Sheraton Hartford Hotel

SHERATION HARTFORD HOTEL Sheraton Hartford Hotel and Local 217, Hotel and Restaurant and Bartenders Union, AFL-CIO. Case 39-CA-3385 June 29, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On January 19, 1988, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified and to adopt the recom- mended Order. We agree with the judge that the Respondent did not violate Section 8(a)(5) when it failed to fur- nish the Union with requested information regard- ing the prices for separate components of a New Year's Eve package offered by the Respondent. But, rather than fmding that the information re- quested by the Union did not exist, we find that the Union has failed to meet its burden of showing the reasonable and probable relevance of the requested information. Since 1976, the Union has represented the Re- spondent's employees. The parties' collective-bar- gaining agreement contains a special provision (art. XI, sec. 17) that allows for the parties to bargain annually on the wages of employment for waiters, waitresses, and bartenders for any New Year's Eve function offered by the Respondent. It is under- stood that the gratuity is based on food and bever- age cost. If no agreement is reached, the contract provides for instant arbitration, and the arbitrator is precluded from awarding a gratuity in excess of 15 percent of the retail cost. Prior to 1985, waiters and waitresses were com- pensated for the New Year's Eve functions in a fixed amount per customer with a guaranteed number of customers per waiter. In 1985 the Re- spondent changed from the fixed amount method of compensation to a gratuity system based on a negotiated percentage of the food and beverage cost. The record discloses that the Respondent's change in 1985 resulted in the waiters and waitress- es receiving approximately $20 less for working the New Year's Eve function than had been received in prior years; however, bartenders received more after the change. 463 On October 29, 1986,1 the Union requested in- formation from the Respondent regarding its plan for New Year's Eve. On November 3, 1986, the Respondent sent a letter to the Union stating it would offer a dinner and reception on New Year's Eve that had an inclusive price of $86 per couple, and the price included tax and gratuity. The letter further stated that servers and bartenders would re- ceive a 15-percent gratuity. The Respondent also included an advertisement of the function that listed the full menu for the dinner and the other items (open bar, free parking, deluxe accommoda- tion for two, entertainment) included in the total package cost of $198.70 per couple. On November 26, the Union informed the Re- spondent that the November 3 letter was inad- equate and that the Union needed the cost break- down for all components of the New Year's Eve package. On December 23, the Respondent in- formed the Union that the Union could get a breakdown of the cost of the dinner from its ban- quet office, but that the other information was not pertinent. Although the Respondent subsequently provided information that the cost of the open bar was $20 and the cost of the meal was $48, it has continued to refuse to provide the specific cost breakdown of the New Year's Eve package as re- quested by the Union. The Union asserts that the reason it needed the requested information was to determine whether the $86 figure for food and beverages was accurate or was undervalued (and the remaining items inflat- ed) in order to reduce the gratuity to which em- ployees were entitled. At the hearing, the Union asserted that it suspected the Respondent had arbi- trarily devalued unspecified portions of the pack- age because employees received substantially less compensation when the Respondent changed to a percentage-based gratuity system in 1985. Section 8(a)(5) obligates an employer to provide a union requested information if there is a probabil- ity that the information would be relevant to the union in fulfilling its statutory duties as bargaining representative.2 Where the requested information concerns wage rates, job descriptions, and other in- formation pertaining to employees within the bar- gaining unit, the information is presumptively rele- vant.3 Where the information does not concern matters pertaining to the bargaining unit, the union must show that the information is relevant.4 When ' All subequent dates are in 1986 , unless otherwise indicated 2 NLRB v Acme Industrial Co, 385 U S 432 (1967) s Trustees of the Masonic Hall, 261 NLRB 436, 437 (1982) 4 Pfizer, Inc, 268 NLRB 916, 918 (1984), enfd 763 F 2d 887 (7th Cu. 1985) 289 NLRB No. 54 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the requested information does not pertain to mat- ters related to the bargaining unit, to satisfy the burden of showing relevance, the union must offer more than mere suspicion for it to be entitled to the information. Southern Nevada Builders Assn., 274 NLRB 350, 351 (1985). The information the Union seeks pertains to the cost of such items as an open bar, parking, accom- modations, and entertainment. The parties agree that the employees' gratuity