Days Hotel of Southfield

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 949 (N.L.R.B. 1992)

949
306 NLRB No. 185
DAYS HOTEL OF SOUTHFIELD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
No exceptions were filed to the judge’s finding that the Respond-
ent lawfully eliminated the dues-checkoff procedure.
In agreeing with the judge’s finding that the parties had not bar-
gained to impasse, we do not rely on the judge’s statement that the
Respondent’s failure to provide the Union with requested financial
information was ‘‘an additional reason establishing the absence of an
impasse.’’
2 We have modified the judge’s recommended Order to include a
make-whole remedy for the fringe benefit funds in accordance with
Merryweather Optical Co., 240 NLRB 1213 (1979).
Alumni Hotel Corporation d/b/a Days Hotel of
Southfield and Local No. 24, Hotel Employees
and Restaurant Employees International
Union, AFL–CIO. Cases 7–CA–30749–1–2 and
7–CA–31019–2–3
March 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 13, 1991, Administrative Law Judge
Michael O. Miller issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Alum-
ni Hotel Corporation d/b/a Days Hotel of Southfield,
Southfield, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
1. Insert the following as paragraph 2(d) and reletter
the subsequent paragraphs.
‘‘(d) Make whole all fringe benefit funds for any
losses they may have suffered as a result of the Re-
spondent’s unilateral modification of terms and condi-
tions of the collective-bargaining agreement.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to furnish the Union,
on request, with information that is relevant and nec-
essary to the performance of its duties as exclusive
collective-bargaining representative of our employees
in the following unit which is appropriate for the pur-
poses of collective bargaining:
All employees of Alumni Hotel Corporation, d/b/a
Days Hotel of Southfield, excluding maintenance
engineers, managerial employees, supervisors,
confidential employees, security personnel and
other guards, all as defined in the Act.
WE WILL NOT fail and refuse to bargain in good
faith with the Union which is the exclusive collective-
bargaining representative of our employees in the
above-described unit by unilaterally changing the terms
and conditions of employment of our employees with-
out complying with the requirements of Section 8(d)(3)
and without having first bargained to impasse with re-
spect to the terms and conditions of employment.
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 provide the Union with the information it
requested in its letters of May 22 and 29, 1990.
WE WILL restore, to the extent requested by the
Union, all terms and conditions of employment which
were in effect as of July 31, 1990, before the unilateral
changes were made, as embodied in the collective-bar-
gaining agreement.
WE WILL make whole any employees who may have
been detrimentally affected by the changes in terms
and conditions of employment, with interest on any
monetary losses the employees may have suffered.
WE WILL make whole all fringe benefit funds for
any losses they may have suffered as a result of our
unilateral modification of terms and conditions of the
collective-bargaining agreement.
WE WILL, on request, bargain with the Union as the
exclusive representative of our employees in the
above-described appropriate unit concerning terms and
conditions of employment and, if an understanding is
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1990 unless otherwise indicated.
2 Respondent denied the appropriateness of this unit but offered no
evidence or argument to support its contention. The General Counsel
offered some evidence establishing that all of these employees work
under common overall supervision and enjoy common terms and
conditions of employment. Moreover, the evidence establishes, as
noted infra, that Respondent adopted the existing agreement, includ-
ing the unit description, when it took over operation of the hotel.
I find that a unit of all employees, excluding maintenance engineers,
managerial employees, supervisors, confidential employees, security
personnel and other guards, all as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Sec. 9(b) of the Act. See Omni International Hotel, 283
NLRB 475 (1987).
reached, embody the understanding in a signed agree-
ment.
ALUMNI HOTEL CORPORATION D/B/A
DAYS HOTEL OF SOUTHFIELD
Joseph P. Canfield, Esq. and Gary Saltzgiver, Esq., for the
General Counsel.
Thomas P. Williams, Esq. (Jaffe, Snider, Raitt & Heuer), for
the Respondent.
John G. Adams, Esq. (Miller, Cohen, Martens & Ice), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was heard in Detroit, Michigan, on June 3, 4, and 5,
1991, based on charges filed July 9 and October 2, 1990,1
as amended, by Local No. 24, Hotel Employees and Res-
taurant Employees International Union, AFL–CIO (the
Union), and a complaint and amended complaint-issued on
August 29, October 11, and November 27, by the Regional
Director of for Region 7 of the National Labor Relations
Board (the Board).
The complaint, as amended, alleges that Alumni Hotel
Corporation d/b/a Days Hotel of Southfield (Days Hotel or
the Respondent) refused to bargain collectively with the
Union by failing to furnish the Union with requested infor-
mation and by unilaterally changing the terms and conditions
of employment of its employees, in violation of Section
8(a)(5) and (1) and Section 8(d) of the Act. Respondent’s
timely filed answer, as amended at hearing, denies the sub-
stantive allegations of the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Respondent, and the Charg-
ing Party, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Preliminary Conclusions of Law
Days Hotel, a corporation, is engaged in the operation of
a hotel and convention center, providing lodging, public res-
taurant, and other related services at its facility in Southfield,
Michigan. Based on a projection of its operations since De-
cember 1, 1989, it will annually derive gross revenues in ex-
cess of $500,000 and will annually purchase goods and mate-
rials valued in excess of $50,000 which will be shipped to
it directly from points located outside the State of Michigan.
