Grove Bay Hospitality Group (01-CA-286131)

With regard to the alleged failure of the Employer to turn over this

financial information in response to the Union’s need to verify that subminimum

wage tipped employees are properly compensated, we conclude that the Union

was provided sufficient information for that purpose in November by the

provision a number of spreadsheets concerning the deductions and tips, showing

the amount deducted to be about 2.5% of the tips collected for each employee.  The

Union raised no objection to the credibility of this documentary evidence.  In any

case, adding this allegation would add nothing to the remedy since the order will

effectively require the Employer to disclose the redacted revenue figures, and the

Union can, of course, use them to verify the wages of these subminimum wage

tipped employees.

This email closes this matter in Advice.

Division of Advice

[1]

The fact that the Union is requesting last years figures does not make those

figures any less relevant for what it projects in the future. See Circuit Wise, 306

NLRB 766, 768 (1992) (employer was obligated to furnish information regarding

to company's past profits so as to be able to evaluate the prospect for future

profits upon which the company's proposal was based.); Connecticut Light &

Power Co., 220 NLRB 967, 968 (1975) (past data relevant to formulate proposals

for future benefits) enfd. 538 F.2d 308 (2d Cir. 1976).

[2]

It is true that in Caldwell the Board observed that the union did not request

generalized financial information such as profits, net income, tax returns, salary

information or administrative expenses. But that observation was made against

the backdrop of the claim the employer made in that case -- that the represented

facility was not as competitive as its other facilities and that its production costs

were lower elsewhere. Caldwell Mfg., 346 NLRB 1159, 1160 (2006). Thus in

response to that claim, the union requested cost data and the method the

employer used to track productivity. Id. at n. 6

But that observation was made against

the backdrop of the claim the employer made in that case -- that the represented

facility was not as competitive as its other facilities and that its production costs

were lower elsewhere. Caldwell Mfg., 346 NLRB 1159, 1160 (2006). Thus in

response to that claim, the union requested cost data and the method the

employer used to track productivity. Id. at n. 6. Also requested were material

costs, labor costs manufacturing overhead, productivity calculations, competitor

data and data on possible new production. 346 NLRB at 1159, n.3. The Board

found those requests were narrowly tailored to the employer’s claim. Clearly an

assessment of the employer’s claim(s) is critical, inasmuch as that assessment

will determine whether the requested information was tailored to that claim. In

the instant case, the claim was that wage proposals would be based on revenue

and that the Employer would base its labor costs on actual sales. The Employer

having put its own sales in issue, the Union cannot be faulted for asking for sales

figures. The fact that it asked for sales figures when considered in context is

understandable and information to which the Union would be entitled under the

reasoning of Caldwell.

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)