Saipan Grand Hotel

National Labor Relations Board - Board Decisions

Aug 19, 1998

326 N.L.R.B. 80 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 80
Micro Pacific Development Inc., d/b/a Saipan Grand
Hotel and Hotel Employees & Restaurant Em-
ployees, Local 5, AFL–CIO and Commonwealth
Labor Federation. Case 37–CA–4979
August 19, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
Pursuant to a charge filed by Hotel Employees & Res-
taurant Employees, Local 5, AFL–CIO and Common-
wealth Labor Federation (the Union) on April 20, 1998,
as amended on April 28 and 29, 1998, the Acting Gen-
eral Counsel of the National Labor Relations Board is-
sued a complaint on May 4, 1998, alleging that the Re-
spondent has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act by refusing the Union’s re-
quest to bargain and to furnish information following the
Union’s certification in Case 37–RC–3720. (Official
notice is taken of the “record” in the representation pro-
ceeding as defined in the Board’s Rules and Regulations,
Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB
343 (1982).) The Respondent filed an answer admitting
in part and denying in part the allegations in the com-
plaint.
On July 21, 1998, the Acting General Counsel filed a
Motion for Summary Judgment. On July 22, 1998, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. On August 4, 1998, the Union
filed a Joinder in the Acting General Counsel’s Motion
for Summary Judgment. The Respondent filed a re-
sponse.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bar-
gain and its refusal to furnish requested information to
the Union that the complaint alleges is relevant and nec-
essary to the Union’s role as bargaining representative,
but attacks the validity of the certification on the basis of
its objections to the conduct alleged to have affected the
results of the election in the representation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that there are no issues warranting a hear-
ing with respect to the Union’s request for information.
The Respondent admits that by letter dated April 7, 1998,
the Union requested that the Respondent furnish it with
the following information:

1. A complete listing of all bargaining unit em-
ployees including each employee’s date of hire, date
of birth, sex, average numbers of hours worked each
year since date of hire, date of contract expiration
(where applicable), the classification indicated in
each employee’s contract (where applicable), the ac-
tual classification in which the employee works,
wage rate, address and telephone number.
2. Weighted average wage rate.
3. Weighted average income from tips or service
charges and the names and classifications of each
employee[s] receiving such tips.
4. Cost per hour of health insurance, broken
down by cost for contract workers and resident
workers. Plan documents and/or insurance policies
for medical, pension, workers compensation, disabil-
ity benefits and/or separation allowances. Cost per
hour providing the aforementioned benefits for bar-
gaining unit employees.
5. Cost per hour of all other employee fringe
benefits; including but not limited to: holiday pay,
sick leave pay, vacation pay, housing, meals, and
other paid leaves.
6. Copies of most recent employee handbook,
rules and regulations governing employee conduct,
and all revisions thereto.
7. Copies of the standard contract utilized for the
employment of contract workers by the Hotel. If no
standard contract exists, the Union would then re-
quest a copy of such contract worker’s contract.
8. A listing of jobs currently being performed by
what is commonly referred to on Saipan as “u-drive”
employees.
9. Copies of contracts between the Hotel and any
Company that provides employees to work in the
Hotel in work that would otherwise be considered
bargaining unit work.
10. Number of jobs subcontracted since October
5, 1995.

The Respondent’s answer admits that it refused to provide
this information and, by reason of its denial that the Union is
the valid exclusive collective-bargaining representative,
denies that the information requested is relevant and neces-
sary for the Union’s role as the exclusive bargaining repre-
sentative of the unit employees. It is well established that
such information is presumptively relevant and must be
furnished on request. See Masonic Hall, 261 NLRB 436,
437 (1982); and Verona Dyestuff Division, 233 NLRB 109,
110 (1977).
326 NLRB No. 20
SAIPAN GRAND HOTEL 81
Accordingly, we grant the Acting General Counsel’s
Motion for Summary Judgment1 and will order the Re-
spondent to recognize and bargain with the Union and to
furnish it the requested information.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation of
the Commonwealth of the Northern Mariana Islands
(CNMI), with an office and place of business located in
Suspue, on the Island of Saipan CNMI, (the Respon-
dent’s facility), has been engaged in the operation of a
hotel and restaurant providing food and lodging.
During the calendar year ending December 31, 1997,
the Respondent, in conducting its business operations,
derived gross revenues in excess of $500,000 and during
the same period of time, purchased and received at its
Suspue, Saipan, CNMI facility, products, goods and ma-
terials valued in excess of $5000 which originated from
points located outside the CNMI.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.3
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held October 5, 1995, the Un-
ion was certified on March 26, 1998, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:

