Universal Building Services, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Universal Building Services, Inc. and Service Employ- ees International Union, Local 36. Cases 4-CA- 8399 and 4-CA-8493 January 20, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On July 12, 1977, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief to which the Charging Party filed an answering brief, and the General Counsel filed cross-exceptions and a brief in support thereof and in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(5) of the Act by refusing to furnish the Union with relevant information.* The Administrative Law Judge re- fused, however, to consider and determine whether Respondent also violated Section 8(a)(l) of the Act because he found that the informal settlement agree- ment covering this allegation, which the complaint herein set aside, had not been breached by Respon- dent's subsequent 8(a)(5) misconduct. With this, we do not agree. The settlement agreement in Case 4-CA-8399 sought to dispose of the allegation that on or about December 15, 1976, Supervisor McMahon threat- ened employees with loss of wage benefits if they engaged in a strike. It provided that Respondent t The Administrative Law Judge failed to mention that the charge in Case 4-CA-8493 was filed on February 15, 1977, and that an order consolidating cases, consolidated complaint, and notice of hearing issued on March 31, 1977. I* Following issuance of this Decision and Order, the Respondent and the Union, on May 3, 1978, filed a joint motion requesting the Board to modify its Order and notice by deleting therefrom the provisions ordering the Respondent to cease and desist from refusing to bargain collectively with the Union by refusing to divulge all information regarding certain arrangements with its supervisors, to bargain on the issue, and to inform its employees in the notice to employees that it will comply with the Union's request for such information. The parties stated that they had "reached accord on a collective bargaining agreement" which covered and thereby mooted the necessity for those provisions. The same three-member panel which decided this case considered the issues raised by the motion and, finding the motion lacking in merit, issued an order on July 17, 1978, denying the joint motion. Member Murphy disagreed and would have granted the joint motion.] 234 NLRB No. 82 would not thereafter commit "like or related" unfair labor practices. The Regional Director approved the agreement on February 14, 1977. On the following day, the 8(a)(5) charge in Case 4-CA-8493 was filed, alleging the January 19, 1977, unlawful refusal to bargain found herein. The Regional Director then set aside the agreement and included McMahon's al- leged threat in the consolidated complaint as an 8(a)(1) allegation. Undisputed testimony at the hear- ing herein established that McMahon did make the threat. The Administrative Law Judge refused to consider and dispose of this allegation because he concluded that Respondent's refusal to furnish infor- mation is not the type of future misconduct banned by the settlement agreement in that it is not "like or related" to the threat-of-reprisal type of conduct contemplated by the agreement. The agreement became operational by virtue of the Regional Director's approval thereof. That approval, however, was predicated on incomplete facts through no fault of the Regional Director. It is obvious, therefore, that, inasmuch as the Regional Director was unaware of the presettlement misconduct at the time of his approval, that misconduct could not have been contemplated either by the Regional Director or by the agreement. We find, therefore, that the settlement agreement did not provide a remedy for all the violations which should have been included in it; therefore the Regional Director properly set the settlement agreement aside and issued a complaint based on Respondent's alleged violations prior to and after the date of the settlement agreement. Were we to adopt the position of the Administrative Law Judge, we would substitute form for substance and leave unremedied a clear uncontested violation of the Act. Accordingly, we find that the 8(a)(1) allegation in issue is properly before us, and that Respondent violated the Act in this regard by threatening employees with the loss of wage benefits if they engaged in a strike. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below, and hereby orders that the Respon- dent, Universal Building Services, Inc., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified herein: 1. Insert the following as paragraph I(b) and reletter the remaining paragraph accordingly: 362 UNIVERSAL BUILDING SERVICES "(b) Threatening employees with loss of benefits if they engage in a strike." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to abide by the following. WE WILL NOT refuse to comply with the Union's request for all information concerning our arrangements with the supervisors. WE WILL NOT threaten employees with loss of benefits if they engage in a strike against us. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist Service Employees Interna- tional Union, Local 36, or any other labor organization, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. UNIVERSAL BUILDING SERVICES, INC. DECISION STATEMENT OF THE CASE THOMAS A. Rlccl, Administrative Law Judge: A hearing in this proceeding was held at Philadelphia, Pennsylvania, on May 16, 1977, on complaint of the General Counsel against Universal Building Services, Inc., herein called the Respondent or the Company. The complaint issued on March 31, 1977, on a charge filed on December 27, 1976, by Service Employees International Union Local 36, herein called the Union, or the Charging Party. The principal issue to be decided is whether the Respondent refused the Union's demand for information relating to its methods of operation and thereby violated Section 8(a)(5) of the Act. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Universal Building Services, Inc., a State of Delaware corporation, is engaged in the cleaning and maintenance business. In the course of its business during the past year it purchased goods valued in excess of $50,000 directly from States other than the Commonwealth of Pennsylva- nia. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR OROANIZATION INVOLVED I find that Service Employees International Union, Local 36, is a labor organization within the meaning of Section 2(5) of the Act. In. THE UNFAIR LABOR PRACTICES There is very little dispute as to the pertinent facts in this case; most of them are established by a written stipulation of all parties plus some agreed-upon documentary exhibits. The essential facts are simple. For some years the Union has been in contractual relationship with the Respondent, both being parties to a multiemployer collective-bargaining agreement. Their last such contract, made between Build- ing Maintenance Contractors Association and Local 36 of the Union International, by its terms expired on November 14, 1976. One of the clauses of that contract was a straight no subcontracting provision. In September 1976 the Re- spondent made timely withdrawal from the Association and the parties hereto then entered upon negotiations for a new contract limited to this single employer. Bargaining started in September and continued to January 19, 1977. One of the Union's demands was inclusion in the contract of the precise no subcontracting clause that had appeared in the expired agreement. The Respondent refused to agree on that issue. By January 19 the only two questions remaining at issue between the parties were a management rights clause and the no subcontracting demand of the Union. In the course of the discussion talk turned to whatever arrangements the Company has with its supervisors in the various buildings where the rank-and-file do the maintenance work as direct employees of the Respondent. Believing that there was a relationship be- tween the question of subcontracting and the Company's doings with its supervisors, the Union "asked what the nature of the private arrangements between the Respon- dent and its supervisors were." (This quotation is from the stipulation of facts signed by the parties.) The Respondent refused to give that information and has refused to furnish it to this day. The complaint alleges that the refusal to reveal exactly what its arrangement with the supervisors is constitutes a violation of Section 8(aX5) of the statute. At the hearing, the Respondent did not offer to prove, indeed it did not even claim, that such information was irrelevant to the subject of subcontracting. Its defense was based on the assertion that the union agents did not state to the company representatives, during the bargaining sessions, their reasons for wanting the information in question. Analysis and Conclusion I find that by refusing to give the information requested the Respondent committed the unfair labor practices alleged in the complaint. There was some, but little, oral testimony, and there were a few documentary exhibits. But if the record contained nothing more than the written 363 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stipulation of facts, the illegal refusal to bargain would be adequately proved. The stipulation includes the following statement: On January 19, 1977, the parties met at the offices of the Federal Mediation and Conciliation Service .... The meeting began at approximately 10:30 a.m. The inclusion of a subcontracting clause was discussed. Mr. Wright [attorney for the employer] informed Mr. Endy [attorney for the union] that the Respondent did not wish to include a subcontracting clause in the agree- ment. The Respondent had an arrangement with its building supervisors. Although the Respondent stated the arrangement did not constitute a subcontracting agreement, the Respondent feared that if such a clause were included, the Union would file a grievance that the arrangement violated the no subcontracting clause. Endy assured Wright that no such grievance had ever been filed during the term of the agreement between the parties when the Respondent was part of BMCA. Endy further asked what the nature of the arrangement was between Respondent and its supervisors. Wright informed Endy that he was not sure what all the aspects of the arrangement were. He further stated that the arrangement was no concern of the Union's, and that the arrangement was a form of an incentive for building supervisors. When the Respondent took the position, at the bargain- ing table, that it feared "the arrangement with its building supervisors" might cause the Union to "file a grievance that the agreement violated the no subcontracting clause," it was literally admitting the possibility that "the arrange- ment" - whatever it is - could arguably be a form of subcontracting. Whether or not the Union had filed such grievances in the past is completely beside the point here. And whether or not such a grievance, filed later, would prove to be meritorious or not is equally immaterial to the question at bar. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967). Of course the Union did not know, as it still does not know, what the arrangement is. So long as the Respondent insists upon hiding its dealings with supervi- sors, the Union cannot know, and prove, as a fact that the arrangement is a form of hidden subcontracting deal. When the Respondent argued, at the hearing, that as of January 19 the Union did not have proof positive that the Company had violated the earlier contract by subcontract- ing work through its supervisors, it was suggesting the Union was at fault for not having knowledge of facts which the Respondent, alone knowing the facts, itself was deliberately refusing to disclose then. There is a failure of logic in the defense position. The answer to this case would be no different had the Union, while considering whether to press for a no subcontracting clause, asked the Company "are you subcontracting away the work covered by our contract?," and the employer answered "we will not tell you." Must the bargaining agent of the employees be sure that the employer is subcontract- ing away the work before it may ask whether or not the employer is doing so? To ask the question is to answer it. And this is what the pertinent cases are all about; it is an old story. If there is one thing a union has a right to be concerned about, and discuss with the employer in collec- tive bargaining under this statute, it is the danger that the employer might give away the jobs, have the work of these people performed by somebody else, shrink the bargaining unit, as the cases say. Town & Country Manufacturing Company, Inc., et al., 136 NLRB 1022, 1027 (1962), speaks of "the elimination of unit jobs, albeit for economic reasons." In Fibreboard v. N.LRB., 379 U.S. 203 (1964), the Court stated the question "as whether the employer was obligated to bargain and furnish information to the union about 'the performance of certain operations in which these employees had been engaged,' and 'work previously performed by employees in the bargaining unit.' " Again, in N.LR.B. v. Rockwell-Standard Corporation, et al, 410 F.2d 953 (C.A. 6, 1969), preservation of unit work lay at the bottom of the union's request for information about the employer's activity in moving the work from one geograph- ical location to another. The language of the court's opinion makes absolutely clear that the bargaining agent has a right to inquire when there is the possibility that "unit work was being transferred," or about "preservation or diversion of the unit work." Of course, after the employer produces the data which under the law it is obligated to give, it could develop that its practices, or its "arrangements," do not relate to the subcontracting bargainable issue, do not transfer work out of the bargaining unit. But merely because after the curtain is drawn there appears an empty stage, it does not follow that the possible act may be concealed ab initio. There is more in the record to indicate convincingly that the Union had reasonable basis for believing that whatever the Company was doing through its supervisors in the performance of work ostensibly covered by the contract bore a direct relationship to subcontracting arrangements. The following testimony by John Joniec, president of Local 36, is entirely uncontradicted, and of course I credit it all. The Respondent here, now called Universal Building Services, Inc., sometimes called itself Universal Building Maintenance Contractors, Inc. It has always been the same company and always one John McEntee has been the individual who owns and manages it. In 1974 there was an audit of the books of the Respondent because the Union thought that work had been performed under the contract for which no pension contributions had been made. When a Federal District Court suit was filed, there was a settlement in cash, with no admission by the Respondent that it had done anything in violation of the then current contract which bound it. In 1975 there was a union grievance filed under the multiemployer contract, again charging the earlier group of employers with failing to make pension contributions, and again cash payments were made as a result. It was after this that this Respondent withdrew from the Association and the multiemployer bargaining. In May 1975 a member of the Union, covered by the contract, and working in one of the Universal Service buildings as he had long been doing, was paid by Henry Nartocola, a supervisor of the Respondent, using his personal check. The check bounced and there was a big issue. The Respondent then made good the payment for work by using its own paycheck. And finally, Union 364 UNIVERSAL BUILDING SERVICES President Joniec testified that for the year 1976 one union member doing work in Universal buildings received W-2 forms showing four different named employers. To repeat: This testimony is not contradicted. I think Bruce Endy, the lawyer for the Union who met with the