NOTICE: This
opinion is subject to formal revision before publication in the Board volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Racetrack Food Services, Inc. and Casino Food Services, Inc., Single Employer and UNITE HERE, Local 274. Case 4–CA–35158
December 31, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On July 25, 2008, Administrative Law Judge Wallace H. Nations issued the attached decision. Respondent Racetrack Food Services, Inc. (Racetrack) filed exceptions and a supporting brief, the General Counsel and Charging Party each filed an answering brief, Racetrack filed a reply brief, and the General Counsel filed a cross-exception.
The National Labor Relations Board1 has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order.3
order
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, Racetrack
Food Services, Inc.,
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal)
National
Labor Relations Board
Randy
M. Girer, Esq., for
the General Counsel.
Henry
E. Van Blunk, Esq., of
Arlus
J. Stephens, Esq., of
DECISION
Statement of the Case
Wallace
H. Nations, Administrative Law
Judge. This case was tried in
At the hearing, the
General Counsel and Respondent entered into a partial settlement of the issues
in this case. The Charging Party objected to this partial settlement. The parties
were given a specified period of time to file briefs in support of their respective
positions. After receiving and considering these briefs, I issued my Order approving
partial settlement and closing the record in this case. My reasons for
approving the partial settlement are set forth in the Order and are
incorporated herein by reference.
Following approval
of the partial settlement, the following complaint allegations remain for determination:
1. Whether
Respondent Racetrack violated the Act by failing and refusing to provide the
a. A list of the names, addresses and telephone numbers of CFS employees.
b. Identity of all
managers, supervisors, forepersons or other supervisory persons with authority
to hire, fire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward or discipline employees, or responsibly direct employees, or to adjust
their grievances, or effectively recommend such action, with respect to
employees in racing operations and employees in slot gaming operations,
respectively, including the individuals’ titles and dates of employment.
c. The identity of all individuals actively involved in day-to-day management of racing operations and slot gaming operations, including their dates of employment and each of the duties.
2. Whether Respondent Racetrack violated the Act
by closing the fifth floor dining room and bar (Turfside Terrace Restaurant and
Bar) on Wednesday and Thursday nights, without giving the
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the Respondent, Charging Party, and the General
Counsel, I make the following
Findings of Fact
i. jurisdiction
Respondents
Racetrack Food Services, Inc. and Casino Food Services, Inc., corporations,
have admitted the jurisdictional allegations of the complaint. They provide
food and beverage services at Philadelphia Park Racetrack in
ii. alleged unfair labor practices
A. Background
Commencing on May
10, 2000, RFS began providing food and beverage concessions at the Philadelphia
Park Racetrack facility. At the same time, RFS entered into a collective bargaining
agreement with the
All full-time and regular part-time bartenders, bus persons, cashier-counterpersons, cooks, utility persons, dishwashers, waitstaff and commissary helpers, but excluding hostesses, captains, maitre’d’s, supervisory chefs, supervisory employees, managerial or foreman employees, security personnel, watchmen, professional employees, office or secretarial employees, guards and supervisors as defined in the Act, and employees currently represented by other labor organizations.
Prior to June 2006,
RFS operated concession areas open to the public on the first floor, third
floor, fifth floor and an outside bar and patio area at the Philadelphia
Racetrack facility. Additionally, RFS operated out of kitchens on the first and
third floors. In 2006, the Pennsylvania Gaming Board issued a license to
Greenwood Gaming and Entertainment, Inc., to operate slot machines at
On January 9, 2007,
the
On February 7, the
B. The Relevant Facts Relating to the Issues
At the hearing, the parties entered into a stipulation of facts and introduced into evidence General Counsel’s exhibits 1 through 25. The parties stipulate as follows:
1. Philadelphia
Park Casino and Racetrack (“
(a) The racetrack dates back to 1974 (when it was known as
(b) Greenwood Racing, Inc. (“
(c) Since at least the 1980s,
(d) The Commission issued a license to Keystone Turf Club,
Inc. and a license to Bensalem Racing Association, Inc. (“Keystone/Bensalem”),
both subsidiaries of
2. In 2005,
Greenwood Gaming and Entertainment, Inc. (“GG&E”), a subsidiary of Greenwood
G&E Holding, Inc., which is a subsidiary of
(a) Around mid-December 2006, slot machines became
operational at
(b) There are approximately 2,700 slot machines in
operation at
3. The facility at
(a) Prior to June 2006, the six-story building housed food and beverage concessions, pari-mutuel betting and other services for racetrack patrons.
(b) Prior to June 2006, the food and beverage concession
operations at
i. 1st Floor—bar called the “Finish Line,” dining room; a concession stand selling hot dogs and burgers; and a second concession stand selling hotdogs and cans of beer on the weekends.
ii. 3rd Floor—restaurant and bar called the “Sports View Bar & Grill,” and a concession stand selling hot dogs and burgers.
iii. 5th Floor—bar in the dining room, and dining room food service.
iv. Outside—bar and patio area, called “My Juliette,” located next to the racetrack and open during the summer
v. Kitchen—Kitchens were located on the 1st and 3rd floors.
4. In April 2000,
Keystone/Bensalem contracted with Racetrack Food Services, Inc. (RFS), a
subsidiary of
(a) From May 10, 2000 through November 2006, all
i. Prior to May 10,
2000 all food and beverage concessions were provided by companies not
affiliated with
(b) As of December 2006, RFS employed about 45-50 employees.
5. Since May 10,
2000, UNITE HERE Local 274 (
(a) From 1982 to May 10, 2000, the Union represented the
employees of Filly Foodservice Company, Inc. and its predecessor companies (not
affiliated with
(b) The most recent contract between RFS and the
(c) RFS and the
(d) RFS and the
6. During 2005 and
2006,
i. 1st Floor—Casino operation: the “Poker Bar,” and a concession stand called the “Grab & Go.”
ii. 2nd Floor—Business
offices.
iii. 3rd Floor—Casino operation: Steak house, buffet, the “Circle Bar,” and a kitchen.
iv. 4th Floor—Kitchen, providing food preparation and storage for Casino operations and for Racetrack operations. The renovations created separate workstations for Casino operations and for Racetrack operations. The main storage area, containing foodstuffs including drygoods and frozen foods, was used for both Casino and Racetrack operations. Cooking utensils were used commonly by both Casino and Racetrack operations.
v. 5th Floor—Racetrack operation;
Turfside Terrace Restaurant/Bar (with 400 person dining room), the Finish Line
Bar, one concession stand.