for the evening was properly based only on the food and beverage components of the package cost. Therefore, the cost of the other components of the package that entails the setting of rates for services separate from the food and beverage component was not presumptively relevant, and the Union must show the information is relevant. The Union asserts that it needs the price on the nonfood and beverage items in the New Year's Eve dinner package in order to determine whether the Respondent had devalued the price of the food and beverages and shifted that cost to the other components of the New Year's Eve package. The sole basis for the Union's belief that food and bev- erage cost may have been devalued in the 1987 dinner package is the fact that some of the unit em- ployees received less compensation under the system presently in effect than they had under a previous system. That some of the employees re- ceive less under the new system of compensation may be grounds for dissatisfaction with the current system, but it does not satisfy the Union's burden to demonstrate that information regarding the price of nonfood and beverage items is relevant.5 At best, the Union has advanced a hypothetical theory explaining how the information might be useful in determining whether the Respondent has violated the parties' contract. See Southern Nevada Builders' Assn., supra. We find that the Union's proffered reason for believing the information relevant is nothing more than mere suspicion.6 We conclude that the Union has not demonstrated the reasonable and probable relevance of the requested informa- tion. For these reasons, we therefore adopt the judge's recommended Order dismissing the com- plaint. 5 The General Counsel and the Union are not contesting the change in the method of compensation We find this case distinguishable from Pertec Computer Corp, 284 NLRB 810 (1987), which concerned a union's request to examine the re- spondent's financial records. In Pertec the information was necessary to substantiate the respondent's contention that its financial circumstances were central to its decision to relocate its operation. Here, the Union has received the information that is pertinent to unit employees, namely, the food and beverage cost upon which the gratuity is based ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Mark W. Engstrom, Esq., for the General Counsel. Jay S. Siegel, Esq. (Siegel, O'Connor, Schiff, Zangari & Kainen, P.C.), for the Respondent. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was heard by me in Hartford, Connecticut, on 12 and 13 November 1987.1 The complaint, which issued on 28 April, and was based on an unfair labor practice charge filed on 2 March by Local 217, Hotel and Re- taurant and Bartenders Union, AFL-CIO (the Union), alleges that Sheraton Hartford Hotel (Respondent), vio- lated Section 8(a)(1) and (5) of the Act by refusing to provide the Union with certain information it requested from Respondent regarding a breakdown of the charges for its New Year's Eve party for 1986-1987.2 On the entire record including the briefs filed, I make the following FINDINGS OF FACT 1. JURISDICTION There being no dispute, I find that 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. II. FACTS AND ANALYSIS Since about 1976, the Union has represented the fol- lowing employees of Respondent: All regular full-time and regular part-time em- ployees in the food and beverage preparation and service department, including banquet waiters, wait- resses and bartenders, housekeeping department uni- formed service department, heat, light and power department, repairs and maintenance department, laundry department, guest service agents, restaurant cashiers, head banquet housemen, PBX operators and reservationists employed at the Employer's Trumbull Street at Civic Center Plaza, Hartford, Connecticut location but excluding all other em- ployees such as accounting, administrative, sales, managerial, security and guards, timekeepers and re- ceiving clerks, clerical employees, banquet cashiers and checkers, storeroom personnel, assistant house- keeper, inspectress, assistant chef, head waiter, pur- chasing agents, food and beverage controllers, as- ' Unless indicated otherwise, all dates referred to relate to the year 1987 2 Unless indicated otherwise, the phrase New Year's Eve party refers to the party beginning the evening prior to 1 January 1987 SHERATON HARTFORD HOTEL sistant restaurant manager, executive steward, ban- quet steward, confidential employees, casual em- ployees and supevisors as defined in the Act. This unit description is set forth in the Union's collec- tive-bargaining agreement with Respondent, the last of which expired 30 September. Article XI, section 17 of this agreement provides: 17) The Parties to this Agreement shall, if possible, meet to resolve the terms and wages of employment for New Year's Eve no later than November 1st of each year, if the Hotel plans any special events for the evening, such as special package deals, parties, etc. If no agreement is reached, the issues shall be submitted to instant arbitration without briefs and a bench