must show either (1) that the union demon-
strated relevance of the nonunit information or (2) that the rele-
vance of the information should have been apparent to the Re-
spondent under the circumstances. Disneyland Park, 350
NLRB 1257, 1259 (2007). The burden then shifts to the re-
spondent to establish that the information is not relevant, does
not exist, or for some other valid and acceptable reason need
not be furnished. Harmon Auto Glass, 353 NLRB 232 (2008).
Based on the Union’s direct representations to Racetrack
management, the relevance of the non-unit information was
clearly communicated.3 The Union stated three reasons why it

3 In Disneyland Park, supra at 3, the Board found no violation where
an employer refused to provide information about subcontractors. The
union failed to establish the relevance of the information request. The
information’s relevance was not apparent from surrounding circum-
stances such that the employer should have been aware of the union’s
concerns, and it was not shown that the union had a reasonable belief
supported by objective evidence that the information sought was rele-
vant. The Board stated that a union must do more than cite contractual
provision to show relevance. It must set forth at least some facts to
support its claim (although it need not prove breach of contract to ac-
quire information). Here the union stated its reasons why it sought the
information. Further, Racetrack was well aware of the Union’s con-
cerns, from the outset, that Racetrack and Casino employees were
performing the same food and beverage duties, under similar circum-
stances and in the same locations (such as the fourth floor kitchen).
RACETRACK FOOD SERVICES 699
sought the information: (1) to investigate the possible filing of a
grievance; (2) to prepare for negotiations for the Racetrack
bargaining unit; and (3) to police the contract, as Racetrack and
Casino employees were performing comparable work and the
Union had concerns that Casino employees were performing or
encroaching on work traditionally done by Racetrack employ-
ees.
The Union’s January 17, 2007 request for bargaining stated
the Union’s good-faith belief that the Casino employees fell
within the Racetrack bargaining unit, or constituted an accre-
tion to that unit. Based on this belief, the Union requested in-
formation, stating that the information was necessary to deter-
mine whether the contract had been violated. The Union indi-
cated its intent to file a grievance if it determined that the con-
tract had been violated with respect to the Casino employees.4
The Union’s February 7 charge and June 7 information request
reiterated its claim that Racetrack and Casino employees con-
stituted a single unit.5
The Union amended the charge on March 22 to allege that
Racetrack and Casino were a single employer. This claim was
implicit in the Union’s initial request. Certainly, based on An-
drew Green’s June 28, 2006 email (GC ex. 5), the Union had
reason to believe, when it requested bargaining and informa-
tion, that it would be negotiating with Racetrack concerning
Casino food and beverage workers.
Racetrack was aware of the facts underlying the Union’s
claim that it and Casino were a single employer. Certainly
Racetrack was aware that Casino employees were performing
food and beverage work similar to that of bargaining unit em-
ployees, under similar working conditions, which was the basis
for the Union’s claim that Racetrack and Casino employees
constituted a single unit, employed by a single entity. Race-
track’s principals were also aware of the multiple corporate

Moreover, the parties have stipulated to the Union’s good faith belief
that Casino and Racetrack employees formed a single unit.
4 Although the contract had expired on August 31, 2006, it was cer-
tainly possible that, had the Union filed a grievance, Racetrack might
have agreed to resolve the Union’s claims through the grievance proce-
dure.
5 This is not a case where information was requested solely to sup-
port an unfair labor practice charge. Because the Board’s procedures do
not include pretrial discovery, the Board has found refusals to furnish
information lawful where information requests relate to pending
charges. Saginaw Control & Engineering, Inc., 339 NLRB 541, 543-44
(2003)(no violation where union was merely seeking to support ULP
charge). If the request’s timing and the information’s relationship to the
charges show that the union sought information in order to bolster its
charges, the Board will not find a refusal to provide the information
unlawful. Ralphs Grocery Co., 352 NLRB 128, 134 (2008); Stephan
Co., 352 NLRB 79 fn. 2 (2008). Here, from the outset, the Union re-
quested information about nonunit employees based on its belief that
Casino employees fell within the bargaining unit, and its concern that
Racetrack and Casino, as a single employer, were not applying the
contract to Casino employees. Initially, the Union anticipated filing a
grievance. The Union filed a charge only after Jaffe stated on January
30 that he would not provide information about Casino employees. The
evidence does not establish that the Union sought information merely to
support a charge. The fact that the Union was mistaken in its belief, in
January 2007, that Racetrack and Casino employees formed a single
unit does not relieve Racetrack of its duty to provide information.
