Royal Inn of South Bend

National Labor Relations Board - Board Decisions

Jun 15, 1976

224 N.L.R.B. 810 (N.L.R.B. 1976)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hotel Enterprises , Inc, d/b/a Royal Inn of South
Bend and Hotel & Restaurant Employees and Bar-
tenders Local # 103, a/w Hotel and Restaurant Em-
ployees and Bartenders International Union, AFL-
CIO Case 25-CA-7318
June 15, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On March 2, 1976, Administrative Law Judge Her-
bert Silberman issued the attached Decision in this
proceeding Thereafter, the General Counsel filed
limited exceptions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified herein
We agree with the Administrative Law Judge's
conclusion that Respondent violated Section 8(a)(1)
and (5) of the Act by withdrawing recognition of its
employees' representative on August 16, 1975 We
find merit, however, in the General Counsel's excep-
tions to the Administrative Law Judge's finding that
Respondent did not violate the Act by its failure to
furnish information registered by the Union
As set forth in the attached Decision, on June 9,
1975, the Union wrote a letter to Respondent re-
questing a meeting for the purpose of negotiating a
collective-bargaining agreement and also requesting
"a seniority list of current bargaining unit employees
showing name, home address, date of hire, work clas-
sification and present rate of pay " Although there is
some dispute as to whether Respondent ever received
this letter despite the return receipt in evidence,' it is
apparent that telephone communications between
Union Representative Dale Hudson and Re-
spondent's counsel, Ray Blankenship, led to an
initial bargaining session on July 11, 1975 During
this meeting, Hudson requested the seniority list
Respondent's acting manager, Walter Painter, re-
sponded that while he did not have it he would get it
i The Union s representative Dale Hudson testified that on June 9 1975
he mailed a copy of this registered letter with return receipt to Jack Man
ion and that a copy of the letter was sent to Ray Blankenship Respondent s
attorney The record contains a copy of the letter and a return receipt dated
June 10 1975 and signed by Vicki Bidlack Respondents front desk man
ager Respondent however contends that the letter never came to the atten
tion of either Manion or Blankenship
When Hudson again requested the seniority list at a
second collective-bargaining session on June 30,
1975, he was given a paper which listed the employ-
ees and their dates of hire Hudson then indicated
that he needed the employees' addresses and re-
turned the list to Painter who agreed to mail the ad-
ditional information to Hudson
As reflected by Painter's testimony, Respondent's
position is that it has never refused to furnish the
requested information to the Union Noting that Re-
spondent unlawfully withdrew recognition from the
Union before providing the Union with the informa-
tion, as agreed, the Administrative Law Judge con-
cluded that Respondent has not refused, or contin-
ued to refuse, "to furnish the Union said data," as
alleged in the complaint Whether Respondent has
expressly refused to furnish the requested informa-
tion is purely an exercise in semantics What is essen-
tial is that, in its capacity as bargaining representa-
tive of current unit employees,' the Union requested
information which, to date, Respondent has failed to
provide There is no showing in the record that Re-
spondent did not understand the nature of the
Union's request That Respondent's failure to pro-
vide the requested information is attributable to its
decision to withdraw recognition from the Union be-
fore the information was assembled does not negate
the Union's right to the requested information In-
deed, Respondent should not be permitted to avoid
its lawful obligation to furnish the requested infor-
mation by virtue of its other unlawful conduct Con-
trary to the Administrative Law Judge, therefore, we
find that Respondent's failure to provide the infor-
mation violated Section 8(a)(5) and (1) of the Act
Accordingly, we shall order Respondent to provide
the Union with the seniority list as initially requested,
including names, home addresses, dates of hire, work
classifications, and present rates of pay
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent Hotel En-
terprises, Inc, d/b/a Royal Inn of South Bend,
South Bend, Indiana, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order as herein modified
I Insert the following as paragraph 1(b) and relet-
ter the subsequent paragraph accordingly
"(b) Withholding from the said labor organization
2 Specifically regarding employees addresses Hudson indicated that they
were necessary because of new hires of whom the Union was unaware
224 NLRB No 103
ROYAL INN OF SOUTH BEND 811
a seniority list of current bargaining unit employees
showing names, home addresses, dates of hire, work
classifications, and present rates of pay "
2 Insert the following as paragraph 2(b) and relet-
ter the subsequent paragraphs accordingly
"(b) Supply forthwith the aforesaid labor organi-
zation with a seniority list of current bargaining unit
employees showing names, home addresses, dates of
hire, work classifications, and present rates of pay "