7. Since December 2006, the casino is open to the public 24 hours a day, 365 days a year.
8. There is live horse racing on Saturdays, Sundays, Mondays and Tuesdays, with occasional Wednesdays and Fridays.
(a) Starting in June 2006, the 5th floor racetrack Turfside Terrace Restaurant/Bar was open to the public Wednesday, Thursday, Friday and Saturday nights, and 7 days a week during the daytime. The Turfside Terrace Restaurant/Bar opened at 11 a.m. every day. On Wednesday, Thursday, Friday and Saturday, the Turfside Terrace Restaurant/Bar closed at around 9:30 or 10 p.m.
(b) Starting in June 2006, the Finish Line Bar was open to the public 7 days and 7 nights a week, starting from 11:00 AM and closing at around 11:30 p.m. or 12 a.m.
9. In November
2006, Casino Food Services, Inc. (CFS), a subsidiary of
(a) In November 2006, GG&E entered into an agreement
with CFS to provide food and beverage concessions at the casino at
(b) In November and December 2006, approximately 200 CFS food and beverage managers and employees were hired, in the following classifications:
i. bartenders, bar backs, bus persons, cocktail servers, cooks, counter persons, dishwashers, food runners, hosts/hostesses, pantry workers, servers, service bar workers and commissary employees.
ii. Specifically, CFS hired the following number of employees in each position: bartender-28; buffet server-30; grab n go-7; cooks-31; sous-chef-3; wait staff-14; Parkettes (cocktail servers)-43; steward-11; hostess-1.
10. RFS is owned by
(a) Its directors are Michael A. Jaffe, Anthony D. Ricci and Matthew W. Hayes.
(b) Its officers are Michael A. Jaffe (President), Anthony D. Ricci (Vice President) and Matthew W. Hayes (Secretary/Treasurer).
(c) Day to day management of RFS is performed by Michael A. Jaffe, Ken Trout (head cook), Janet Gannon (guest service manager) and Tom Trenich (supervisor).
11. CFS is owned by
(a) Its directors were Francis E. Perko, Jr., Francis E. McDonnell and Matthew W. Hayes.
(b) Its officers were Francis E. Perko, Jr. (President), Francis E. McDonnell (Secretary) and Matthew W. Hayes (Treasurer).
(c) Day to day management of CFS was performed by the President and numerous other managers and supervisors.
12. In December
2006 and January 2007, the
(a) Common ownership: Mr. Watche “Bob” Manoukian is the majority owner of the parent holding company (Greenwood Racing, Inc.), RFS and CFS.
i.
ii. GG&E is
owned 100% by
(b) Common management: RFS and CFS have corporate officials and
managers in common with each other and with
i. Andrew Green is
an employee of Green Racing Management Co. (“Green Racing Management”), a subsidiary
of
A. Andrew Green is identified on the
ii. Robert Green is brother to Andrew Green
A. Robert Green is president of Green Racing Management.
B. Robert Green was identified to the
Pennsylvania Gaming Control Board as “director, chairman and shareholder” of
the gaming subsidiary of
iii. Anthony Ricci is an officer for RFS.
A. Anthony Ricci is Secretary/Treasurer for Green Racing Management.
B. Anthony Ricci is an officer or director for
C. Anthony Ricci is identified on the
D. Anthony Ricci was described in May 2006 to the Horse Racing Commission as “an integral member of the management team since 1993.”
iv. Michael Jaffe is President of RFS.
A. Michael Jaffe is identified on the
v. During October and November 2006, interviews were conducted to hire CFS employees.
A. The CFS interviews were conducted by Dave
Gottlieb (RFS manager at that time), David Jonas (President and CEO of
Greenwood Gaming Services, Inc., and CEO of Greenwood Gaming & Entertainment,
Inc., which are both subsidiaries of
vi. During November 2006, Michael Jaffe (RFS president), David Gottlieb (RFS supervisor), Francis Perko (CFS officer), Ken Trout (RFS head chef), Marc Wirzberger (CFS supervisor) and Michael Coughlin (RFS supervisor, who became a CFS supervisor) supervised both RFS and CFS employees.
vii. In mid-December 2006, on the loading dock, CFS manager (Storeroom supervisor) Nicole McKeown directed RFS employees to unload from three trucks, goods for both CFS and RFS.
A. Unloading goods from trucks was considered CFS work.
viii. In late December 2006/ early January 2007, CFS supervisor Michael Coughlin directed RFS employees to put away stock for both CFS and RFS in 4th floor storeroom.
A. This was considered CFS work.
(c) Centralized control of labor relations
i. In 2003, Andrew
Green represented RFS in negotiations with the
ii. During 2005 and 2006, Andrew Green met with Union Joint Board Manager Lynne Fox about negotiating a new contract once the casino became operational. Green told Fox that he would be the negotiator for all labor unions at the Park.
iii. During the
early summer of 2006, Andrew Green invited Union bargaining representative
Lynne Fox and Union Business Agent Andre Vigliarolo to visit
iv. During summer
2006, Green invited Fox twice to the
v. On June 28, 2006, Andrew Green emailed Lynne Fox with a list of proposed job categories for the temporary casino facility and suggested starting pay rates. The emailed list of job classifications for casino employees included bar back, bartender, bus, cocktail, cooks, counter, dishwasher, food runner, host, pantry, server, service bar and commissary. (GC Exh. 5.)
vi. During mid- or
late November 2006, Union representatives met with Green and Anthony Ricci at
an office located at
vii. About a week later, in a telephone conversation between Fox and Ricci, Ricci offered to include in the RFS bargaining unit all the CFS classifications, including the kitchen servers, but not the cocktail servers. Fox refused this offer.
