Keauhou Beach Hotel

National Labor Relations Board - Board Decisions

May 31, 1990

298 N.L.R.B. 702 (N.L.R.B. 1990)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Azabu USA (Kona) Co., Ltd. d/b/a Keauhou Beach
Hotel and Hotel Employees and Restaurant
Employees, Local 5, affiliated with Hotel Em-
ployees and Restaurant Employees International
Union, AFL-CIO. Case 37-CA-2741
May 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 7, 1989, the General Counsel of
the National Labor Relations Board issued an
amended complaint alleging that the Respondent
has violated Section 8(a)(5) and (1) of the National
Labor Relations Act by refusing to bargain and to
provide necessary and relevant information to the
Union following its certification in Case 37-RC-
2934. (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 Re-
spondent filed an answer admitting in part and de-
nying in part the allegations in the amended com-
plaint.
On April 9, 1990, the General Counsel filed a
Motion for Summary Judgment. On April 11, 1990,
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted. On April 24,
1990, the Respondent filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
The Respondent in its answer admits its refusal
to bargain and to furnish information, but attacks
the validity of the Union's certification on the basis
of its objections to the election in the representa-
tion proceeding.
All representation issues raised by the Respond-
ent were or could have been litigated in the prior
representation proceeding. The Respondent does
not offer to adduce at a hearing any newly discov-
ered and previously unavailable evidence, nor does
it allege any special circumstances that would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find
that the Respondent has not raised any representa-
tion issue that is properly litigable in this unfair
labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Although the Respondent in its answer denies
that the information the Union requested is neces-
sary and relevant to its role as exclusive bargaining
representative, we find that this denial does not
raise any factual issues warranting a hearing. The
only contentions made by the Respondent in its re-
sponse to the Notice to Show Cause with regard to
the refusal-to-provide-information allegation are:
(1) that the Union's information request is ambigu-
ous, i.e., that it fails to specify whether it is seeking
information regarding all employees or only unit
employees;' and (2) that the allegation is barred by
the 10(b) limitations period because the underlying
charge only alleged that the Respondent had re-
fused to bargain and did not specifically allege that
the Respondent had unlawfully refused to provide
information to the Union. Neither contention raises
a sufficient factual issue to warrant a hearing. First,
the General Counsel concedes for purposes of the
motion that the Union's request is limited to infor-
mation regarding unit employees, and the Respond-
ent has not attempted to rebut the presumption that
such information is relevant. 2 Moreover, even if
the Union's request was ambiguous and/or intend-
ed to include information regarding nonunit em-
ployees when made, this would not excuse the Re-
spondent's blanket refusal to comply. It is well es-
tablished that an employer may not simply refuse
to comply with an ambiguous and/or overbroad in-
formation request, but must request clarification
and/or comply with the request to the extent it en-
compasses necessary and relevant information. 3 Fi-
nally, we find that the absence of a specific allega-
tion in the charge regarding the Respondent's re-
fusal to provide information is not fatal under Sec-
tion 10(b) because the complaint allegation is clear-
ly "closely related" to the charge allegation that
the Respondent refused to bargain with the
Union. 4
The amended complaint alleges that the Union requested the follow-
ing information from the Respondent: (I) name, age, classification, wage
rates, red circle rates (if any), and seniority date of each covered employ-
ee; (2) weighted average wage rate (total straight-time hours earned di-
vided by total straight-time hours worked); (3) total compensable hours
per month for the past year; (4) total cost, on a compensable hour basis,
of benefits use (sick leave, vacation pay, holiday pay, funeral leave, etc.)
(example: total cost of sick leave used by all employees for a year divided
by total compensable hours for the year); (5) cost per employee per
month of the medical, dental drug, vision, and/or life insurance and
pension/profit-sharing plans, if any.
2
See, e.g., Masonic Hall, 261 NLRB 436 (1982); Mobay Chemical
Corp., 233 NLRB 109 (1977).
3 See, e.g., A-Plus Roofing, 295 NLRB 967, JD fn. 7 (July 11, 1989);
Barnard Engineering Co., 282 NLRB 617, 621 (1987); and Colgate-Palmo-
live Co., 261 NLRB 90, 92 fn. 12 (1982).
4 See generally Nickles Bakery of Indiana, 296 NLRB 927 (1989). In
Nickles the Board identified several factors to be considered in determin-
ing whether allegations are closely related: (1) whether the allegations in-