links between Racetrack and Casino in common ownership and
management. Moreover, based on Andrew Greene’s June 25
email, the Union had, at that time, an objective basis to believe
that Racetrack would be negotiating with the Union concerning
the newly hired Casino food and beverage workers. Even if the
Union did not formally advise Racetrack of its single employer
claim until the charge was amended, the circumstances were
reasonably calculated to put Racetrack on notice of the rele-
vance of the Union’s information request.
As stipulated, the Union sought information in connection
with its dispute with Racetrack concerning, and to pursue its
investigation into (a) whether a single-employer situation ex-
isted, (b) whether Racetrack and Casino employees constituted
a single unit and (c) whether bargaining unit work was being
performed by Casino employees. As stipulated, the Union
sought the information in connection with its representational
responsibilities to police the contract with Racetrack and pre-
serve bargaining unit work. The Union also had concerns about
loss of unit work, including (a) its good-faith belief that Casino
cooks had been doing Racetrack work in November and De-
cember 2006; (b) the elimination on April 18, 2007, of em-
ployee shifts on Wednesday and Thursday nights in the Turf-
side Terrace; and (c) the assignment of food and beverage work
to Casino employees in the My Juliette patio area during the
summer of 2007. The Union had a reasonable, objective good
faith basis for its beliefs. As stipulated, the Union had in its
possession, when it made the January 17 information request,
information supporting its claims that Racetrack and Casino
employees constituted a single bargaining unit and that Race-
track and Casino were a single employer. The Union could
reasonably rely on the information in its possession, even if it
were hearsay and possibly unreliable and incorrect. National
Broadcasting Co., Inc., supra, slip op. at 9; Dodger Theatricals,
347 NLRB 953 (2006).
As the Union had a reasonable objective basis for its beliefs,
it was entitled to the information requested. In Mohenis Ser-
vices, Inc., 308 NLRB 326, 328–329 (1992), the Board found
that the union had a reasonable basis for believing that two
entities were a single employer and that two groups of employ-
ees constituted a single appropriate unit. Even where the Un-
ion’s accretion claim ultimately failed, the information re-
quested (including names and addresses of nonunit employees)
was relevant to that claim. When the union made its request, the
information was relevant to an ongoing dispute between the
employer and the union, and accordingly, the union was enti-
tled to receive it. See also National Broadcasting Co., supra;
and G.E. Maier Co., 349 NLRB 1052 (2007). I find the infor-
mation request in the instant case to be relevant to (a) investi-
gate whether Casino and Racetrack employees were part of a
single unit, in anticipation of filing a grievance; (b) investigate
whether Casino and Racetrack were a single employer; (c) in-
vestigate information related to negotiations for the Racetrack
unit: and (d) investigate the possible loss of unit work to Race-
track employees, as part of the Union’s duty to police the con-
tract. Pursuant to this finding, the Respondent has a legal obli-
gation to supply the information requested. National Broad
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD700
casting Co., Inc., supra; NLRB v. Acme Industrial Co., 385
U.S. 432, 435 (1967); Public Service Co. of Colorado, 301
NLRB 238, 246 (1991); Certco Distribution Centers, 346
NLRB 1214–1215 (2006); Comar, Inc., 349 NLRB 342 (2007);
Frito-Lay, 333 NLRB 1296 (2001); NLRB v. Rockwell Stan-
dard Corp., 410 F.2d 953, 957 (6th Cir. 1969); United Graph-
ics, 281 NLRB 463 (1986); Blue Diamond Co., 295 NLRB
1007 (1989); Duquesne Light Co., 306 NLRB 1042, 1044
(1992); Trim Corporation of America, 349 NLRB 608, 613
(2007).