(d) Interrelation of operations
i. From mid-November to mid-December 2006, RFS employees trained employees who would be working for CFS when the casino opened.
ii. In October and November 2006, RFS employees supplied beverages to the executives who were interviewing applicants for CFS food and beverage positions. RFS employees prepared cookies for interviewees and hot meals for interviewers. The interviews occurred on a floor serviced by RFS employees.
iii. In late November and early December 2006, RFS head chef Ken Trout told RFS employees to keep CFS employees busy. RFS employees trained CFS employees in bar backing. The CFS employees performed RFS work duties for a few days.
iv. From mid-November to mid-December 2006, RFS cooks trained new CFS buffet cooks in food preparation and in use of kitchen equipment. The CFS cooks began using kitchen equipment in the 4th floor kitchen to prepare food for the 3rd floor CFS buffet line.
v. In December 2006, CFS supervisor Mike Coughlin directed RFS employees to put skids of food deliveries away in the storeroom.
vi. In December 2006 CFS manager Nicole McKeown directed RFS employees to unload three trucks full of surveillance equipment for the casino.
vii. In early 2007, CFS supervisors came to the 5th floor to inform employees that there was overflow from the casino buffet on the 3rd floor, and that patrons would be directed to the racetrack dining room on the 5th floor. Thereafter 25 people came up to the dining room.
viii. In December 2006 and early 2007, RFS and CFS cooks worked side by side in the 4th floor kitchen, using the same equipment including knifes, ladles, pans and other kitchen items.
ix. In December 2006 and early 2007, RFS and CFS cooks used the same prep food in the 4th floor kitchen, including bacon, chopped lettuce, tomatoes and sliced meats.
x. In December 2006 and early 2007, all pans and dishes from the 3rd floor casino buffet come to the 4th floor to be washed. All pans and other kitchen items were washed in the 4th floor kitchen, regardless whether they were used by CFS or RFS cooks.
xi. In December 2006 and early 2007, RFS and CFS cooks assisted each other on their work lines: for example, helping out when needed by opening/shutting the door to an oven, carrying heavy items, or removing items from the stove.
xii. From December 2006 to March 2007, CFS and RFS used the same commissary area to get supplies and food prep materials. Until March no forms were required to be filled out to request supplies.
xiii. On December 17, 2006 a party was held on the 5th floor (Racetrack) with two CFS cooks cooking the food and an RFS server and RFS bus person providing food service to the party.
xiv. In December 2006, CFS cooks began preparing food for the casino buffet using RFS line equipment such as fryer, charbroiler and steamer.
13. In February
2007, the
(a) RFS does not stipulate to the factual accuracy of this
information. RFS stipulates that the
14. Subsequent to
the filing of the charge in this matter, the following facts relevant to the
Single Employer issue were disclosed by RFS to the Regional Director in connection
with her investigation of this charge, although all this information was
not necessarily known to the
(a) Common ownership: Mr. Watche “Bob” Manoukian is
the majority owner (approximately 91%), through holding companies, of the
parent holding company (
i.
(b) Common management: RFS and CFS have corporate officials in
common with each other and with
i. Anthony Ricci (Vice President of RFS) holds the following positions:
A. Secretary/Treasurer and Director for
B. Treasurer and Director for GG&E.
C. Secretary/Treasurer and Director for Bensalem.
D. Secretary/Treasurer and Director for Keystone.
E. Director for Greenwood G&E Holding, Inc.
F. Secretary/Treasurer and Director for Green Racing.
ii. Matthew Hayes is a director for both RFS and CFS. Hayes holds the following positions:
A. Secretary/Treasurer for RFS.
B. Treasurer for CFS.
C. Director and Treasurer for Greenwood Gaming
Services, Inc., another subsidiary of
D. Secretary/Treasurer for Keystone.
iii. Robert Green (brother to Andrew Green) holds the following positions:
A. President, Chairman of the Board and Director of Greenwood G&E Holdings, Inc.
B. President and Director of
C. President, Chairman of the Board and Director of GG&E.
D. President and Director of Bensalem.
E. President and Director of Keystone.
15. The
(a) RFS and CFS employees use the same parking lot.
(b) RFS and CFS employees use the same employee entrance
to
(c) RFS and CFS employees use the same swipe card locations to clock in.
(d) During this time period, RFS and CFS employees used the same employee cafeteria.
(e) RFS and CFS employees share one loading dock where all supplies arrive.
(f) RFS and CFS employees use the same payroll office on the 2d floor.
(g) A single payroll company (Green Racing) provides payroll
services for multiple companies at
(h) RFS and CFS employees smoke in the same smoking cafeteria.
(i) RFS and CFS employees in similar classifications wear the same or similar uniforms.
(j) RFS and CFS employees wear uniforms identified as
(k) RFS and CFS employees use the same requisition system for supplies.
(l) RFS and CFS employees share the same locker room on the 2d floor.
(m) RFS and CFS applicants may apply for jobs on the
16. In the charge
and amended charges, the
17. The Single Employer issue was settled pursuant to a unilateral Informal Settlement Agreement approved by the Administrative Law Judge. (GC Exh. 20.)
18. The Division of
Advice issued a Memorandum dated November 26, 2007 finding that the CFS
employees were not appropriately included in the RFS bargaining unit. This Memorandum
was released to the public. (GC Exh. 18.) On December 14, 2007, the
19. The
20. The Union
believed that it would represent all food and beverage employees employed at
21. On January 9, 2007, Fox sent the attached letter to Andrew Green. (GC Exh. 6.)
22. Green responded to Fox by phone verbally and agreed to meet with Fox to negotiate on January 30, 2007.
23. On January 17, 2007, Fox sent the attached letter to Andrew Green. (GC Exh. 7.)
24. RFS received the January 17, 2007 letter.
25. On January 17, 2007, Fox sent the attached information request to Andrew Green. (GC Exh. 8.)
26. RFS received the January 17, 2007 information request.
27. On January 26,
2007, RFS president Jaffe sent the attached letter to the
28. In a meeting on
January 30, 2007 with the
29. On June 7,
2007, Fox sent the attached information request to Andrew Green. (GC Exh. 10.)