The Respondent admits, and I find and conclude, that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Respondent admits and I find and conclude that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Prior to its acquisition by Respondent, the hotel property
had been operated as the Southfield Hilton. Its then owner,
Enco, recognized the Union and executed a collective-bar-
gaining agreement effective February 1, 1988, through July
31, 1990. Those covered by that recognition were the em-
ployees in the kitchen, bar, housekeeping, service, valet park-
ing, laundry, valet, health club, dining room, banquet, and
clerical departments, excluding managerial personnel, super-
visors, confidential employees, guards, and other security
personnel. Excluded, and represented by a separate labor or-
ganization, were the engineers.2
The agreement, as executed by Enco, provided:
102. Duration. This agreement and all schedules at-
tached hereto shall continue and remain in full force
and effect until July 31, 1990. . . . This agreement
shall continue in full force and effect from year to year
[after July 31, 1990] unless either party desires to nego-
tiate changes in this agreement and the schedules at-
tached thereto, and serves written notice on the other
party by certified mail not less that sixty (60) days prior
to July 31, 1990. [Emphasis in original.]
At some point, the parties agreed to change the expiration
date to January 31, 1990. In inserting that change to section
102, however, the parties neglected to change the first ref-
erence to July 31, 1990. Thus, that section continued to read
that the contract continued in effect until ‘‘July 31, 1990’’
while the final reference to the date, in the last sentence, was
changed to read that notice was required ‘‘not less than sixty
(60) days prior to January 31, 1990.’’ (R. Exh. 2.)
Shortly after the agreement was executed, the hotel
changed hands (due to financial difficulties); M.H.M. Inc. as-
sumed management on behalf of the owner, Prudential Insur-
ance. On February 26, 1988, M.H.M. and the Union executed
a memorandum of agreement, recognizing the Union and
agreeing to be bound by the existing agreement. The memo-
randum (G.C. Exh. 18), stated expressly that the contract re-
mained in effect until January 31, 1990, with the parties
agreeing to be bound by all of its terms and conditions. Sub-
sequent adendas, dated July 13 and August 8, 1989 (G.C.
Exhs. 18 and 19), reiterated the January 31, 1990 expiration
date and expressly continued all other terms and conditions
of the agreement without modification.
951DAYS HOTEL OF SOUTHFIELD
3 The letter also requested the names, classifications, wage rates,
and fringe benefits of the unit employees. The complaint alleges that
Respondent failed to furnish this information; the record, however,
is barren of any evidence regarding that alleged failure, the General
Counsel did not brief the point and I shall recommend that this alle-
gation, par. 11(a), be dismissed.
4 Fine denied that he received this explanation and asserted that he
had strenuously protested the alteration, claiming that he was being
‘‘ripped off’’ by a ‘‘criminal’’ backdating of the agreement. To the
extent that it makes any difference, I find Landers’ testimony to be
the more probative. Within the admitted limits of his memory,
Landers was a credible and candid witness. Fine was argumentative
and unresponsive as a witness, offered no explanation of how this
alteration adversely affected Respondent’s contractual obligations,
and did not purport to have raised his alleged objections with
Landers’ superiors, the Union’s signatories on that agreement.
5 The request is as confusing as it sounds. Presley’s explanation,
that some employees thought they had received pro rata vacation
payments and others thought they had been paid for a full week,
causing her to ask if some of the employees had been paid off by
M.H.M. while others had not, does little to clarify the issue.
B. Respondent’s Dealings with the Union
In late September 1989, Respondent acquired and began
operating the hotel property; the name was changed to Days
Hotel later in the year. At the time of acquisition, Martin
Fine, Respondent’s president, received copies of the collec-
tive-bargaining agreement, the February 26, 1988 memoranda
and the two 1989 addenda; he was aware that the employees
were represented by the Union and covered by a collective-
bargaining agreement. In a brief meeting with George
Landers, the Union’s then business representative, he indi-
cated that he would continue recognition. Thereafter, he
maintained the status quo, including making required pay-
ments on the employees’ behalf to the Union’s health and
welfare funds. Union dues were deducted pursuant to the
contract’s checkoff provision and submitted to the Union.
On November 22, 1989, the Union sent a letter to Re-
spondent, headed ‘‘Contract Expiration—1/31/90.’’ That let-
ter stated the Union’s intention to open and negotiate
changes in the agreement.3 At the same time, appropriate no-
tices were also sent to the Federal Mediation and concilation
Service (FMCS) and the Michigan Department of Labor
(DOL). Fine, consulting the copy of the agreement which
had been provided to him by Prudential, disputed the expira-
tion date. Relying on the first sentence of section 102, he ar-
gued that the contract did not expire until July 31, 1990.
Landers wanted a contract and Fine wanted to stabilize his
costs. They agreed to an extension of the existing agreement,
including the May 10, 1988 memorandum and the 1989 ad-
denda. Their agreement provided that the existing contract
remained:
in full force and effect until July 31, 1990, and the par-
ties further agree to be bound by all of the terms and
conditions of said collective bargaining agreement, a
copy of which is hereby attached; provided, however,
that nothing in this agreement or any previous agree-
ment or amendment shall create or provide for any
retroactivity of pay or economic improvements or
changes, and it is hereby expressly understood and
agreed that there shall be no retroactive economic im-
provement or changes in the collective bargaining
agreement, to any date earlier than August 1, 1990.