The Union’s claim that Casino employees constituted an ac-
cretion to or an expansion of the Racetrack bargaining unit was
ultimately rejected by the General Counsel’s Division of Ad-
vice. However, when the Union made its request for informa-
tion, it had a good faith belief that there was a single unit of
employees. Its information request was relevant to that belief
and to the possible filing of a grievance claiming potential con-
tract violations. Even if the Union was mistaken in its claims,
the information should have been provided, as the Union estab-
lished the relevance of its request. Otay River Constructors,
351 NLRB 1105 (2007); Certco Distribution Centers, supra.
Racetrack has not shown that it cannot provide the information
requested and based on the proven close relationship of Casino
and Racetrack, I will recommend that it be ordered to provide
it.
2. Did Racetrack violate the Act by closing the fifth floor
dining room and bar on Wednesday and Thursday nights, with-
out providing notice to the Union or an opportunity to bargain
over the decision or its effects on the bargaining unit?
An employer violates Section 8(a)(5) of the Act when it
makes a material and substantial change in wages, hours, or any
other term of employment that is a mandatory subject of bar-
gaining, at a time when employees are represented by a union.
Fresno Bee, 339 NLRB 1214 (2003); NLRB v. Katz, 369 U.S.
736, 743 (1962).
Respondent effectively eliminated two evening shifts at its
fifth floor dining room, by shutting down the restaurant and bar
on Wednesday and Thursday nights, assigning employees to
different shifts and reducing hours for at least one employee.
Racetrack’s unilateral change affected the entire bargaining unit
of employees who were or might have been scheduled to work
those nights. Its actions affected, at a minimum, five employees
in a unit of about 45–50 employees; the bartender, cooks, dish-
washer and servers who had been scheduled to work on
Wednesday and Thursday nights. One employee lost a shift
every other week. Additional employees may have lost hours
because of the unilateral change. Employees may have lost
income from tips because of the change in schedule and elimi-
nation of shifts. The changes, affecting at least 10 percent of the
bargaining unit, were substantial and material. Blue Circle Ce-
ment, 319 NLRB 954 (1995); Professional Eye Care, 289
NLRB 738, 754 (1988).
By eliminating two shifts, the Respondent has not made a
basic change in the nature and scope of its food service opera-
tion that excuses the bargaining duty. In Dubuque Packing Co.,
303 NLRB 386 (1991), the Board put forth a two-part test to
determine whether a decision to relocate bargaining unit work
is a mandatory subject of bargaining. Initially, General Counsel
must show that the decision did not constitute a basic change in
the nature of the operation. The employer may rebut to show,
inter alia, that labor costs (direct and/or indirect) were not a
factor, or if they were a factor, the union could not have offered
concessions which could have changed the employer’s deci-
sion. Even where there is no obligation to bargain over the
decision, there remains the duty to bargain over its effects.
Such bargaining must occur before the decision is imple-
mented. Good Samaritan Hospital, 335 NLRB 901, 902 (2001);
Kiro, Inc., 317 NLRB 1325, 1327 (1995); John R. Crowley &
Bros., 297 NLRB 770 (1990). In the instant case, I find that
there was an obligation to bargain over the decision as it was a
mandatory subject of bargaining. There was no change to the
nature of the operation. The restaurant continues to operate
exactly as it always has since it was opened, albeit with a re-
duced schedule.
Racetrack admitted that labor costs were a factor in its deci-
sion. The Board has stated that when labor costs underlie a
decision to change terms and conditions of employment, the
decision is particularly amenable to bargaining. Comar, Inc.,
supra; Holly Farms Corp., 311 NLRB 273, 278 (1993). The
Union might have offered concessions or other options to pre-
vent the closure of the restaurant on two nights, for example,
reduced or alternate staffing arrangements. Geiger Ready-Mix
Co., 315 NLRB 1021, 1024 (1994) (“Employer must offer
something more than a self-serving assertion that there was
nothing the bargaining agent . . . could do to change its mind.”);
San Luis Trucking, Inc., 352 NLRB 211, 230–231 (2008)
(:[T]he Respondents’ bald assertion that bargaining would not
have changed their decision is insufficient to establish that their
decision to subcontract . . . was not a mandatory subject of
bargaining.”)