decision requested if it can be provided by the arbitrator. The arbitrator shall not render an award with respect to gratuities which provides in excess of fifteen percent (15%) of the retail cost, and shall not award premium wages for waiters, waitresses, and bartenders. By letter to Respondent dated 29 October 1986, the Union, by Constance Holt, its organizer, wrote: That is to notify you that the Union wishes to commence negotiations concerning the terms and wages of employment for New Year's Eve. In order to begin that process the Union is requesting infor- mation concerning what plans the Hotel has. Specif- ically we are requesting : 1. what type of function (parties, special package etc.); 2. What price the Hotel is offering the public for New Year's Eve, and 3. what the company plans to pay the employ- ees. If there is any other relevant information please include it. If you have any questions please contact me. Holt testified that in addition to beginning the process re- ferred to in article XI, section 17, the information she re- quested "what type of function" was, principally, to learn whether the event would be buffet or individual table service (which would affect the number of employ- ees required), and whether there would be a flat fee for the serving employees or whether it would be on a per- centage basis. The prior year's New Year's Eve party was the first that paid the employees on a percentage basis and the employees received less than they had in the prior 10 or 11 years. By letter dated 3 November 1986, Respondent, by Lori Lafemina, its director of per- sonnel, wrote to Holt: Per your request in your letter of October 29th for information referencing the New Year's Eve Plans for dinner package, I have outlined what the payment will be for our staff who work the func- tion. The dinner and reception is an inclusive pre-fix price of $86.00 per couple which includes tax and gratuity. The servers and bartenders will receive 15% gra- tuity which as you know is beyond the normal ban- quet gratuity distribution of 12.5%, 13% for bever- 465 age provided in the contract, yet does not exceed the contractual provisions. Please find attached the menu for public distribu- tion. As we have met the contractual obligations, please accept this information as fulfillment of the disclosure provided for in Article XI Section 17. If there are any questions, please do not hesitate to contact me. Enclosed was a flyer advertising the evening as a "Gala Package $198.70 per couple." The full menu was listed (with a choice of two main courses), and the flyer listed the other items that were included in the total package cost: open bar, dinner and dancing, champagne toast at midnight, deluxe accommodations for two, late checkout time New Year's Day, free use of health club and pool, and free parking. Holt testified that this letter did not sat- isfy her request because it was a flat statement that the food and beverage cost was $86, including tax and tips; it did not give the cost breakdown for the other compo- nents that the Union was looking for-the room, decora- tions, music, entertainment, the breakfast (although Holt testified that it was included in the total cost, the en- closed flyer did not list it), and any other components that they might not have known about. The reason the Union needed this information was to determine whether the $86 figure for food and beverages was accurate or was devalued, and the remaining items inflated so that the food and beverage cost would be less and the result- ing gratuities to the employees would correspondingly be less. On 26 November 1986 Holt met with Lafemina and in- formed her that this letter was inadequate and she told her the reason, as stated above. She told her that she needed the breakdown for decorations, entertainment, the room, and breakfast cost. Lafemina was noncommit- tal, but said that the package information was in the mail. Not having received this information, by letter dated 19 December 1986 Holt wrote to Respondent' s general manager, Reginald McDowell (Lafemina had some medi- cal problems) about a number of pending issues, includ- ing: Finally, I also want to reiterate my request for pertinent information regarding the New Years Eve Negotiations. Several times I have requested a price breakdown of the $112.00 that makes up the $198.00 New Years Eve package. I have yet to receive this information. Having received no reply to this letter, Holt called Re- spondent on 23 December 1986 and spoke to McDowell, as Lafemina was on a leave of absence. She told him that she was calling because her request had not been satis- factorily answered and she wanted to resolve the matter before the Christmas holiday. She asked McDowell for a breakdown of all the components of the evening. He told her that if she wanted a breakdwon of the cost of the dinner she could get that from Respondent's banquet office, but the other information was not pertinent and he was not going to give it to her. They then discussed and agreed on the mechanism of the 15-percent gratuity 466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and the number of guests guaranteed for each empoyee. That was the extent of the conversation. After this con- versation, she asked the Union's steward in the banquet department to locate the banquet menu with the prices, but never received any further information in this regard. By letter dated 24 December 1986, Holt wrote to McDowell: This is to confirm the agreement made thus for [sic] concerning the rates and working conditions for employees who will work the New Years Eve function. 