The agreement, effective according to its terms on Feb-
ruary 26, was signed on February 28 by Fine and two union
officers. Fine retained a copy. Subsequently, however, he re-
ceived another copy on which the effective date of February
26 had been lined out and a date of December 1, 1989, in-
serted. Additionally, it bore Landers’ signature as a witness.
According to Landers, this alteration had been made to con-
form the document to the period for which Respondent had
been making pension and health fund contributions; he
sought to avoid the appearance of any break in service which
would cause the funds to refuse to accept contributions. Fine,
he said, was given this explanation and raised no objections.4
According to Fine, it was understood that this agreement
would maintain the status quo until July 31; a new agree-
ment would be negotiated to be effective August 1. The con-
tract language requiring notice of termination 60 days prior
to January 31, 1990, he was told, was irrelevant because that
date was in the past. His testimony in this latter regard is
uncontradicted.
After January 1, Respondent continued to submit the re-
quired monthly reports concerning required pension, health
and welfare fund contributions. However, no payments into
the funds were made (until required by a court order) for any
period following January 1. Similarly, although Respondent
continued to deduct union dues from the employees’ pay,
after April 1, it failed to timely submit those dues to the
Union after April. Thus, although those dues are supposed to
be submitted by the 15th of the month in which they are col-
lected, Respondent did not submit April’s dues until the end
of May. The May and June dues were submitted in late July,
and the July, August, and September dues were not sub-
mitted until November 5. No dues were deducted or sub-
mitted after September.
On May 22, Vickey Presley, Landers’ replacement as busi-
ness agent with responsibility for Days Hotel, wrote Re-
spondent, requesting ‘‘a record of the previous company va-
cation payment pay off.’’ Her letter stated the Union’s under-
standing that M.H.M. had failed to prorate employee vaca-
tion payments and demanded ‘‘back payment to all employ-
ees who were paid vacation payment on a pro rated basis.’’5
The Union received no reply.
On May 29, the Union seeking to determine if two indi-
viduals were unit members, requested information on their
job classifications, rate of pay, and hours worked. Presley ex-
plained, in her testimony but not in the letter, that they were
referred to as managers or assistant managers, but, unlike
managers excluded from the unit, were sharing the employ-
ees’ tips. Respondent did not reply until August 2. At that
time, the Union was told that one individual had worked ir-
regular hours until May 7, when she resigned and moved
from the area. The second, the Union was told, had resigned
as a union member and become a full-time management em-
ployee; he did not want the Union to obtain any information
regarding his status.
In mid-May, the Union held a meeting to discuss the expi-
ration of Respondent’s contract. It was decided that they
would wait to see if Respondent gave notice of contract ter-
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mination, pursuant to section 102, quoted above. To that
point in time, no such notice had been received.
On May 24, according to Fine, he sent the following letter,
by first-class mail, to the Union:
As we previously advised you, the undersigned here-
by formally advises you that the present Union contract
will expire July 31, 1990, and at that time, Alumni
Hotel Corporation will enter into negotiations for a new
contract.
The present contract will not be continued. As you
are well aware, the Hotel is in a serious net operating
loss position and must renegotiate a labor contract with
specific economic relief for the employer.
Please be guided accordingly.
This letter, Fine claimed, was not intended as an official
60-day notice pursuant to the agreement; that agreement, he
testified (contrary to the assertion in this letter), had expired
January 31. It was he said, just ‘‘a letter that I sent.’’ He
claimed that he dictated that letter to his secretary, saw her
place it in an envelope, and walked her to the mailbox where
he observed her deposit it in the U.S. mails. He further
claimed that, at a dinner meeting held in September, Florence
Farr, the Union’s secretary-treasurer, acknowledged receipt
of that letter and told him that it was his tough luck that he
had send it certified, as required by section 102 of the agree-
ment. Vickey Presley, to whom any such letter would nor-
mally have been directed, never saw the letter and heard no
such remark at the meeting. Neither did Terrance Dorris, a
union steward. Neither Farr nor Fine’s secretary testified.
Respondent sent no other notice of termination. No 8(d)
notices were sent to (FMCS) or DOL.
On July 31, Fine wrote the Union, stating:
This letter will confirm our previous discussions and
agreements with respect to the negotiation of a new col-
lective bargaining agreement for the period com-
mencing August 1, 1990. . . .
As you well know and have been previously advised,
the current collective bargaining agreement, as extended
pursuant to the agreement effective February 26, 1990,
expires July 31, 1990.
He suggested 7 days in August for meetings and asked for
a prompt reply and a union proposal which would take the
hotel’s economic situation into account. He made no pro-
posals.
Farr replied on August 8. She stated that, in assuming the
current agreement, Respondent had agreed that it would con-
tinue the contract ‘‘in full force and effect unless either party
‘serves written notice on the party by certified mail not less
than sixty (60) days prior to July 31, 1990.’ No such notice
was served.’’ Therefore, she wrote, the current collective-bar-
gaining agreement continues in full force and effect and ne-
gotiation dates were unnecessary.
