DAI-ICHI Hotel Saipan Beach

327 NLRB No. 131 1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Pacific Micronesia Corporation, d/b/a DAI-ICHI Ho- tel Saipan Beach and Hotel Employees & Res- taurant Employees, Local 5, AFL–CIO and Commonwealth Labor Federation. Case 37–CA– 5262 February 22, 1999 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME Pursuant to a charge and an amended charge filed on September 17 and 28, 1998, respectively, the General Counsel of the National Labor Relations Board issued a complaint on October 9, 1998, alleging that the Respon- dent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s certification in Case 37– RC–3739. (Official notice is taken of the “record” in the representation proceeding 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 complaint, with affirmative defenses. On December 28, 1998, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On January 4, 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. The Respondent filed a response. 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 to furnish information, but attacks the validity of the certification on the basis of its objections to the election and the Board’s unit determination in the repre- sentation 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, with the exception noted, infra, there are no factual issues warranting a hearing with respect to the Union’s request for information. The Respondent’s answer admits that by letter dated September 2, 1998, the Union requested it to furnish it with the following infor- mation: 1. Each employee’s date of hire, date of birth, sex, average number 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. (Total bargain- ing unit wages paid divided by total hours worked of the employees who receive such monies.) 3. Weighted average income from tips or service charges and the names and classifications of each employee[s] receiving such tips. (Weighted average means total monies paid to employees divided by the total hours worked on the employees who receive such monies.) 4. Cost per hour of health insurance, broken down by cost for contract workers and resi- dent workers. Plan documents and/or insur- ance policies for medical, pension, workers compensation, disability benefits and/or sepa- ration allowances. Cost per hour providing the aforementioned benefits for bargaining 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 request a copy of each contract worker’s contract. 8. Copies of contracts between the Hotel and any Company that provides employees to work in the Hotel in work that would otherwise be con- sidered bargaining unit work. The Respondent’s answer admits that it refused to pro- vide this information to the Union. Further, although the Respondent’s answer denies that the information re- quested is necessary and relevant for the Union’s duties as the exclusive bargaining representative of the unit employees, it challenges only the relevance of item 8 in its response to the Notice to Show Cause. Information concerning work that “would otherwise be considered bargaining unit work” is not presumptively DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 relevant and thus, not appropriate for resolution in a summary judgment proceeding. Accordingly, we shall remand this issue to the Regional Director for further appropriate proceedings. The other requested information is of the type that, un- der well established principles, is presumptively relevant and must be furnished on request. See, e.g., Masonic Hall, 261 NLRB 436 (1982); and Mobay Chemical Corp., 233 NLRB 109 (1997). Accordingly, we grant the Motion for Summary Judg- ment and will order the Respondent to bargain with the Union and, with the exception noted, to furnish it the information requested. 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 Garapan, on the Island of Saipan, 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 pur- chased and received at its Garapan, Saipan, CNMI facil- ity products, goods, and materials 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 Unions are labor organizations within the meaning of Section 2(5) of the Act.1 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the second election held February 5, 1998, the Union was certified on March 30, 1998, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time employees em- ployed by the Employer in the Commonwealth of the Northern Mariana Islands; excluding all managerial 1 Although the Respondent states that it is without knowledge or in- formation sufficient to form an opinion of the truth of the allegation that the Commonwealth Labor Federation is a labor organization, we do not find that the Respondent’s allegation raises an issue warranting a hearing. In his Decision and Direction of Election in the underlying representation case, the Acting Regional Director found the Federation to be a labor organization and did so based on the Respondent’s stipu- lation. The Respondent did not seek review of that finding. See Sec. 102.67(f) of the Board’s Rules (“Failure to request review shall pre- clude . . . parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding.”) employees, professional employees, confidential em- ployees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since about September 2, 1998, the Union, by letter, has requested the Respondent to bargain and to furnish information and, since about September 11, 1998, the Respondent has failed and refused. With the exception noted, supra, we find that this refusal constitutes an un- lawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after September 11, 1998, to bar- gain 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 affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated 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 con- sistent with this decision. 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, Pacific Micronesia Corporation d/b/a DAI- ICHI Hotel Saipan Beach, Garapan, on the Island of Saipan, CNMI, its officers, agents, successors, and as- signs, 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. DAI-ICHI HOTEL SAIPAN BEACH 3 (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 an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time employees em- ployed by the Employer in the Commonwealth of the Northern Mariana Islands; excluding all managerial employees, professional employees, confidential em- ployees, guards and supervisors as defined in the Act. (b) Furnish the Union the information that it requested on September 2, 1998, with the exception of item 8. (c) Within 14 days after service by the Region, post at its facility in Garapan, on the Island of Saipan, CNMI, copies of the attached notice marked “Appendix.” 2 Cop- ies of the notice, on forms provided by the Regional Di- rector for Region 20, after being signed by the Respon- dent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices 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 Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 11, 1998. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- 2 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.” sponsible official on a form provided by the Region attest- ing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. February 22, 1999 Sarah M. Fox, Member Wilma B. Liebman, Member J. Robert Brame III, Member (SEAL) 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 vio- lated the National Labor Relations Act and has ordered 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 represen- tative 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 bar- gaining representative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: All full-time and regular part-time employees em- ployed by us in the Commonwealth of the Northern Mariana Islands; excluding all managerial employees, professional employees, confidential employees, guards and supervisors as defined in the Act. WE WILL furnish the Union information necessary and relevant to the role as collective-bargaining representa- tive. PACIFIC MICRONESIA CORPORATION, d/b/a DAI-ICHI HOTEL SAIPAN BEACH