Respondent in the bargaining and who appeared as a witness in support of the complaint, correctly stated the whole case. In the discussions, the Company refused to concede to the Union's demand for a no subcontracting clause. From Endy's testimony: When I heard the arrangements, the first thing that popped into my mind was that I should know what those arrangements were, so that I could determine on behalf of my client whether the position that Universal was putting forth was a bona fide position, or was it a frivolous position. I felt that unless I knew what those arrangements were I could not make a determination, as to whether the reason why they didn't want the subcontracting clause was a good or bad position. That was, I think, the first thing that came most immediately to my mind. The other thing that came to mind right away was that it seemed to me that if they had some kind of arrangements, in quotes, then maybe they are subcontracting work. And I felt we had to know that, and we had to know that for a number of different reasons. One, we had to know whether we should continue to push strongly for a no subcontracting clause, if there was subcontracting work that made it all the more important that we needed that clause. Considering the entire record made at the hearing, the Respondent's defense amounts to nothing more than an assertion that at the time it demanded information as to what arrangements the Company had with its supervisors the Union did not know for a fact that Universal had been subcontracting away any of the work of the employees within the bargaining unit. I find no merit in this defense argument. I find, in the light of both the stipulation of facts and the evidence introduced, that there was a definite relationship between the Respondent's "arrangements" with its supervisors and the bargainable issue of subcon- tracting work. I therefore find that by refusing to inform the Union about all of its arrangements with supervisors, the Respondent violated Section 8(aX5) and (1) of the Act. Constance Mitchell, an employee of the Respondent, testified, without contradiction, that at a union meeting called by the Company before Christmas 1976, Tom McMahon, one of the supervisors, told the employees that if they went out on strike they would lose their benefits. This statement by a respondent supervising agent was the basis of a charge and complaint in Case 4-CA-8399, which was then settled informally between the Respondent and the General Counsel. The settlement agreement pro- vided that the Respondent would not thereafter "in any like or related manner" commit unfair labor practices. I find merit in the Respondent's argument that the unfair labor practice alleged in Case 4-CA-8493 - refusing to furnish information upon request - does not fall within I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. the phrase "in any like or related manner" as that language appeared in the settlement agreement of the earlier case. I therefore make no finding of illegality with respect to whatever McMahon said to the employees, as shown on this record. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set out in section III, above, occurring in connection with the operations de- scribed in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent refused to bargain with the Union by refusing to give the Union information which it requested for the purpose of adminis- tering and negotiating a contract, I shall recommend that the Respondent be ordered to give that information to the Union upon request. At the hearing the requested informa- tion was referred to only as to the "arrangement" which the Respondent has with its supervisors. What this means, in the light of the total record, is that the Respondent must divulge to the Union information concerning every aspect of its arrangements, including pay, work performed, collat- eral agreements, indirect arrangements, and any other condition or term of employment applicable to its supervi- sors. CONCLUSIONS OF LAW 1. By refusing the Union's request that it reveal its arrangements with all supervisors, the Respondent has violated and is violating Section 8(aX5) and (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' The Respondent, Universal Building Services, Inc., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union by refusing to divulge, upon request, all information regarding arrangements with its supervisors. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights to self-organization, to form, join, or assist the above-named labor organization, or any other labor orga- nization, to bargain collectively through representatives of their own choosing, and to engage in other concerted 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 365 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with Service Employees International Union Local 36 and give the Union, upon request, all information concerning the Respondent's arrangements with its supervisors. (b) Post at each of its established places of businesses where employees are directly employed in the City of Philadelphia, Pennsylvania, copies of the attached notice 2 In the event that 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 marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by its representatives, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 366