30. RFS received the June 9, 2007 information request.
31. On June 9, 2007, Jaffe sent the attached letter to Fox in response to her June 7, 2007 letter. (GC Exh. 11.)
32. On June 14, 2007, Fox sent the attached letter to Jaffe. (GC Exh. 23.)
33. On June 26, 2007, Jaffe sent the attached letter to Fox. (GC Exh. 12.)
34. On July 3, 2007, Fox sent the attached letter to Jaffe. (GC Exh. 13.)
35. On July 5, 2007, Jaffe sent the attached letter to Fox. (GC Exh. 14.)
36. On July 10, 2007, Fox sent the attached letter to Jaffe. (GC Exh. 15.)
37. On July 12, 2007, Jaffe sent the attached letter to Fox. (GC Exh. 16.)
38. On July 13,
2007, Fox sent the attached letter to Jaffe. (GC Exh. 17.)
39. The Union sought the information in its
January 17 and June 7, 2007 information requests in connection with its dispute
with RFS concerning, and to pursue its investigation into (a) whether a
single-integrated employer situation existed, (b) whether the RFS and CFS employees
constituted a single unit and (c) whether RFS bargaining unit work was being performed
by CFS employees.
40. The
(a) The
i. Its good faith belief that CFS employees (cooks) were doing RFS work, in November and December 2006;
ii. The elimination, starting April 18, 2007, of employee shifts on Wednesday and Thursday nights in the 5th floor Turfside Terrace Restaurant/Bar; and
iii. The assignment of food-and-beverage work to CFS employees in the My Juliette patio area, during the summer 2007, as described below in paragraph 46(a).
(b) The Union did not inform RFS, at the time that it made
its January 17 and June 7, 2007 information requests, that the information
sought was relevant to its concerns about policing the
i. The
(c) The
41. The information request allegation was partially settled pursuant to a unilateral Informal Settlement Agreement approved by the Administrative Law Judge. (GC Exh. 20.)
(a) In compliance with the Informal Settlement Agreement,
on March 9 and 10, 2008, RFS provided to the
42. To date, RFS
has failed to provide the following information in response to the
(a) As set forth in subparagraph 6(a)(1) of the Complaint specifically a list showing all CFS food and beverage workers including each employee’s name, address and telephone number and
(b) As set forth in subparagraphs 6(a)(3) and 6(a)(4) of the Complaint.
43. RFS will
consent to and will comply in full with any final Order issued directing it to
respond to the
44. RFS will not defend against production of the
information requested, if so ordered, on the ground that it (a) is not a single
employer with CFS or (b) is not in possession of the information.
45. In June, 2006, RFS employees began working in the 5th floor Turfside Terrace Restaurant/Bar. However there are no signs directing patrons to the 5th Turfside Terrace Restaurant/Bar or the Finish Line Bar, resulting in reduced patronage for Turfside Terrace Restaurant/Bar.
46. In April 2007, without giving notice to the Union and without giving the Union an opportunity to bargain, RFS closed the 5th floor (Racetrack) Turfside Restaurant and Bar on Wednesday and Thursday nights, eliminated employee shifts and reduced hours worked by RFS employees, because of lack of business on those nights and because of costs, including labor costs.
(a) As of the summer 2006, in the grandstand building, all racing food and beverage outlets were located on the 5th floor.
i. RFS employees also traditionally staffed, on Saturdays and Sundays during the summer months, food and beverage outlets known as My Juliette and the patio area, located outside by the racetrack.
ii. During the summer 2007, My Juliette and the Patio area were staffed on several nights by CFS employees. Prior to summer 2007, only RFS employees had staffed the My Juliette and patio area food and beverage outlets.
(b) The 5th floor restaurant/bar is known as Turfside Terrace.
(c) Another bar on the 5th floor is known as the Finish Line bar.
(d) The sole access to the Turfside Terrace and Finish
Line Bar is by elevator, stairway or escalator.
The
(e) The Turfside Terrace Restaurant/Bar and the Finish Line Bar were closed for renovations in 2004.
(f) The Turfside Terrace Restaurant/Bar and the Finish Line Bar reopened in June 2006.
(g) In December 2006, a sign was posted at the elevators indicating that racing was located on the 5th floor.
(h) From December 2006 to the present, there were no signs
on the casino floors which informed
47. The hours of the Turfside Terrace Restaurant/Bar, when it re-opened, were Monday through Sunday (day time) and Wednesday through Saturday evenings.
(a) From the summer 2006 through April 18, 2007, RFS employees staffed the Turfside Terrace Restaurant/Bar working the following shifts:
i. Monday through Sunday, 10 AM to 4:30 PM
ii. Wednesday through Saturday: 4:30 PM to close (9 to 10 PM, or earlier if there were no customers).
(b) The employees per shift were scheduled as follows:
i. All shifts: 1 bartender, 2 cooks, 1 dishwasher
ii. Servers:
A. Saturday day: 6
B. Saturday night: 2
C. Sunday: 5
D. Friday night: 2
E. Wednesday and Thursday nights: 1
(c) Scheduling was done on a weekly basis by Kylie Waters, guest services manager, or by a RFS employee, Janet Gannon.
(d) Weekly schedules were kept by the RFS manager in a book located at guest services on the 5th floor.
48. In April 2007, RFS decided to close the Turfside Terrace Restaurant/Bar on Wednesday and Thursday nights only.
(a) There was no other change to the operation, décor or menu of the Turfside Terrace Restaurant at that time.
(b) Michael Jaffe was the individual responsible for this decision.
49. The Turfside Terrace Restaurant/Bar was closed, effective April 18, 2007, on Wednesday and Thursday nights only, because of
(a) declining revenues due to a lack of patronage and
(b) costs of operation including the labor costs associated with employing waitress(es), bartender(s), cook(s), dishwasher(s) and other employees in the Turfside Terrace Restaurant/Bar on Wednesday and Thursday nights.