Fine wrote again on August 23, disputing Farr’s assertions
and accusing her of misquoting the contract. He argued that
in the February agreement the parties had specifically agreed
‘‘that the collective bargaining agreement would remain in
full force and effect only until July 31, 1990, and that it
would expire on that date.’’ (Emphasis in original.) The con-
tract’s automatic renewal clause, he asserted, was no longer
of any force or effect.
In this letter, Fine again requested dates for negotiations.
Unless the Union attended such a meeting, he stated, ‘‘we
will have to consider all other legal alternatives.’’ One alter-
native, he asserted, ‘‘is for the Alumni Hotel Corporation to
unilaterally implement new terms and conditions of employ-
ment which we determine to be fair and consistent with the
current situation at the Alumni Hotel Corporation . . . if you
refuse to come to the table and initiate negotiations, we will
have no acceptable alternative.’’ He gave the Union a Sep-
tember 10 deadline. His letters contained no proposals or
specifics regarding what he deemed necessary.
In quoting language requiring a 60-day notice prior to July
31, Farr had referred to the wrong agreement. As noted
above, the M.H.M. agreement and addenda assumed by Re-
spondent terminated on January 31 and required a termi-
nation notice to be submitted (as it was by the Union) 60
days prior thereto. The February 26 agreement extended that
agreement to July 31 but made no reference to any new noti-
fication date. While Fine placed no quotation marks around
his references to the addenda, he overstated that agreement.
It stated that the February 1, 1988 contract and its addenda
would ‘‘remain in full force and effect until July 31, 1990
and the parties agree to be bound by all the terms and condi-
tions of said collective bargaining agreement.’’ There was no
express reference to ‘‘only until July 31’’ or to its ‘‘expira-
tion’’ on that date.
The correspondence continued. On September 6, Farr de-
nied misquoting the contract and disputed his interpretation
of their agreement. Section 102, she wrote, ‘‘was in force,
like all of the other terms . . . at least until July 31, 1990,
at which time the agreement renewed by its own terms be-
cause of the absence of the notice required by Section 102.’’
She warned against any unilateral implementation of new
terms and conditions of employment.
Finally, in September, Fine and Farr spoke with one an-
other, apparently at a dinner meeting. According to Fine’s
uncontradicted testimony, she told him that he was stuck
with the contract because he had failed to send the May 24
letter by certified mail. He told her that this was a ridiculous
and self-destructive position. Unless there were negotiations,
the hotel would close with a loss of all jobs, he said. Farr
gave him the name of the Union’s attorney, Bruce Miller,
and suggested that they talk.
Within the next few days, Fine and Miller met at a local
restaurant. They discussed the hotel’s economic problems
with Miller indicating that he was well aware that it was
having serious problems. He told Fine that, in his opinion,
the Union did not have any legal obligation to negotiate a
new agreement; Fine, of course, disagreed. Miller told fine
that their disagreement on this point was irrelevant, he had
been instructed to do whatever was required, within a range
of reasonableness, to keep Days Hotel in business. They
agreed to put aside their differing legal opinions concerning
the status of the agreement. Miller asked Fine to send him
the Employer’s proposals. Even if they were not required to
do so, the Union would listen and discuss those proposals
with Fine, Miller said. He warned Fine against taking any
unilateral action.
The recollections of these two attorneys, related above,
while somewhat colored by the interests of their respective
953DAYS HOTEL OF SOUTHFIELD
6 The complaint, as amended, did not allege Respondent’s refusal
to furnish information (other than that requested in May) as violative
of the Act.
7 Fine recalled only one meeting, on November 1, and asserted that
Miller ushered him out, ending it after only a brief discussion. Mil-
ler’s testimony was corroborated by that of Presley and, for the rea-
sons previously stated, I credit Miller.
8 The complaint also alleges a June 13 repetition of the earlier re-
quests. No evidence of such a renewed request was proffered and
I shall recommend dismissal of this allegation, par. 11(d).
parties, are not materially different. They do disagree with
respect to whether Miller insisted on seeing some financial
information. Miller claims that he told Fine that he had no
doubt that the hotel was losing money ‘‘but had to see the
numbers’’ to see how the money was being spent. Fine, he
said, agreed to provide some information. Fine denies both
the request and his agreement to provide information. Miller,
he said, claimed to know more of the hotel’s woes than did
he and did not want to waste the Union’s money on account-
ants. I find Miller’s recollections more accurate and more
probable.6
On October 17, Fine sent Miller his proposals, a marked-
up copy of the agreement containing extensive changes, both
economic and noneconomic in nature. (R. Exh. 11.) Included
was a proposal to eliminate checkoff. On that same date, a
notice was posted for, or given to, all the employees. That
notice (G.C. Exh. 11) stated that the contract had expired on
July 31 and:
[a]s a result, all benefits previously provided . . . were
eliminated as of July 31. The benefits which are no
longer in effect, unfortunately, include health and wel-
fare benefits, salary increases and all other benefits.
We have attempted to meet with the union to negotiate
a new contract. The union, so far, has refused to meet
with us.
The Union was not sent a copy of this notice by the Em-
ployer; an employee faxed Presley a copy. Similarly, Miller
received a copy, but not from the Employer.
Among the benefits eliminated effective August 1 was
checkoff. Vacation pay, contractually provided pay for an
employee’s birthday, personal leave (except on a case-by-
case basis), contractual overtime in excess of Federal stand-
ards, and all health, welfare, and pension contributions were
all terminated between August and October. Similarly, the
Employer considered the grievance-and-arbitration provisions
to have expired and rejected grievances on that basis. When
they asked, employees were told that there was no contract.