3 Substitute the attached notice for that of the
Administrative Law Judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, bargain collectively
concerning rates of pay, wages, hours of em-
ployment, and other terms and conditions of
employment with Hotel & Restaurant Employ-
ees and Bartenders Local #103, a/w Hotel and
Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, as the exclusive repre-
sentative of all the employees in the appropriate
unit described below and, if an agreement is
reached, we will embody it in a signed contract
The appropriate unit is
All regular and regular part-time employees
employed at our South Bend, Indiana, hotel
and restaurant, exclusive of office clerical em-
ployees, confidential employees, manager, as-
sistant manager, housekeeper, guards, and all
supervisors as defined in the Act
WE WILL supply the aforesaid labor organiza-
tion with a seniority list of current bargaining
unit employees showing names, home addresses,
dates of hire, work classifications, and present
rates of pay
WE WILL NOT in any like or related manner
mterfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed in Sec-
tion 7 of the Act
HOTEL ENTERPRISES, INC, d/b/a ROYAL INN
OF SOUTH BEND
ders Local #103, a/w Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, herein
called the Union, on August 22, 1975, a complaint, dated
October 28, 1975, was issued alleging that Hotel Enterpris
es, Inc, d/b/a Royal Inn of South Bend,' herein called the
Company, has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the National Labor Relations Act, as amended Respon
dent filed an answer denying that it has engaged in the
alleged unfair labor practices A hearing in this proceeding
was held in South Bend, Indiana, on January 13, 1976 A
posthearing brief was filed with me by General Counsel
Upon the entire record in the case, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The Company, a California corporation, maintains
places of business in California, Nebraska, Texas, and In-
diana The only facility involved in this proceeding is a
hotel and restaurant which the Company operates in South
Bend, Indiana During the calendar year 1975, which peri-
od is representative of Respondent's operations, the Com-
pany had gross revenues in excess of $500,000 from its
South Bend hotel and purchased goods and other materials
valued in excess of $50,000 which were shipped through
channels of interstate commerce to its South Bend, Indi-
ana, facility directly from States other than the State of
Indiana Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A The Issues
In substance, the complaint alleges that the Company in
violation of the Act has refused to bargain collectively with
the Union as the exclusive representative of the employees
in an appropriate unit, in that
1 On June 9, 1975, the Company was requested to fur-
nish to the Union certain information relating to the em-
ployees in the unit that it represented and at all times since
"the Respondent has refused, and continues to refuse, to
furnish to the Union said data "
2 On August 16, 1975, Respondent canceled a previous-
ly scheduled collective-bargaining meeting and withdrew
recognition from the Union
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge Upon a
charge filed by Hotel & Restaurant Employees and Barten-
i The following letter dated February 6 1976 was mailed by Ray T
Blankenship attorney representing Respondent to the Administrative Law
Judge
This is to advise you that the undersigned is withdrawing his appear
ance in the above matter
Please direct all further communications to the respondent
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's defenses are that it has not refused to fur-
nish the information requested by the Union, and that it
withdrew recognition from the Union because in good
faith it believed that the Union ceased to represent a ma-
jority of the employees in the bargaining unit
B The Bargaining Relationship and its Termination
On June 2, 1975, the Respondent, as the Charged Party,
entered into a settlement agreement in Case 25-CA-6879,
which also was executed on the same day by the Union
and by a Board agent The settlement agreement was ap-
proved on June 5, 1975, by the Regional Director Insofar
as is material to this proceeding the settlement agreement
provides
We will upon request, bargain with the above-named
Union as the exclusive representative of all employees
in the bargaining unit described below, with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment , and, if an un-
derstanding is reached, embody such understanding in
a signed agreement The bargaining unit is
All regular and regular part-time employees of the
Employer employed at its South Bend, Indiana, fa-
cility, exclusive of office clerical employees, confi-
dential employees, manager, assistant manager,
housekeeper, guards, and all supervisors as defined
in the Act
On June 9, 1975, the Union wrote a letter to Respondent
requesting a meeting for the purpose of negotiating a col-
lective bargairing agreement and also requesting "a senior-
ity list of current bargaining unit employees showing name,
home address, date of hire, work classification, and present
rate of pay " Respondent contends that it never received