50. Michael Jaffe informed employees of his decision that the Turfside Terrace Restaurant/Bar was being closed on Wednesday and Thursday nights due to lack of work.
(a) At the time that Michael Jaffe informed the employees of his decision to close the Turfside Terrace Restaurant/Bar on Wednesday and Thursday nights, he also informed Cynthia Cramer.
i. Cynthia Cramer
had been the
ii. Cynthia Cramer
has resigned her position as shop steward from the
iii. The shop steward
is not authorized by the Union to act as the
iv. The contract
does not authorize the shop steward to act as the
v. RFS did not give advance notice to the shop
steward that the Turfside Terrace Restaurant/Bar was being closed on Wednesday
and Thursday nights. Jaffe informed Cynthia Cramer after the decision had already
been made.
51. All employee shifts on Wednesday and Thursday nights were eliminated, as of April 18, 2007.
52. All RFS employees, who had previously worked in the 5th floor Turfside Terrace Restaurant/Bar on Wednesday and Thursday nights, were transferred to other shifts.
(a) At least one employee (Michelle Pollak) lost a shift due to RFS’s decision to close the Turfside Terrace Restaurant/Bar on Wednesday and Thursday nights. Her shift was changed from Saturday/Sunday (double shifts) and Wednesday/Thursday nights to the following: Saturday/Sunday (double shifts), every Tuesday (day shift) and every other Monday. Her work hours were reduced by one shift, every other week.
(b) Several other employees, including Mark Coughlin, Patricia Cramer and Denise Phillips, who had worked on Wednesday or Thursday nights, were transferred to other shifts.
(c) Employees who were transferred from Wednesday or Thursday night shifts to other shifts may have “bumped” employees with lesser seniority from the shifts that they had been working.
(d) RFS weekly payroll records are attached as an exhibit. (GC Exh. 22.)
53. The 5th floor Turfside Terrace Restaurant/Bar has been closed since around April 18, 2007, to the present, on Wednesday and Thursday nights only.
54. RFS did not
give notice to the
(a) Its decision to close the 5th floor Turfside Terrace Restaurant/Bar on Wednesday and Thursday nights;
(b) Its decision to eliminate employee shifts in the 5th floor Turfside Terrace Restaurant/Bar on Wednesday and Thursday nights;
(c) The effects on the RFS bargaining unit of the closure of the 5th floor Turfside Terrace Restaurant/Bar and elimination of employee shifts on Wednesday and Thursday nights.
55. The
(a) The
56. RFS has not bargained with the Union regarding:
(a) Its decision to close the 5th floor Turfside Terrace Restaurant/Bar on Wednesday and Thursday nights;
(b) Its decision to eliminate employee shifts in the 5th floor Turfside Terrace Restaurant/Bar on Wednesday and Thursday nights;
(c) The effects on the RFS bargaining unit of the closure of the 5th floor Turfside Terrace Restaurant/Bar and elimination of employee shifts on Wednesday and Thursday nights.
57. RFS has withdrawn its defense to NLRB jurisdiction in the matter under Section 103.3 of the Act.
The exhibits are by number:
1. The formal papers in this proceeding.
2. A Motion to
Amend Complaint.
3. The collective
bargaining agreement between RFS and the
4. An extension of
the collective bargaining agreement from December 1, 2003 through June 30,
2006.
5. A letter dated
June 28, 2006 listing proposed job categories and proposed pay for each for
what is called the temporary casino facility. This letter or email was sent by
Andrew Green to the
6. A letter from
the
7. A letter dated
January 17, 2007 from the
“When we get together for negotiations on January 30, 2007, please be prepared to discuss the gaming operations that are just now commencing. The food and beverage employees in those operations fall clearly within our existing bargaining unit, or the very least, constitute an accretion to it. Nevertheless you may not be applying the terms and conditions of the current collective bargaining agreement to those employees. The information request accompanying this letter is designed to determined whether the agreement has in fact been violated with [the] respect to those employees as well as to test the accuracy of what we believe are their working conditions.
If it turns out that you are not applying the terms and
conditions of the agreement to the food and beverage workers deployed in the
gaming operations, then Local 274 will promptly file a grievance for violation
of the agreement. If you admit that the company is not following the agreement
in establishing the terms and conditions of the employment of these workers,
then this letter is itself the
In any event, at the upcoming negotiations, the
8. A letter dated
January 17, 2007 by the
9. A letter dated
January 26, 2007 from RFS to the
“I have been forwarded your correspondence dated January 17, 2007, which I understand was received on January 23, 2007, regarding negotiations for a successor Collective Bargaining Agreement between Racetrack Food Services, Inc. and Local 274, UNITE HERE.
Please be assured that, as President of Racetrack Food Services, Inc., I am prepared to discuss and negotiate any of the terms and conditions of employment for those employees of Racetrack Food Services, Inc. who perform work within the jurisdiction of the Union and under and pursuant to the Concession Agreement between the Employer and the Licensees of the Pennsylvania State Horse Racing Commission. However, I do wish to avoid any misunderstandings about the scope of negotiations.
I am only able to
negotiate on behalf of Racetrack Food Services, Inc. I am not able, nor
authorized, to negotiate on behalf of any other company or entity who might
conduct operations in the Philadelphia Park Grandstand building.”
10. A letter dated
June 7, 2007 from the
“This will serve as a request for an update on bargaining for the now-expired collective bargaining agreement.
As you are aware, Region 4 of the National Labor Relations
Board is currently considering whether the Company has violated federal labor
law by, inter alia, its refusal to bargain with the
Meanwhile, we intend to proceed with the negotiations. Whether or not the employer agrees about whether the casino workers are in the unit, the union needs and is entitled to know about their terms and conditions of employment, to be able to assess what it may accomplish for the racetrack workers in the negotiations. Therefore, we again request the following information concerning the food and beverage and slot attendant workers in the casino side of the operations: [information request omitted here].