According to Fine, sometime in September or October he
ceased to follow what he considered the extravagant and
unaffordable provisions of the contract but not its basic pro-
visions; he reverted to the provisions of Federal law with re-
spect to overtime.
Miller replied to Fine’s proposed changes on October 29
(G.C. Exh. 13). In that letter, he protested the proposal to
eliminate checkoff as being unrelated to the hotel’s economic
problems; he also protested the unilateral changes and the
October 17 announcement, insisted on restoration of all uni-
laterally terminated benefits, referred to Fine’s offer to open
the hotel’s books to the Union and demanded information
identifying the employees who suffered losses of the various
benefits. He also promised to review the Employer’s pro-
posal while, at the same time, disclaiming any waiver of the
Union’s position regarding contract renewal.
Miller and Fine met at Miller’s office on November 1. Ac-
cording to Miller’s credible recollection, they went through
the hotel’s proposals, attempting to determine priorities. Mil-
ler repeated his requests for financial statements, indicating
that he wanted to determine the cost of the various proposals
and the Employer’s break-even point; he told Fine that he
could not respond without this information. Fine, he be-
lieved, promised to provide financial statements. Miller also
repeated his objection to the proposed elimination of check-
off and asked Fine to restore it as a sign of good faith.
On November 5, the employees received another letter
(G.C. Exh. 15) informing them that the contract which had
provided them with health and welfare benefits had expired
on July 31. However, some employees, they were told, still
had deductions taken from their pay for these benefits after
that date due to an error in data processing. They received
refunds.
At Fine’s request, he and Miller met again on November
14. Due to Miller’s schedule, it was expected to be a short
meeting. During this meeting, Miller suggested that the Em-
ployer consider creative alternatives for the employees’ ben-
efit, including the possible institution of quality of work life
(QWL) programs, employee stock option plans (ESOP), and
a sliding scale of repayments. He also asked that the termi-
nated benefits be restored. The discussion did not proceed
beyond general principles and after about an hour, Miller
brought the meeting to an end.7
In correspondence and conversations with Miller, Fine has
sought additional meetings. Miller has referred him to the
Union’s business representative but nothing has been sched-
uled. On December 21, Respondent served 8(d) contract ter-
mination notices upon FMCS and the Michigan DOL, assert-
ing, inter alia, that the agreement had expired on July 31,
1990.
C. Analysis
1. Failure to furnish information—pre-July 31, 1990
The complaint alleges that by failing to respond to two in-
formation requests, Respondent violated Section 8(a)(5).8
The first was Presley’s May 22 request for information con-
cerning vacation benefits which were supposed to be paid by
Respondent’s predecessor, M.H.M. Respondent never replied
to this request, either to say that it had none of the requested
data or that it did not understand the request. On brief, Re-
spondent asserts that this request sought information which
the hotel did not have. Therefore, Respondent argues, its fail-
ure to respond could not breach its statutory bargaining obli-
gation.
The second involves Presley’s May 29 request for infor-
mation concerning the classifications, rates of pay, and hours
worked of two employees. Respondent did not reply until
August 2, 2 months later. Its reply said that one employee
had quit on May 7 and that the other had become a full-time
manager and did not want information regarding his status
revealed to the Union.
It is hornbook law that the bargaining obligation imposes
upon an employer the duty to furnish the union with infor-
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The agreement called for service by certified mail. Fine, admit-
tedly, did not utilize that level of mail service. However, as I have
found, the letter was timely mailed and received and its receipt was
acknowledged by the Union’s president. The failure to strictly com-
ply with this aspect of the contract’s notice provisions is therefore
immaterial.
mation needed for the proper performance of its duties, in-
cluding the processing of grievances. See NLRB v. Acme In-
dustrial Co., 385 U.S. 433 (1967). As the Court there noted,
a discovery-type standard applies and information must be
furnished if there is a probability that it will be relevant. Em-
ployee wage information, such as that requested by Presley,
is presumptively relevant. Marshalltown Trowel Co., 293
NLRB 693 (1989).
It is possible that Respondent did not have any informa-
tion responsive to Presley’s first request. On the other hand,
where Respondent had taken over M.H.M.’s operation, as-
suming M.H.M.’s bargaining obligation and agreement, uti-
lizing the same employees to perform the same work, it was
reasonable for the Union to assume that it would have infor-
mation concering the benefits which M.H.M. had paid out in
the recent past. Respondent was obligated to respond, either
providing the requested information if in its possession or in-
forming the Union that the information was unavailable to it.
See Blue Diamond Co., 295 NLRB 1007 (1989).
Similarly, the information sought in the Union’s May 29
request was presumptively relevant. Respondent’s reply was
both dilatory and unresponsive. To say that one individual
worked irregular hours up to a given date (subsequent to the
demand for information) and then quit and that the other had
become a full-time manager who did not want wage informa-
tion disclosed does not give the Union any of the information
to which it was entitled concerning the job classifications,
rates of pay, and hours worked before the termination of one
and the promotion of the other.
Accordingly, I find that by failing to properly and timely
respond to the Union’s May 22 and 29 demands for informa-
tion, the Respondent has failed to bargain in good faith in
violation of Section 8(a)(5) and (1) of the Act. Bi-County
Beverage Assn., 291 NLRB 466 (1988).