1) The gratuity will be 15% of the cost of Dinner and reception. 2) Because the dinner is a buffet there will be a minimum of 24 per server. In addition to the above agreements, the Hotel is refusing to provide the price breakdown of the $86.00 Dinner/Reception and the remaining $112.00 in the $198.00 New Years Eve package. Specifical- ly, the Union has requested for the purpose of nego- tiations the Menu items prices, the reception costs, and the price breakdown of the room, entertain- ment, decorations, breakfast, and any other costs that are included in the $198.00 package. In our conversation December 23rd, you refused to pro- vide me this information. Later in the day on 24 December 1986 Holt received a number of items from Lafemina, including another copy of the flyer advertising the Respondent's New Year's Eve gala, and its component parts. Unlike the earlier one that Holt had received from Respondent, this one had two handwritten notations : Next to the words "Open Bar from 8:00 p.m.-2:00 a.m." was written "20.00" and next to the food items on the menu was written "48.00."3 There were no further notations or explanations. On 30 December 1986, Holt and Lafemina executed the following agreement: The agreement, thus far, concerning the working conditions for the New Years Eve function is as fol- lows: 1. The gratuity will be 15% of the retail cost of the dinner and reception, which you state is $86.00 inclusive of tax & grat. 2. Because the dinner is a buffet there will be a guarantee of 24 covers per server. Prior to executing this agreement Holt informed Lafe- mina that the Union was reserving its right to arbitrate Respondent's computation of the $86 and that she would receive a letter to that effect. By letter dated 30 Decem- ber 1986, Holt wrote Lafemina: Because the Hotel refuses to provide pertinent in- formation regarding the specific cost breakdown of the New Years Eve package, we are unable to de- termine the validity of the $86.00 upon which the 3 The agreed-on gratuity rate of $68, plus the applicable tax, equals $86 15% grauity (sic) is based. We therefore reserve our right to arbitrate the new years eve agreement. By letter dated 6 January, Holt wrote to Lafemina: As of yet the New Year's Eve function informa- tion has not been provided. The flyer you enclosed in two different letter [sic] does not address the in- formation I requested . Several times I have asked for the price breakdown of the entire package. Spe- cifically, I requested: 1) the menu item prices and reception cost and 2) the cost breakdown of the re- maining $112.00 in the $198.00 New Year's Eve Package. I was told by you that the remaining $112.00 consists of the cost for decorations, enter- tainment, room, and breakfast. It was those items and any others that I asked for a dollar amount on. The information you have sent thus far is simply inadequate in determining the legitimacy of the $86.00. While you claim the information has been provid- ed, Mr. McDowell informed me that the Hotel management refuses to provide the specific break- downs. Thus, we shall exercise our right to arbi- trate. By letter dated 5 January, Lafemina wrote to Holt: We are in receipt of your letter dated December 30, 1986. Please be advised that the hotel has pro- vided the Union with all pertinent information (see letters dated 12/18/86 and 11/3/86). The $86.00 breakdown was provided. Also the banquet func- tion order was available prior to the function. If you check with the servers I am sure they will ac- knowledge this. An agreement was reached by the Union and the Hotel as to the wages and covers. The contract does not state that the price charged to customers is to be negotiated between the Union and the Hotel-only the gratuity and wage amounts . As this was negotiated and the Hotel agreed to pay food servers an additional 2-1/2% after food gratuity and bartenders an additional 1-1/2% of Beverage, as well as guarantee 24 covers per food server, we consider negotiations final and complete. The contract states that "if no agreement is reached, the issues shall be submitted to instant arbi- tration", etc., an agreement was reached. I hope this clarified the Hotel's position. Should you have any questions, please contact us. By letter dated 15 January, Holt made a final request to Lafemina for the breakdown of costs for the New Year's Eve party; having received no reply, by letter dated 4 February she wrote to the Connecticut State Board of Arbitration requesting arbitration of the issue. The arbi- tration had not been scheduled at the time of the hear- ing. As can be gleaned from the facts recited above, the General Counsel and the