this letter Nevertheless, there were telephone communica-
tions between Dale Hudson , the Union's representative,
and Ray Blankenship, the Company's representative, pur-
suant to which a bargaining meeting was scheduled for and
was held on July 11, 1975, at the Albert Pick Motel in
South Bend Representing the Respondent at this meeting
were its acting manager, Walter Painter, and Ray Blanken-
ship, and representing the Union was Dale Hudson Dur-
ing the meeting Hudson asked for the seniority list Painter
said he did not have it but that he would get it
A second collective-bargaining meeting was held on July
30, 1975 Among other things that occurred at this meeting
was that Hudson again asked for the seniority list He was
handed a paper which listed the employees together with
their dates of hire Hudson responded that he needed the
employees' addresses and returned the list to Painter who
agreed to obtain the additional information and who stated
that he would mail the seniority list and the employees'
names and addresses to Hudson This was not done, pre-
sumably because the Company decided to withdraw recog-
nition from the Union before the inforration had been
assembled Walter Painter testified that the Company nev-
er refused to furnish the Union with the information re-
quested by it
Shortly before August 16, 1975, Lester Humes, supervi-
sor of the Company's bar and lounge, Mary A Lacko,
supervisor of housekeeping , and Lee Seals, supervisor of
the kitchen, reported to Walter Painter that they had heard
personally from a majority of the employees in the dnit
represented by the Union that the employees did not wish
to be represented by the Union any longer 2 The Company
on August 16, 1975, sent to the Union the following mail-
gram
Sir this is to advise you that all further negotiations in
reference to Hotel Enterprises Inc have been can-
celled pending NLRB disposition of this case The em-
ployer has reasonable and good faith doubts that your
union,no longer represents the employees of the em-
ployer
There have been no further negotiations between the Com-
pany and the Union
C Conclusions
1 As to the failure to furnish information
The Company's position and the testimony of its acting
manager, Walter Painter, is that it never refused to furnish
the information requested by the Union Presumably, it did
not respond to the Union's June 9 letter because the letter
was not received At the July 11 bargaining session the
union representative asked only for a seniority list That
was prepared and handed to Dale Hudson at the July 30
session As Hudson also wished the addresses of the em-
ployees he returned the list to the company representatives
and Painter promised to provide him with all the informa-
tion he requested The Company withdrew recognition
from the Union before that was accomplished I find below
that the Company has violated the Act by withdrawing
recognition from the Union, however, I do not find, as
alleged in the complaint, that "Respondent has refused,
and continues to refuse, to furnish the Union said data'
2 As to the withdrawal of recognition
The Company entered into the settlement agreement on
June 2, 1975 Pursuant thereto two negotiating sessions
were held on July 11 and 30, 1975 At the end of the July
30 session the parties scheduled additional bargaining ses-
sions for August 20 and 21 Thus , as of August 16 when the
Company withdrew recognition, the bargaining relation-
ship established pursuant to the settlement agreement had
been in existence approximately 2-1/2 months, the parties
had held two bargaining meetings, and presumably prog-
ress was being made as a third meeting had been scheduled
for the following month The only ground advanced by
Respondent for withdrawing recognition was that shortly
2 Jerry Williams a bartender employed by the Company testified that on
August 13 1975 and the next day 38 employees signed an instrument which
stated I don t want Local # 103 of the hotel restaurant and bartender
union to represent me any longer At that time approximately 43 to 44
persons were employed in the unit represented by the Union A decertifica
tion petition was filed in Case 25-RD-449 which was dismissed
ROYAL INN OF SOUTH BEND 813
before August 16 it was told, and had a good-faith belief,
that a majority of the employees in the collective-bargain-
Ing unit no longer wished to be represented by the Union
The governing principle has long been recognized that
"a bargaining relationship once rightfully established must
be permitted to exist and function for a reasonable period
in which it can be given a fair chance to succeed "3 In a
recent review of the subject it has been observed "that
,only if the parties can rely on the continuing representa
tive status of the lawfully recognized union, at least for a
reasonable period of time, can bargaining negotiations suc
ceed and the policies of the Act be effectuated Reasoning
similar to that has been sustained in decisions holding
that an employer must bargain with a union for a reason-
able period without regard to its majority status where the
bargaining relationship arose as a result of a settlement
agreement "4 Thus,
To permit a respondent, after entering into a settle-
ment agreement by which he agrees to bargain with