2. Unilateral action
At the hearing, Respondent asserted, for the first time, that
there had never been a meeting of the minds between Fine
and Landers with respect to the terms of the February 26 ex-
tension agreement. Therefore, it is argued, no collective-bar-
gaining agreement had been entered into, notwithstanding the
mutual execution of that agreement. In particular, Respond-
ent’s counsel argues that although the Union believed that
that agreement incorporated the 60-day notice and automatic
renewal provisions of the agreement between Respondent’s
predecessor and Respondent, Fine’s understanding was of an
agreement to negotiate a new contract to be effective August
1, ‘‘no matter what,’’ without any further notice being re-
quired.
Respondent’s argument does not withstand scrutiny. Fine
verbally and by compliance with the contract terms, adopted
the agreement of Respondent’s predecessor. The term of that
agreement, as made clear by three addenda, concluded on
January 31, after the Union served timely notice of termi-
nation pursuant to its express language. Thereafter, the Union
and Respondent executed a unambiguous extension of all the
terms and conditions of the prior agreement, through July 31,
with express language precluding retroactivity to satisfy
Fine’s requirement that he know what his labor costs would
be through that date.
Among the provisions adopted by this extension agreement
was the provision for automatic renewal absent timely notice.
Through what must be deemed a ‘‘quirk in draftsmanship,’’
the 1988 to 1990 agreement (as amended) had specified that
timely notice was notice filed ‘‘not less than 60 days prior
to January 31, 1990,’’ rather than saying, in more frequently
used terms, ‘‘60 days prior to the date of expiration.’’ How-
ever, the clear import and legal effect of the notice provision
was that the parties intended that notice, consistent with the
provisions of Section 8(d)(1) of the Act, would be given 60
days prior to whatever the expiration date might be. Farm
Crest Bakeries, 241 NLRB 1191, 1197 (1979).
Fine had purportedly questioned how he could comply
with the provision of the extended agreement requiring a ter-
mination notice to be served prior to January 31 and was told
by Landers, ‘‘Don’t worry about this because that date is
gone and this is now February so its irrelevant.’’ The state-
ment attributed to Landers, at most, ambiguous regarding
whether a 60-day notice would be required prior to July 31
in order to forestall automatic renewal; Fine, an attorney, was
not privileged to rely on it to either vary the express terms
of his agreement or to negate statutory notice provisions.
NDK Corp., 278 NLRB 1035, 1040–1041 (1986); Gatliff
Coal Co. v. Cox, 152 F.2d 52 (6th Cir. 1945). Landers’ as-
surance that they would negotiate a new agreement for the
post-August 1 period, is not inconsistent with this conclu-
sion. Pursuant to the February extension agreement, the par-
ties were free to insist on negotiating a new agreement but
had to provide timely notice if they wished to do so. They
were similarly free to seek renewal of the existing terms by
withholding notice.
Moreover, I am satisfied that Fine was aware of the con-
tractual notice requirement and endeavored (successfully, I
find) to comply with it. Thus, his May 24 letter was more
than an insignificant but fortuitously timed missive, as he
claimed. It was, by its own terms, a ‘‘formal’’ advisory of
contract termination. That it was mailed on May 24, a mere
7 days before the 60-day cutoff, establishes that Fine was
aware of, and attempted to comply with, the notice provi-
sion.9
Accordingly, I conclude that Respondent was party to a
collective-bargaining agreement with the Union through July
31; that agreement provided for automatic renewal unless no-
tice was given 60 days prior to that date to terminate or
modify that agreement. I further find that Respondent timely
gave the requisite notice and the contract was thereby termi-
nated.
Those conclusions, however, do not dispose of this matter.
Even before July 31, Respondent began to ignore its contrac-
tual obligations. Dues, collected from the employees, were
submitted only dilatorily to the Union, notwithstanding that
the contract required withholding from the first paycheck of
each month and transmission to the Union no later than the
10th of the month. I find that this unilaterally adopted vari-
ation from the contractual requirements violated Section
8(a)(5). At some point, Respondent also stopped submitted
contractually required contributions to the pension, health
and welfare funds. This act became the subject of a suit in
955DAYS HOTEL OF SOUTHFIELD
10 Even if it could be said that the parties had been at impasse
over the question of the automatic renewal, the Union’s agreement
to consider Respondent’s proposals, and Respondent’s submission of
them, would have broken that impasse. Union Terminal Warehouse,
286 NLRB 851, 858 (1987); Marriott In-Flite Services, 258 NLRB
755 (1983).
Federal court and resulted in an order that Respondent make
the required contributions, at least through July 31. In light
of that order and my conclusions with respect to the post-
July 31 unilateral changes, no further finding with respect to
the pre-August failure is warranted here.
Immediately after July 31, Respondent began to eliminate
the benefits employees had received under the contract. This
may do only when specific conditions have been satisfied.