However, as noted above, even if Racetrack were not obli-
gated to bargain over its decision, it is still obligated to bargain
over the effects of that decision. Holly Farms Corp., supra.
(Decision to integrate divisions involved change in scope and
direction of business; bargaining not required because decision
did not involve labor costs; however employer was obligated to
bargain about effects.) Racetrack would be obligated to bargain
over the effects even if the decision itself were not a mandatory
subject of bargaining. First National Maintenance, 452 U.S.
666, 677 fn. 15 (1981). (Decision to close part of business was
not a mandatory subject of bargaining, but employer was under
a duty to bargain about the results or effects of decision.)
The extent of effects bargaining will vary depending on cir-
cumstances. In Litton Business Systems, 286 NLRB 817, 819–
20 (1987), the employer was not obligated to bargain about an
economically motivated decision to change its printing proc-
esses, but was obligated to explore alternatives to layoff, in-
cluding retraining, transferring employees, etc., to reduce the
scope of the layoffs. In First National Maintenance, supra, the
employer’s termination of a contract with a customer resulted
in the elimination of jobs, and thus the only meaningful effect
to bargain was severance pay. In Holmes & Narver, 309 NLRB
146, 147 (1992), the Board found that the union could poten-
tially offer many alternatives to downsizing, including wage
reduction, modified work rules, nonpaid vacations, work reas-
signments, etc.
RACETRACK FOOD SERVICES 701
Even if Racetrack is only obligated to bargain over the ef-
fects of its decision, it is required to provide advance or “pre-
implementation notice.” Willamette Tug & Barge, 300 NLRB
282, 282–283 (1990). Racetrack gave no notice to the Union of
its decision at any time. Racetrack’s reliance on the manage-
ment rights clause, Article 10 of the expired contract, is un-
availing. No contract was in effect when Racetrack imple-
mented these changes. Unlike other terms in a contract, the
effect of a management-rights clause and any purported waiver
of a union’s right to bargain in such a clause do not survive
expiration of the contract, absent evidence of the parties inten-
tions to the contrary. The Bohemian Club, 351 NLRB 1065,
1067 (2007); Long Island Head Start, 345 NLRB 973 (2005).
There is no evidence that the parties intended article 10 to con-
tinue in effect after the contract expired. Any purported waiver
expired with the contract. The clause cannot authorize the post-
expiration changes at issue here.
A union is not required to request bargaining when a change
in employees’ terms and conditions of employment is present
as a fait accompli, or where it would be futile to do so. Wind-
stream Corporation, 352 NLRB 44, 51 (2008). “A union does
not waive its right to bargain over unilateral changes by failing
to engage in the futile act of trying to turn back the clock and
bargain over an action the employer has already taken.” The
Bohemian Club, supra at 1067 Racetrack never notified the
Union about the closure of the restaurant. The Union learned
about Racetrack’s actions from the unit employees. A request
to bargain after the change had already been announced and
implemented would have been futile. Accordingly, the Union
did not waive its rights herein by failing to request bargaining.
The announcement of the decision to close the restaurant to
the shop steward did not constitute notice to the Union. Patricia
Cramer, the former steward, was no longer the shop Steward
when Jaffe announced to the employees his decision to close
the restaurant. Even if she were still serving as steward, the
shop steward was not authorized by the Union, or by the con-
tract, to receive notice from Racetrack regarding changes to
terms and conditions of employment for the bargaining unit.
The notice requirement is not satisfied by an announcement to
or discussion with a shop steward or the affected employees.
Remgrit Corp., 297 NLRB 803, 809 (1990).
CONCLUSIONS OF LAW
1. Respondents Racetrack Food Services, Inc., and Casino
Food Services, Inc., are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, UNITE HERE, Local 274, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Respondent Racetrack Food Services, Inc., violated Sec-
tion 8(a)(1) and (5) of the Act by:
(a) Failing and refusing to supply the Union with information
requested by it on January 17, 2007; and
(b) Closing the fifth floor dining room and bar on Wednes-
day and Thursday nights, without providing notice to the Union
and giving the Union an opportunity to bargain over that deci-
sion or its effects on the bargaining unit.
4. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent should be ordered to provide the Union with the
information it requested on January 17, 2007. It should further
be ordered to rescind the unilaterally implemented changes in
terms and conditions of employment of bargaining unit em-
ployees put into effect on April 18, 2007, by reopening the
Turfside Terrace Restaurant and Bar on Wednesday and Thurs-
day evenings, and make any employees adversely affected by
the unlawful act whole for any loss of earnings or other benefits
suffered as a result of the unlawful actions taken against them,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). Respondent should further be ordered
to, on request, bargain with the Union concerning the terms and
conditions of employment of the bargaining unit, and if an un-
derstanding is reached, embody the understanding in a written
agreement.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Racetrack Food Services, Inc., of Ben-
salem, Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively with UNITE HERE, Lo-
cal 274 (the Union) as the exclusive collective-bargaining rep-
resentative of its employees in the following bargaining unit, by
failing and refusing to provide relevant information requested
by the Union:
All full-time and regular part-time bartenders, bus persons,
cashier-counterpersons, cooks, utility persons, dishwashers,
waitstaff and commissary helpers, but excluding hostesses,
captains, maitre’d’s, supervisory chefs, supervisory employ-
ees, managerial or foreman employees, security personnel,
watchmen, professional employees, office or secretarial em-
ployees, guards and supervisors as defined in the Act, and
employees currently represented by other labor organizations.
(b) Refusing to bargain collectively with the Union by uni-
laterally changing the terms and conditions of employment of
the bargaining unit employees.
(c) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action deemed necessary
to effectuate the policies of the Act.

6 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 pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD702
(a) Provide the Union with the information it requested on
January 17, 2007.
(b) Rescind the unilaterally implemented changes in terms
and conditions of employment of bargaining unit employees,
which were put into effect on April 18, 2007, by re-opening the
Turfside Terrace Restaurant and Bar on Wednesday and Thurs-
day evenings.
(c) On request, bargain with the Union as the exclusive col-
lective-bargaining representative of its employees in the bar-
gaining unit described above concerning the terms and condi-
tions of employment of the bargaining unit and, if an under-
standing is reached, embody that understanding in a signed
agreement.
(d) Make employees whole for any loss of earnings and other
benefits suffered as a result of the unlawful actions taken
against them, in the manner set forth in the remedy section of
this decision.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Bensalem, Pennsylvania, copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous 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 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 employ-
ees employed by the Respondent at any time since January,
2007.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that 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

7 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain collectively with UNITE
HERE, Local 274 (the Union) as the exclusive collective-
bargaining representative of its employees in the following
bargaining unit, by failing and refusing to provide relevant
information requested by the Union:
All full-time and regular part-time bartenders, bus persons,
cashier-counterpersons, cooks, utility persons, dishwashers,
waitstaff and commissary helpers, but excluding hostesses,
captains, maitre’d’s, supervisory chefs, supervisory employ-
ees, managerial or foreman employees, security personnel,
watchmen, professional employees, office or secretarial em-
ployees, guards and supervisors as defined in the Act, and
employees currently represented by other labor organizations.
WE WILL NOT refuse to bargain collectively with the Union by
unilaterally changing the terms and conditions of employment
of the bargaining unit employees.
WE WILL NOT in any like or related manner, interfere with, re-
strain, or coerce employees in the exercise of rights guaranteed
them by Section 7 of the Act.
WE WILL provide the Union with the information it requested
on January 17, 2007.
WE WILL rescind the unilateral implemented changes in terms
and conditions of employment of bargaining unit employees,
which were put into effect on April 18, 2007, by re-opening the
Turfside Terrace Restaurant and Bar on Wednesday and Thurs-
day evenings.
WE WILL on request, bargain with the Union as the exclusive
collective-bargaining representative of its employees in the
bargaining unit described above concerning the terms and con-
ditions of employment of the bargaining unit and, if an under-
standing is reached, embody that understanding in a signed
agreement.
WE WILL make employees whole for any loss of earnings and
other benefits suffered as a result of the unlawful actions taken
against them.
RACETRACK FOOD SERVICES, INC. AND CASINO FOOD
SERVICES, INC.