Dover Caterers Ind d/b/a d/b/a Dover College Services Inc

682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dover Hospitality Services, Inc. a/k/a Dover Caterers, Inc., a/k/a Dover College Services, Inc. and Lo- cal 1102 of the Retail, Wholesale & Department Store Union, United Food & Commercial Work- ers Union. Case 29–CA–030591 September 30, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA On July 12, 2012, the Board issued a Decision and Or- der in this proceeding, which is reported at 358 NLRB 710. Thereafter, the General Counsel filed an application for enforcement in the United States Court of Appeals for the Second Circuit. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally in- firm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appoint- ments to the Board were not valid. Thereafter, the court of appeals vacated the Board’s Decision and Order and remanded this case for further proceedings consistent with the Supreme Court’s decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. In view of the decision of the Supreme Court in NLRB v. Noel Canning, supra, we have considered de novo the judge’s decision and the record in light of the exceptions and briefs. We have also considered the now-vacated Decision and Order, and we agree with the rationale set forth therein. Accordingly, we adopt the judge’s rulings, findings, and conclusions and adopt the judge’s recom- mended Order1 to the extent and for the reasons stated in the Decision and Order reported at 358 NLRB 710, which is incorporated herein by reference. MEMBER MISCIMARRA, concurring. I concur in this case and agree, for the reasons stated by the judge, that the Respondent violated Section 8(a)(5) and (1) of the Act when it failed and refused to furnish information the Union requested on January 5, 2011, and I join in adopting the judge’s recommended Order.1 Although I agree with the judge’s decision, I 1 We shall substitute a new notice in accordance with our decision in Durham School Services, 360 NLRB 694 (2014). 1 I also agree that the Respondent’s exceptions and brief substantial- ly comply with the requirements of Sec. 102.46 of the Board’s Rules and Regulations, that there is no basis upon which to reverse the judge’s credibility resolutions under Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951), and that the would make two observations not addressed by the judge. First, I do not pass or rely on the judge’s state- ments that the obligation to disclose requested infor- mation is unaffected by potential “other uses” or other “pending litigation” involving benefit funds.2 Second, to the extent the requested documents encompassed finan- cial information concerning locations other than the two facilities at issue in this case, the requests in this respect may have been overbroad.3 These points may very well be relevant if similar issues arise in other cases, but the Employer’s failure to respond at all to the Union’s Janu- ary 5, 2011 requests means these potential defenses were not timely raised. For these reasons, I concur in this matter. 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 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 behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain in good faith with Lo- cal 1102 of the Retail Wholesale & Department Store Union, United Food & Commercial Workers Union by declining to furnish information relevant and necessary to the Union’s performance of its duties as the exclusive representative of our employees in the following appro- priate unit: Union did not waive its right to the requested information by waiting 8 months after the Respondent claimed inability to pay to make its re- quest. 2 For example, it is well established that requests for financial infor- mation, even if relevant, can implicate potential confidentiality con- cerns that, if timely raised, may result in an obligation for the parties to engage in bargaining regarding potential ways to accommodate such concerns. See, e.g., Silver Bros. Co., 312 NLRB 1060 (1993). In the instant case, however, the Respondent did not respond to the Union’s request for financial information, and therefore it did not raise any potential confidentiality defense in a timely manner. 3 Here as well, the Respondent’s failure to respond in any manner to the Union’s requests means such a defense was not timely raised, which would prevent it from being considered at this juncture. 361 NLRB No. 60 DOVER HOSPITALITY SERVICES, INC. 683 All regularly employed kitchen, dining room, bar, cafe- teria, kiosk and cart employees employed by us at the Suffolk County Community College Selden Campus and the grill employees employed by us at the Suffolk County Community College Brentwood Campus, ex- cluding, however, all cooks, custodians, university stu- dents, causal employees as defined in Article 2, office and clerical employees, supervisors and guards as de- fined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL provide the Union with the information re- quested by its letter of January 5, 2011. DOVER HOSPITALITY SERVICES, INC. A/K/A DOVER CATERERS, INC., A/K/A DOVER COLLEGE SERVICES, INC. The Board’s decision can be found at www.nlrb.gov/case/29–CA–030591 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.