As the Supreme Court recently reiterated:
Sections 8(a)(5) and 8(d) of the NLRA . . . require
an employer to bargain ‘‘in good faith with respect
wages, hours, and other terms and conditions of em-
ployment.’’ The Board has taken the position that it is
difficult to bargain if, during negotiations, an employer
is free to alter the very terms and conditions that are
the subject of those negotiations. The Board has deter-
mined with our acceptance, that an employer commits
an unfair labor practice if, without bargaining to im-
passe, it effects a unilateral change of an existing term
or condition of employment. See NLRB v. Katz, 369
U.S. 736 (1962). In Katz, the union was newly certified
and the parties had yet to reach an initial agreement.
The Katz doctrine has been extended as well to cases
where, as here, an existing agreement has expired and
negotiations a new one have yet to be completed. See,
e.g., Laborers Health & Welfare Trust Fund v. Ad-
vanced Lightweight Concrete Co., 484 U.S. 544 fn. 6
(1988).
Litton Business Systems v. NLRB, 111 S.Ct. 2215 (1991).
The questions remaining, then, are whether the changes
were made unilaterally and prior to the existence of an im-
passe? Both questions, I must conclude, must be answered in
the affirmative.
In Taft Broadcasting Co., 163 NLRB 475, 479 (1967),
affd. 395 F.2d 622 (D.C. Cir. 1968), the Board stated:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties in negotiations, the length of negotiations, the
importance of the issue or issues as to which there is
disagreement, and the contemporaneous understanding
of the parties as to the state of negotiations are all rel-
evant factors to be considered in deciding whether an
impasse in bargaining existed.
Respondent’s letters and notices to its employees, dated
October 17 and November 5, establish that the contract bene-
fits, including ‘‘health and welfare benefits, salary increases
and all other benefits provided pursuant to the expired con-
tract . . . . were eliminated as of July 3, 1990.’’ Some mis-
cellaneous fringe benefits, such as premium overtime for
sixth and seventh consecutive workdays, birthday and anni-
versary pay, and personal leave, were eliminated then or at
various unspecified time between August 1 and the end of
October. At the latest, according to Fine’s testimony, con-
tractual wage rates were terminated ‘‘around October, No-
vember 1990.’’
These benefits, like most mandatory subjects of bar-
gaining, are within the Katz prohibition on unilateral
changes. See Litton, supra at section II; Cauthorne Trucking,
256 NLRB 721 (1981). However, in light of my conclusion
regarding the timely notice of termination, it is unnecessary
to consider when Respondent ceased dues deductions as
dues-checkoff obligations are coextensive with the term of
the agreement and the elimination of this contract term after
expiration of the agreement does not constitute violative uni-
lateral action. Litton, supra; Indiana & Michigan Electric
Co., 284 NLRB 53, 55 (1987).
At no time during this period could it be said that the par-
ties were at impasse. Thus, through August and into Sep-
tember, the parties were disputing whether the agreement had
automatically renewed itself. Negotiations had not even
begun. By the end of September, the Union agreed to meet
with Respondent, notwithstanding its colorable argument re-
garding renewal. Initial meetings were held between Fine and
both Farr and Miller during that month. Fine, representing
the party seeking substantial changes in the agreement, was
invited to submit his proposals. Respondent first submitted
those proposals to the Union on the very day that it an-
nounced the unilateral elimination of fringe benefits.10 The
parties were only in the preliminary stage of negotiations;
there was no evidence of deadlock with which impasse is
synonymous. Providence Medical Center, 243 NLRB 714
(1979). Having just begun, there could not have existed the
requisite exhaustion of the collective-bargaining process
which characterizes impasse. Excavation-Construction, 248
NLRB 649, 650 (1980).
There exists an additional reason establishing the absence
of impasse. I have credited the testimony of Miller regarding
his unsatisfied requests for financial data sufficient for the
Union to bargain intelligently over proposals to substantially
reduce benefits. Until Respondent satisfied this valid request,
no impasse such as would justify unilateral action could be
reached. Accurate Die Casting Co., 292 NLRB 284, 307
(1989).
Even if it could be said that Respondent had been dili-
gently seeking bargaining in the face of union avoidance or
delay, Respondent’s unilateral action was not privileged.
Under such circumstances, an employer may implement its
proposals without first bargaining to impasse, but only if the
changes implemented are consistent with the employer’s pre-
vious proposal. Express notice of the specific changes is re-
quired to put the union on notice of what it may lose if it
fails to bargain. Tampa Sheet Metal Co., 288 NLRB 322,
326 (1988), and cases cited therein.
Fine’s threat, in the letter of August 23, to implement such
new terms and conditions of employment as Respondent de-
termined to be consistent with the economic conditions, does
not rise to that level of specificity. In D.C Liquor Whole-
salers, 292 NLRB 1234 (1989), the employer allegedly an-
nounced that they would be seeking substantial wage cuts.
The Board held that even if such an announcement had been
made, the Union, without knowing what ‘‘substantial’’ might
mean, ‘‘was not in a position to react intelligently or prepare
itself’’ before Respondent declared impasse. Moreover, Re-
spondent’s threat can hardly be deemed a bona fide proposal
on which it expected the Union to negotiate.
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The Board cases cited by Respondent for the proposition that a
proposal for unilateral discretion is not inconsistent with good-faith
bargaining hold just the opposite. For example, in Alba-Waldensian,
Inc., 167 NLRB 695, 696 (1967), enfd. 404 F.2d 1370 (4th Cir.