his employees in an appropriate unit, to refuse to bar-
gain pursuant to the settlement agreement before the
lapse of a reasonable time, on the ground that a union
no longer represented a majority of the employees in
the unit, would greatly impair the efficacy of a settle-
ment agreement and greatly reduce the number of
cases in which the Board could properly enter into
settlement agreements 5
In this case the Company and the Union held only two
collective-bargaining sessions within a period of 2 months
following the execution of the settlement agreement A
third session was scheduled to be held 3 weeks later, but
was canceled by Respondent when it withdrew recognition
The Company thus severed its collective-bargaining rela-
tionship with the Union without allowing itself adequate
opportunity to reach an agreement with the Union, before
sufficient number of meetings had been held to have indi-
cated that further bargaining with the Union would have
been futile and also before the employees had had the ex
perience of representation for a long enough period to ap-
preciate and to ascertain whether union representation was
beneficial or otherwise Accordingly, I find that a reason-
able time had not elapsed between the effective date of the
settlement agreement and the date when Respondent re-
fused to engage in further bargaining with the Union and
withdrew recognition from the Union as the representative
of its employees 6 Therefore, I further find that the Compa-
ny has failed and has refused "to bargain collectively' with
the representative of its employees as required by the Act
and by such conduct has interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed
in Section 7 thereby violating Section 8(a)(1) and (5)
3 Franks Bros Company v N L R B 321 U S 702 705 (1944)
4 N L R B v Universal Gear Service Corp 394 F 2d 396 398 (C A 6
1968) and cases there cited
5 W B Johnston Grain Company and Johnson Seed Company v N L R B
365 F 2d 582 586 (C A 10 1966) See also Rogers Manufacturing Company
197 NLRB 1264 (1972) affd 486 F 2d 644 (C A 6 1973)
6 See N J MacDonald & Sons Inc 155 NLRB 67 (1965) affd 62 LRRM
2296 (CA 1 1966)
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce
V THE REMEDY
"[T]he unlawful refusal of an employer to bargain collec-
tively with his employees' chosen representative disrupts
the employees' morale, deters their organizational activi-
ties, and discourages their membership in unions " Franks
Bros Company v N L R B, supra at 704 Accordingly, hav-
ing found that the Company has engaged in such unfair
labor practices, I recommend that it cease and desist there-
from and that it take certain affirmative action designed to
effectuate the policies of the Act
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
1 Since August 16, 1975, by failing and refusing to bar-
gain collectively with the Union as the duly designated col-
lective-bargaining representative of the Company's em
ployees in the appropriate unit described below with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, the Company
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act
2 By the foregoing conduct, the Company has also in-
terfered with, restrained, and coerced its employees in their
exercise of the rights guaranteed in Section 7 of the Act
and has thereby engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act
3 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act I hereby issue the following rec-
ommended
ORDER?
Hotel Enterprises, Inc, d/b/a Royal Inn of South Bend,
South Bend, Indiana, its officers, agents, successors, and
assigns, shall
1 Cease and desist from
7 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and order and all objections thereto shall be
deemed waived for all purposes
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain collectively with Hotel & Res-
taurant Employees and Bartenders Local # 103, a/w Hotel
and Restaurant Employees and Bartenders International
Union, AFL-CIO, as the exclusive collective-bargaining
representative of the employees in the following appropri-
ate unit
All regular and regular part-time employees of the
Company employed at its South Bend, Indiana, facili-
ty, exclusive of office clerical employees, confidential
employees, manager, assistant manager, housekeeper,
guards and all supervisors as defined in the Act
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act
2 Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act
(a) Upon request, bargain collectively concerning rates
of pay, wages, hours of employment, and other terms and
conditions of employment with Hotel & Restaurant Em-
ployees and Bartenders Local #103, a/w Hotel and Res-
taurant Employees and Bartenders International Union,
AFL-CIO, as the exclusive representative of all the em-
ployees in the appropriate unit described above and if an
agreement is reached, embody it in a signed contract
(b) Post at its place of business in South Bend, Indiana,
copies of the attached notice marked "Appendix " 8 Copies
of said notice, on forms provided by the Regional Director
for Region 25, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material
(c) Notify the Regional Director for Region 25, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
8 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board