Union's argument is that they are entitled to this information in order to ascertain that the components that they are paid on, food and bever- SHERATON HARTFORD HOTEL ages, was not devalued compared to the other compo- nents, room, entertainment, etc. McDowell testified for Respondent. He testified that there is no relationship be- tween Respondent's pricing of food and beverages and its pricing of room rates in packages. He testified that Respondent maintains a banquet office that distributes brochures listing menus with prices, payment, and credit plans; the food and beverage costs Respondent set for the New Year's Eve gala were consistent with its regular food and beverage costs listed in these brochures. Al- though these are generally fixed prices, there is some degree of price flexibility depending on the number of guests at the function and whether it is a busy time for Respondent's banquet business. Respondent's position is that the Union is not entitled to this information because it would make no difference; as counsel for Respondent asked Holt, what difference would it make if Respondent told the Union that the room rate component was $50 or $100? In addition, what the Union was attempting to do was bargain about Respondent's rates, which admittedly it cannot do. Finally, if the Union really wanted to learn of the authenticity of the $86 rate for food and beverage, it could have checked this with Respondent's banquet office, which it did not bother to do. The law is clear that an employer, on request, must provide a union representing its employees with informa- tion that is relevant to it "in carrying out its statutory duties and responsibilities." NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967). Chief among a union's re- sponsibilities is its obligation to enforce and administer the collective-bargaining agreement, and any information relevant to the Union in this regard must be provided to it, on request. Conrock Co., 263 NLRB 1293 (1982). In Pfizer, Inc., 268 NLRB 916, 918 (1984), the Board stated: "This, information need not necessarily be dispositive of the issue between the parties, it need only have some bearing on it." The facts are clear and all three witnesses were ex- tremely articulate and credible. The General Counsel al- leges that the Union is entitled to the dollar value of the other components of the cost of the New Year's Eve package because only with this information could it be certain that the food and beverage portion (the only por- tion for which its members are paid) was not underval- ued in relationship to the other components of the pack- age's cost. However, this argument assumes one factor that I find was not established-a connection between the food and beverage charge and the total package cost. McDowell, who testified in a very convincing way, testi- fied that there was no relation between the food and beverage charge and the total cost of the package; that Respondent priced the food and beverages from its ban- quet price list as it would for any affair, taking into con- sideration the food and liquor served and the type of 467 service employed. The factors employed in determining the package cost were the desire to remain competitive with the other nearby comparable hotels while, at the same time, maximizing revenue for an evening that would otherwise be a low-revenue evening. This testimo- ny is supported by other evidence as well. When McDowell commenced his employment at Respondent in August 1985, he learned that the prior New Year's Eve party generated 125 guests at a rate of $235 per couple. His research showed that this price was too high consid- ering the competition and left, unused, available space- the Respondent's ballroom accommodates 550 people. For the 1985-1986 New Year's Eve party, Respondent lowered the price to $198.50 (this was in line with the competition) and had 300 guests. McDowell testified that Respondent "still had more room to grow," and, in de- termining the price for the 1986-1987 party, "we did a marketing ploy" by setting the price at $198.70, which resulted in 500 guests. The above convinces me that, in determining the cost for the 1986-1987 New Year's Eve party, Respondent did not set a price for each component of the evening and add these components to reach the final price. Rather, the price was determined by competitive reasons and the desire to fill the ballroom, and by the "marketing ploy" of rigging the price to the year-$198.70. I there- fore find that the information the Union requested did not exist. The information that it was entitled to, and that did exist, was the banquet menu, which Respondent informed the Union they could inspect (as could anyone) to determine the accuracy of the $86 figure for food and beverages; the Union chose not to take advantage of this offer. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent had not engaged in any conduct in vio- lation of the Act as alleged here. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER It is recommended that the complaint be dismissed in its entirety. * 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