11. A letter from
RFS to the
“I have been forwarded your correspondence dated June 7, 2007, which you sent to Mr. Andrew Green. As you have been previously advised, Mr. Green does not work for Racetrack Food Services, Inc., nor is he involved with the negotiations for a new collective bargaining agreement. Accordingly, all communications regarding a new collective bargaining agreement for Racetrack Food Services, Inc. should be addressed to my attention.
As I explained in my letter of January 26, 2007 and when
we met on January 30, 2007, I am prepared to discuss and negotiate any of the
terms and conditions of employment for those employees of Racetrack Food Services,
Inc. who perform work within the jurisdiction of the Union and under and pursuant
to the Concession Agreement between the Employer and the Licensees of the
Pennsylvania State Horse Racing Commission. However, I am not able, nor
authorized, to provide information about any other company or entity who might
conduct operations in the
Finally, I am somewhat confused by your statement that the
Union has been waiting for the response of Racetrack Food Services, Inc.
regarding the Union’s proposals for subcontracting and successorship. It was
the
12. A letter from
RFS to the
“Thank you for your letter of June 14, 2007, though I am somewhat offended that you would claim that your dealings had always been with Andy Green. I seem to recall many instances when you and I met to discuss various issues, including negotiations of a collective bargaining agreement.
My recollection of the January 30, 2007 meeting is also different from your recollection. I recall that you announced that since I was unable to negotiate for employees in a separate and distinct company that you were leaving and advised that it would be in the hands of the attorneys. We advised several times that we would be more than happy to discuss any issues that related to employees of Racetrack Food Services that were members of Local 274, but you had no substantive issues to present. You did have language proposals on subcontracting and successorship clauses and we did take said proposals without any prompting. However, you along with the numerous people you brought with you, left the negotiations once you handed out the proposals and your prepared written statement regarding employees of another employer.
As you are aware, I am only able to negotiate on behalf of
Racetrack Food Services, Inc. I am not able to negotiate on behalf of any other
company or entity who might conduct operations in the
13. A letter from
the
“Please accept this letter in response to yours of June
26. You continue on behalf of
In that regard, please provide us with the titles of all positions Andy Green has held with ‘Racetrack Food Services, Inc.’ and documentation in support.
We appreciate your acknowledgement of
The Company’s excuses for failing to provide the requested information are without merit and unacceptable. If it is a simply a matter of you lacking internal authority to provide the information, then the Company should get someone else to provide it. Historically that was Andy Green. Playing games with corporate identity, as the Company is trying to do here, is no way to conduct good-faith collective bargaining.
That said, we are available to meet for bargaining on July 23. Unless I hear from you, we will assume that we will meet at 11:00 a.m. Please let us know the location.”
14. A letter from
RFS to the
I see no point in continuing in this unproductive letter
writing regarding other entities and employees that operate at the
Racetrack Food Services, Inc. has not responded to your
request on subcontracting and successorship as the
Mr. Van Blunk and I look forward to meeting with you on July 23, 2007 to negotiate any of the terms and conditions of employment for those employees of Racetrack Food Services, Inc. who perform work within the jurisdiction of the Union and under and pursuant to the Concession Agreement between the Employer and Licensees of the Pennsylvania State Horse Racing Commission. Please meet with me in the waiting area on the fourth floor of the grandstand building.”
15. A letter from
the
“This letter shall serve as a reply to yours of July 5.
Your letter does not answer our information request. First, we have requested
information about terms and conditions for the other food and beverage workers
employed at
The most recent information request, which you have also failed to answer, asked for the titles of all positions Andy Green has held with ‘Racetrack Food Services, Inc.’ and documentation in support. If the answer is ‘none’, please just say so.
We would like responses to these information requests before the 23rd.
Your recollection of the last bargaining session is incorrect.
At no time did the
Your new excuse for the Company’s continued failure to
respond.—i.e., that you are waiting for the
16. A letter from
RFS to the
“As I stated in my letter of July 5, 2007, I am not going to continue trading letters regarding issues currently being reviewed by the NLRB. Further, I do not intend to debate whose recollection of the January 30, 2007 meeting is correct as, in my estimation, it will not further the process.
I disagree that our position on not wanting to negotiate only two (2) issues at a time is unlawful. As previously stated, we are willing to consider these issues or any issues regarding the terms and conditions of employment for those employees of Racetrack Food Services, Inc. who perform work within the jurisdiction of the Union and under and pursuant to the Concession Agreement between the Employer and Licensees of the Pennsylvania State Horse Racing Commission. However, it is not fair to ask the Employer to address the issues piecemeal. I am not asking you to come up with a proposal for every conceivable issue, just the items you want to address in the replacement collective bargaining agreement. Obviously, if an unforeseen issue arises during the course of negotiations we will deal with it.
In light of the foregoing kindly advise if you still wish to meet on July 23, 2007.”
17. A letter from
the
“In direct response to your question: ‘yes’ we do still
want to meet on July 23, 2007. However, I question
Will you answer our information requests?
Will you provide this information prior to our meeting on July 23rd?
These are not difficult questions and yet you continue to refuse to answer. I will once again ask for your direct and unambiguous response and you can save the choreographed editorial comments that quite obviously have been written for you.
As to your comments on piecemeal bargaining, we will see what transpires at the negotiations. The bottom line is that you have still not responded to our proposals and it certainly appears that you do not intend to.”
18. An advice memorandum from the Board’s Division of Advice dated November 26, 2007, which in its conclusionary portion states:
“The Region submitted this 8(a)(5) case for advice on whether a single employer of a group of food and beverage employees lawfully refused to bargain with the Union over a new, larger group of employees performing similar work at the same site because the new group was neither a lawful accretion to nor an expansion of the existing bargaining unit.
We agree with the Region that (1) the new, larger group is not an accretion to the existing unit because the two groups experience no employee interchange, have separate day-to-day supervision, and the Board will not accrete a larger group of employees into a smaller unit; (2) the new group is also not a mere expansion of the existing unit, notwithstanding their similar skills and duties, because the two groups lack a sufficient community of interest given the absence of employee interchange and common day-to-day supervision; (3) there is insufficient evidence that the single employer in fact agreed to bargain with the Union in an overall unit of both groups of employees; and (4) the parties’ existing bargaining agreement does not apply to the new group of employees.”