1968), the Board stated: ‘‘Respondent[’s] insistence upon retaining
the right unilaterally to control during the contract term an item as
vital to an agreement as wages appears to us, moreover, the clearest
manifestation of bad faith.’’ See A-1 King Size Sandwiches, 265
NLRB 850 (1982), enfd. 732 F.2d 872 (11th Cir. 1964).
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
Further negating Respondent’s argument is the undisputed
evidence that it had begun implementing changes prior to ut-
tering the August 23 threat and continued to do so after the
Union had satisfied the condition for its removal by meeting
with Respondent for the purpose of collective bargaining.11
Finally, and conclusively, Respondent’s failure to comply
with its obligations under Section 8(d)(3) mandates a finding
of violation based on its unilateral implementation of new
terms and conditions of employment after July 31. In
Weathercraft Co. of Topeka, 276 NLRB 452, 453 (1985),
enfd. 832 F.2d 1229 (10th Cir. 1987), the employer had, as
Respondent did here, served a timely notice of termination
on the union. However, that employer, like the Respondent,
had failed to send the notices required under Section 8(d)(3)
to FMCS and the appropriate state agency. The Board adopt-
ed the following language by Administrative Law Judge
James L. Rose:
Section 8(d) is unequivocal. It provides that the duty
to bargain includes serving written notice upon the
other party to a collective-bargaining agreement of
one’s desire to terminate or modify it, with notice also
to the Federal Mediation and Conciliation Service and
the appropriate state agency.
Board authority is also unequivocal. Failure of a
party desiring to terminate or modify a collective-bar-
gaining agreement to give appropriate notice under Sec-
tion 8(d)(3) precludes it from altering terms or condi-
tions of the collective-bargaining agreement . . . . This
proscription exists notwithstanding that the expiration
date of the agreement has past. See Meatcutters Local
576 (Kansas City Chip Steak Co.), 140 NLRB 876
(1963); United Marine Local 333 (General Marine
Transportation Corp.), 228 NLRB 1107 (1977).
Respondent unilaterally altered the existing terms and con-
ditions of employment after contract expiration, without first
having proposed those new terms and conditions of employ-
ment to the Union, without bargaining to impasse thereon,
and without having satisfied the notice requirements of Sec-
tion 8(d)(3). Based on these findings, I must conclude that
it has failed and refused to bargain in good faith with the
Union, in violation of Section 8(a)(5).
CONCLUSIONS OF LAW
1. The Union is the exclusive collective-bargaining rep-
resentative of the employees in the following collective-bar-
gaining unit which is a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act:
All employees of Alumni Hotel Corporation d/b/a Days
Hotel of Southfield, excluding maintenance engineers,
managerial employees, supervisors, confidential em-
ployees, security personnel and other guards, all as de-
fined in the Act.
2. By failing to provide the Union with requested informa-
tion which is relevant and necessary to the performance of
its duties as exclusive collective-bargaining representative of
the employees in the above-described unit and by unilaterally
changing the terms and conditions of employment of its em-
ployees without complying with the requirements of Section
8(d)(3) and without having first bargained to impasse with
respect to the terms and conditions of employment which it
implemented, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sections
8(a)(5) and (1) and 8(d) and Section 2(6) and (7) the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent unlawfully and unilaterally
changed the terms and conditions of employment of its em-
ployees in an appropriate unit, I find that it must be ordered
to restore the terms and conditions of employment which
were in effect as of July 31, 1990, and make all employees
whole for any loss of earnings, pension credits and other
benefits they may have suffered as a result of the unlawful
changes, including reimbursement for any medical, dental, or
other expenses resulting from Respondent’s unlawful failure
to make required contributions. Kraft Plumbing & Heating,
252 NLRB 891 (1980). Backpay is to be computed as pre-
scribed in Ogle Protection Service, 183 NLRB 682 (1970),
with interest as set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Alumni Hotel Corporation d/b/a Days
Hotel of Southfield, Southfield, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith by failing
to provide the Union with requested information which is
relevant and necessary to the performance of its duties as ex-
clusive collective-bargaining representative of the employees
in the appropriate collective-bargaining unit.
(b) Failing and refusing to bargain in good faith with the
Union which is the exclusive collective-bargaining represent-
ative of its employees in the appropriate collective-bar-
gaining unit by unilaterally changing the terms and condi-
tions of employment of its employees without complying
with the requirements of Section 8(d)(3) and without having
first bargained to impasse with respect to the terms and con-
ditions of employment which it implemented.
957DAYS HOTEL OF SOUTHFIELD
13 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
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.’’
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Provide the Union with the information which it re-
quested in its letters of May 22 and 29, 1990.
(b) Restore all terms and conditions of employment to the
status quo existing as of July 31, 1990, before the unilateral
changes were made, to the extent that such changes were
detrimental to the employees.
(c) Make whole any employees who may have been det-
rimentally affected by the changes in terms and conditions of
employment, with interest on any monetary losses the em-
ployees may have suffered, in the manner set forth in the
remedy section of this decision.
(d) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
All employees of Alumni Hotel Corporation d/b/a Days
Hotel of Southfield excluding maintenance engineers,
managerial employees, supervisors, confidential em-
ployees, security personnel and other guards, all as de-
fined in the Act.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its hotel in Southfield, Michigan, copies of the
attached notice marked ‘‘Appendix.’’13 Copies of the notice,
on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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 notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found herein.