volve the same legal theory; (2) whether the allegations arise from the
same factual circumstances or sequence of events; and (3) whether the
respondent would raise similar defenses to both allegations. All these fac-
tors are satisfied here. The allegations involve the same section of the
Act (Sec. 8(a)(5)), arise from the same factual circumstances and se-
quence of events (the Union's election, certification, and subsequent re-
quest for bargaining and for information), and share a common defense
(the alleged invalidity of the Union's certification)
702
KEAUHOU IBEACII tOTEI.
Acccordingly, we grant the General Counsel's
Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OFi FACT
I. JURISDICTION
The Respondent, a Hawaii corporation with an
office at Kailua-Kona, Hawaii, is engaged in the
operation of a hotel. During the 12-month period
ending July 30, 1989, the Respondent received
gross revenues in excess of $500,000 and purchased
and received at its Kailua-Kona facility products,
goods, and materials valued in excess of $5000 di-
rectly from points located outside the State of
Hawaii. We find that the Respondent is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Union
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
11. ALLEGED UNFAIR LABOR PRAcrTCEs
A. The Certification
Following the election held October 25, 1988,
the Union was certified on June 8, 1989, as the col-
lective-bargaining representative of the employees
in the following appropriate unit:
All full-time and regular part-time employees
employed by Respondent at its hotel at Kailua-
Kona, Hawaii; excluding confidential employ-
ees, managerial, supervisors, guards and/or
watchmen as defined in the Act.5
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since June 19, 1989, the Union has requested the
Respondent to bargain and to furnish information,
and, since July 3, 1989, the Respondent has re-
fused. We find that this refusal constitutes an un-
lawful refusal to bargain in violation of Section
8(a)(5) and (1) of the Act.
CONCIUSION OF1 LAW
By refusing on and after July 3, 1989, to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit and to furnish the Union requested informa-
tion, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
'The unit ppears as set forth in the certification.
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 Respondent 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 law, we shall construe the ini-
tial period of the certification 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, Azabu USA (Kona) Co., Ltd.
d/b/a Keauhou Beach Hotel, Kailua-Kona, Hawaii,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Hotel Employees
and Restaurant Employees, Local 5, affiliated with
Hotel Employees and Restaurant Employees Inter-
national Union, AFL-CIO as the exclusive bargain-
ing representative of the employees in the bargain-
ing unit, and refusing to furnish the Union informa-
tion that is relevant and necessary to its role as the
exclusive bargaining representative of the unit em-
ployees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate 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
employed by Respondent at its hotel at Kailua-
Kona, Hawaii; excluding confidential employ-
ees, managerial employees, supervisors, guards
and/or watchmen as defined in the Act.
(b) On request, furnish the Union information
that is relevant and necessary to its role as the ex-
clusive representative of the unit employees.
703
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Post at its facility in Kailua-Kona, Hawaii,
copies of the attached notice marked "Appendix." 6
Copies of he notice, on forms provided by the offi-
cer in charge for Subregion 37, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous plces 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.
(c) Notify the officer in charge in writing within
20 days from the date of this Order what steps the
Respondent has taken to comply.
6 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the Nationalr
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Hotel Em-
ployees and Restaurant Employees, Local 5, affili-
ated with Hotel Employees and Restaurant Em-
ployees International Union, AFL-CIO as the ex-
clusive representative of the employees in the bar-
gaining unit, and WE WILL NOT refuse to furnish
the Union information that is relevant and neces-
sary to its role as the exclusive bargaining repre-
sentative of the unit employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise 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 bargaining unit:
All full-time and regular part-time employees
of Azabu USA (Kona) Co., Ltd. d/b/a Keau-
hou Beach Hotel; excluding confidential em-
ployees, managerial, supervisors, guards
and/or watchmen as defined in the Act.
WE WILL, on request, furnish the Union informa-
tion that is relevant and necessary to its role as the
exclusive bargaining representative of the unit em-
ployees.
AZABU USA (KONA) Co., LTD.
D/B/A KEAUHOU BEACH HOTEL
704