All employees of the Employer employed in the CNMI
at its Grand Hotel facility; excluding all managers, con-
fidential and professional employees, guards, watch-
men and supervisors as defined in the Act.

The Union continues to be the exclusive representative
under Section 9(a) of the Act.

1 We accordingly, deny the Respondent’s request for summary
judgment.
2 In its response to the Notice to Show Cause, the Respondent argues
that the information sought as to “u-drive” employees relates to non-
unit employees. In these circumstances we cannot find on this record
that this information is presumptively relevant and accordingly we
remand that issue to the Regional Director for further proceedings, as
appropriate.
3 In its answer, the Respondent states that it is without knowledge or
information sufficient to form a belief as to whether the Common-
wealth Labor Federation is a labor organization within the meaning of
Sec. 2(5) of the Act. During the representation proceeding the Respon-
dent did not question the Federation’s status or the status of the Union
as a labor organization. Its failure to raise this issue in the underlying
representation precludes the Respondent from litigating the matter in
this proceeding. See Biewer Wisconsin Sawmill, 306 NLRB 732 fn. 1
(1992).
B. Refusal to Bargain
Since about April 7, 1998, the Union, by letter, has re-
quested the Respondent to bargain and to furnish infor-
mation, and, since about April 14, 1998, the Respondent,
by letter, has refused. We find that this refusal consti-
tutes an unlawful refusal to bargain in violation of Sec-
tion 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after April 14, 1998, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit and to
furnish the Union requested information, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union, and, if an
understanding is reached, to embody the understanding
in a signed agreement. We also shall order the Respon-
dent to furnish the Union the information requested.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Micro Pacific Development, Inc., d/b/a Sai-
pan Grand Hotel, Suspue, Saipan, Commonwealth of the
Northern Mariana Islands, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Hotel Employees & Res-
taurant Employees, Local 5, AFL–CIO and Common-
wealth Labor Federation, as the exclusive bargaining
representative of the employees in the bargaining unit,
and refusing to furnish the Union information that is
relevant and necessary to its role as the exclusive bar-
gaining representative of the unit employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment, and if
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 82
an understanding is reached, embody the understanding
in a signed agreement:

All employees of the Employer employed in the CNMI
at its Grand Hotel facility; excluding all managers, con-
fidential and professional employees, guards, watch-
men and supervisors as defined in the Act.

(b) Furnish the Union the information that it requested
on April 7, 1998, except for Item No. 8 of that request.
(c) Within 14 days after service by the Region, post at
its facility in Suspue, Saipan, Commonwealth of the
Northern Mariana Islands, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 20 after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent 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 cur-
rent employees and former employees employed by the
Respondent at any time since April 14, 1998.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

s.
4 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.”
APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

WE WILL NOT refuse to bargain with Hotel Employees
& Restaurant Employees, Local 5, AFL–CIO and Com-
monwealth Labor Federation, as the exclusive
representative of the employees in the bargaining unit,
and WE WILL NOT refuse to furnish the Union information
that is relevant and necessary to its role as the exclusive
bargaining representative of the unit employee
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:

All employees employed by us in the CNMI at our
Grand Hotel facility; excluding all managers, confiden-
tial and professional employees, guards, watchmen and
supervisors as defined in the Act.

WE WILL furnish the Union the information it requested
on April 7, 1998, except for Item No. 8 of that request.
MICRO PACIFIC DEVELOPMENT, INC., d/b/a
SAIPAN GRAND HOTEL