19. A letter from the Region to RFS stating that the Region had approved the Union’s withdrawal of that portion of the charge that it filed in this case alleging a violation of Section 8(a)(1) and (5) because of RFS’s refusal to bargain with the Union concerning the casino food and beverage employees employed at Philadelphia Park, and by unilaterally closing the first floor pizza concession stand, removing work duties assigned to bar back employees, and transferring employee Faith Garcia.
20. The partial settlement approved by me in an earlier order. The settlement is dated March 10, 2008 and provides for the supplying of certain information to the Union, specifically that information referenced at subparagraphs 6(a)(1), 6(a)(2), 6(b) and 6(c) of the Complaint. The partial settlement agreement contains the caveat that RFS and CFS does not admit that the two entities are a single employer and reserves the right to deny Single Employer status in any future proceeding.
21. A memorandum of
understanding between the
22. A listing of RFS employees’ hours by week for specified weeks.
23. A letter dated
June 14, 2007 from the
“Please accept this letter in response to yours of June 9.
As you know, my dealings have always been with Andy Green. I understand that
Your letter acknowledges that the Company has not answered
the
Regardless of whether the so-called ‘casino side’ workers
are in or out of the
24. A complete
compilation of the information supplied by RFS and CFS to the
25. This is a
stipulation of facts which when taken with the Exhibits discussed above
constitute all of the facts in this record. The Stipulation is as follows:2
C. Discussion and Conclusions
1. Did Racetrack violate Section 8(a)(5) of the Act by failing to provide the Union with information that it requested on January 17, 2007, including names, addresses and phone numbers of Casino employees, and names titles, dates of employment, and duties of Casino supervisors, managers and company representatives?
An Employer has a duty to furnish to a union, on request,
information that is relevant and necessary to perform its role as exclusive
bargaining representative of unit employees. Detroit Edison Co. v. NLRB, 440
The relevance of the information request is evaluated by a
liberal, discovery-type standard. NLRB v.
Acme Industrial Co., supra. at 437. Information that is potentially relevant
and will be of use to the union in fulfilling its duties as bargaining representative
must be provided. Pennsylvania Power
& Light Co., 301 NLRB 1104, 1104–1105 (1991). The requested information
need not be dispositive of the issue for which it is sought, but need only have
some bearing on it.
Information pertaining to bargaining unit employees is presumptively relevant and necessary and must be provided. Sheraton Hartford Hotel, 289 NLRB 463 (1988). Where the requested information involves matters outside the bargaining unit, the union has the burden of establishing its relevance and need. Tri-State Generation, 332 NLRB 910 (2000). In keeping with the liberal standard of relevance, this burden is not a heavy one and only requires the union to demonstrate more than a mere suspicion of the matter for which the information is sought. Sheraton Hartford Hotel, supra at 463–464. When there has been a showing of relevance, the Board has consistently found a duty to provide information such as competitor data, labor costs, production costs, restructuring studies, income statements, and wage rates for non-unit employees. The Earthgrains Co., 349 NLRB 389, 394 (2007).
Where information concerns a purported single-employer relationship
between the Respondent and a nominally separate employer, the
The union must have a reasonable objective basis for believing that an alter ego or single employer relationship exists. Shoppers Food Warehouse, 315 NLRB 258, 259 (1994). The union need not inform the employer of the factual basis for its requests, but need only indicate the reason for its request. H&R Industrial Services, Inc., supra (alter ego relationship claimed); Corson & Gruman Co., 278 NLRB 329, 334 (1986) (single employer or alter ego relationship claimed). However, when the circumstances surrounding the request are reasonably calculated to put the employer on notice of a relevant purpose, which the union has not specifically spelled out, the employer is obligated to divulge the requested information. Clear Channel Outdoor, Inc., 347 NLRB 524 (2006).
A union has satisfied its burden when it demonstrates that it had, at the relevant time, a reasonable belief supported by objective evidence, for requesting the information. Cannelton industries, 339 NLRB 996, 997 (2003); National Broadcasting Co., Inc., supra. A union may rely on hearsay or other type of evidence which may not be reliable or accurate to demonstrate that its belief of single employer or alter ego status is reasonable. National Broadcasting Co., supra; Dodger Theatricals Holdings, Inc., 347 NLRB 953 (2008).
To demonstrate the relevance of the information request,
the General Counsel must show either (1) that the union demonstrated relevance
of the nonunit information or (2) that the relevance of the information should
have been apparent to the Respondent under the circumstances.
Based on the
The Union’s January 17, 2007 request for bargaining stated
the
The
Racetrack was aware of the facts underlying the
As stipulated, the Union sought information in connection
with its dispute with Racetrack concerning, and to pursue its investigation
into (a) whether a single employer situation existed, (b) whether Racetrack and
Casino employees constituted a single unit and (c) whether bargaining unit work
was being performed by Casino employees. As stipulated, the
As the
The
2. Did Racetrack
violate the Act by closing the fifth floor dining room and bar on Wednesday and
Thursday nights, without providing notice to the
An employer violates Section 8(a)(5) of the Act when it
makes a material and substantial change in wages, hours, or any other term of
employment that is a mandatory subject of bargaining, at a time when employees
are represented by a union.
Respondent effectively eliminated two evening shifts at its fifth floor dining room, by shutting down the restaurant and bar on Wednesday and Thursday nights, assigning employees to different shifts and reducing hours for at least one employee. Racetrack’s unilateral change affected the entire bargaining unit of employees who were or might have been scheduled to work those nights. It actions affected, at a minimum, five employees in a unit of about 45–50 employees; the bartender, cooks, dishwasher and servers who had been scheduled to work on Wednesday and Thursday nights. One employee lost a shift every other week. Additional employees may have lost hours because of the unilateral change. Employees may have lost income from tips because of the change in schedule and elimination of shifts. The changes, affecting at least 10% of the bargaining unit, were substantial and material. Blue Circle Cement, 319 NLRB 954 (1995); Professional Eye Care, 289 NLRB 738, 754 (1988).
By eliminating two shifts, the Respondent has not made a
basic change in the nature and scope of its food service operation that excuses
the bargaining duty. In Dubuque Packing
Co., 303 NLRB 386 (1991), the Board put forth a two-part test to determine
whether a decision to relocate bargaining unit work is a mandatory subject of
bargaining. Initially, General Counsel must show that the decision did not
constitute a basic change in the nature of the operation. The employer may
rebut to show, inter alia, that labor costs (direct and/or indirect) were not a
factor, or if they were a factor, the union could not have offered concessions
which could have changed the employer’s decision. Even where there is no
obligation to bargain over the decision, there remains the duty to bargain over
it effects. Such bargaining must occur before the decision is implemented.
Racetrack admitted that labor costs were a factor in its
decision. The Board has stated that when labor costs underlie a decision to change
terms and conditions of employment, the decision is particularly amenable to
bargaining. Comar, Inc., supra0; Holly Farms Corp., 311 NLRB 273, 278
(1993). The
However, as noted above, even if Racetrack were not obligated
to bargain over its decision, it is still obligated to bargain over the effects
of that decision. Holly Farms Corp., supra.
(Decision to integrate divisions involved change in scope and direction of
business; bargaining not required because decision did not involve labor costs;
however employer was obligated to bargain about effects.) Racetrack would be
obligated to bargain over the effects even if the decision itself were not a
mandatory subject of bargaining. First
National Maintenance, 452
The extent of effects bargaining will vary depending on circumstances. In Litton Business Systems, 286 NLRB 817, 819–20 (1987), the employer was not obligated to bargain about an economically motivated decision to change its printing processes, but was obligated to explore alternatives to layoff, including retraining, transferring employees, etc., to reduce the scope of the layoffs. In First National Maintenance, supra, the employer’s termination of a contract with a customer resulted in the elimination of jobs, and thus the only meaningful effect to bargain was severance pay. In Holmes & Narver, 309 NLRB 146, 147 (1992), the Board found that the union could potentially offer many alternatives to downsizing, including wage reduction, modified work rules, nonpaid vacations, work reassignments, etc.
Even if Racetrack is only obligated to bargain over the effects
of its decision, it is required to provide advance or “pre-implementation
notice.”
A union is not required to request bargaining when a
change in employees’ terms and conditions of employment is present as a fait
accompli, or where it would be futile to do so. Windstream Corporation, 352 NLRB No. 9, slip op. at 8(2008). “A union does not waive its right to bargain
over unilateral changes by failing to engage in the futile act of trying to
turn back the clock and bargain over an action the employer has already taken.”
The Bohemian Club, supra, slip op. at
3. Racetrack never notified the
The announcement of the decision to close the restaurant
to the shop steward did not constitute notice to the
Conclusions of Law
1. Respondents Racetrack Food Services, Inc., and Casino Food Services, Inc., are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. Respondent Racetrack Food Services, Inc.,
violated Section 8(a)(1) and (5) of the Act by:
(a) Failing and
refusing to supply the
(b) Closing the
fifth floor dining room and bar on Wednesday and Thursday nights, without
providing notice to the Union and giving the
4. The unfair labor practices committed by
Respondent affect commerce within the meaning of Section 2(6) and (7) of 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.
Respondent should
be ordered to provide the
On these findings
of fact and conclusions of law and on the entire record, I issue the following
recommended6
ORDER
The Respondent,
Racetrack Food Services, Inc., of
1. Cease and desist from
(a) Refusing to bargain collectively with UNITE HERE, Local 274 (the Union) as the exclusive collective bargaining representative of its employees in the following bargaining unit, by failing and refusing to provide relevant information requested by the Union:
All full-time and regular part-time bartenders, bus persons, cashier-counterpersons, cooks, utility persons, dishwashers, waitstaff and commissary helpers, but excluding hostesses, captains, maitre’d’s, supervisory chefs, supervisory employees, managerial or foreman employees, security personnel, watchmen, professional employees, office or secretarial employees, guards and supervisors as defined in the Act, and employees currently represented by other labor organizations.
(b) Refusing to bargain collectively with the
(c) In any like or related manner, interfering with, restraining or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action deemed necessary to effectuate the policies of the Act:
(a) Provide the
(b) Rescind the unilaterally implemented changes in terms and conditions of employment of bargaining unit employees, which were put into effect on April 18, 2007, by re-opening the Turfside Terrace Restaurant and Bar on Wednesday and Thursday evenings.
(c) On request, bargain with the
(d) Make employees whole for any loss of earnings and other benefits suffered as a result of the unlawful actions taken against them, in the manner set forth in the remedy section of this decision.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in
Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated 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 benefit and protection
Choose not to engage in any
of these protected activities.
We will not refuse to bargain collectively with UNITE HERE, Local 274 (the Union) as the exclusive collective bargaining representative of its employees in the following bargaining unit, by failing and refusing to provide relevant information requested by the Union:
All full-time and regular part-time bartenders, bus persons, cashier-counterpersons, cooks, utility persons, dishwashers, waitstaff and commissary helpers, but excluding hostesses, captains, maitre’d’s, supervisory chefs, supervisory employees, managerial or foreman employees, security personnel, watchmen, professional employees, office or secretarial employees, guards and supervisors as defined in the Act, and employees currently represented by other labor organizations.
We will not refuse to bargain collectively with
the
We will not in any like or related manner, interfere with, restrain or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act.
We will provide the
We will rescind the unilateral implemented changes in terms and conditions of employment of bargaining unit employees, which were put into effect on April 18, 2007, by re-opening the Turfside Terrace Restaurant and Bar on Wednesday and Thursday evenings.
We will on request, bargain with the Union as the exclusive collective-bargaining representative of its employees in the bargaining unit described above concerning the terms and conditions of employment of the bargaining unit and, if an understanding is reached, embody that understanding in a signed agreement.
We will make employees whole for any loss of earnings and other benefits suffered as a result of the unlawful actions taken against them.
Racetrack Food Services, Inc. and Casino Food
Services, Inc.