Team Clean, Inc.

TEAM CLEAN, INC. 348 NLRB No. 86 1231 Team Clean, Incorporated and Unite Here! Local 5. Case 37–CA–6905–1 December 7, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN, SCHAUMBER, KIRSANOW, AND WALSH On January 13, 2006, Administrative Law Judge Wil- liam G. Kocol issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Re- spondent filed a reply. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recom- mended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Team Clean, Incorporated, Honolulu, Hawaii, its officers, agents, successors, and assigns shall take the action set forth in the Order. 1 The Respondent excepted only to the judge’s decision to deny its request to defer to arbitration the parties’ dispute over the Union’s request for information. The Board has consistently refused to defer information disputes to arbitration. See, e.g., Shaw’s Supermarkets, 339 NLRB 871 (2003); United Technologies Corp., 274 NLRB 504 (1985); General Dynamics Corp., 268 NLRB 1432 (1984). Members Schaumber and Kirsanow view the information request to be encompassed by the parties’ contractual arbitration clause and would defer the request to arbitration. In the absence of a majority to reverse Board precedent in this case, however, they agree to apply current Board law and adopt the judge’s decision. Chairman Battista notes that under Collyer Insulated Wire, 192 NLRB 837 (1971), a fundamental prerequisite for deferral to arbitration is that the issue be arbitrable. In this case, the arbitration clause covers disputes “concerning the interpretation or application of, or compliance with provisions of this Agreement.” The agreement contains no con- tractual provision as to information. Thus, the informational dispute is not arbitrable, and Chairman Battista would not defer. Chairman Battista does not pass on whether the informational alle- gation would be deferrable if it were covered by the arbitration clause. He recognizes that there is Board law stating that information allega- tions are not deferrable even if covered by a contractual arbitration clause. In an appropriate case, he would reconsider that doctrine. However, for the reasons set forth above, it is unnecessary to reach that issue here. Dale K. Yashiki, Esq., for the General Counsel. Bryan P. Andaya, Esq. (Imanaka, Kudo & Fujimoto), of Hono- lulu, Hawaii, for the Respondent. Jennifer Cynn, Esq., of Honolulu, Hawaii, for the Union. BENCH DECISION STATEMENT OF THE CASE WILLIAM G. KOCOL, Administrative Law Judge. This case was tried by telephone conference call on December 13, 2005. The parties were represented by counsel located in Honolulu, Hawaii, and I was located in Los Angeles, California. At the conclusion of the hearing and following closing arguments I issued a bench decision pursuant to Section 102.35(a)(10) of the Board’s Rules and Regulations, setting forth findings of fact and conclusions of law. In accordance with Section 102.45 of the Board’s Rules and Regulations, I certify the accuracy of the portion of the transcript containing the bench decision as cor- rected below; it is attached as Appendix A. [Corrections to transcript omitted from publication.] On these findings of fact and conclusions of law and on the entire record, I issue the following recommended1 ORDER The Respondent, Team Clean, Incorporated, Honolulu, Ha- waii, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to bargain collectively by failing to furnish UNITE HERE! Local 5 and failing to furnish UNITE HERE! Local 5 in a timely fashion, with requested information that is relevant to fulfilling its role as the collective-bargaining repre- sentative of the unit employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Provide UNITE HERE! Local 5 with the information concerning the bargaining unit members’ current addresses and telephone numbers, rates of pay, and weekly work schedules. (b) Within 14 days after service by the Region, post at its fa- cility in Honolulu, Hawaii, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 37, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous 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, defaced, 1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses. 2 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1232 or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employ- ees employed by the Respondent at any time since May 2, 2005. (c) 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. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found. 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 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 be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT refuse to bargain collectively by failing to fur- nish UNITE HERE! Local 5, and failing to furnish UNITE HERE! Local 5 in a timely fashion, with requested information that is relevant to fulfilling its role as the collective-bargaining representative of the unit employees. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of the rights guaran- teed them by Section 7 of the Act. WE WILL provide UNITE HERE! Local 5 with the informa- tion concerning the bargaining unit members’ current addresses and telephone numbers, rates of pay, and weekly work sched- ules. TEAM CLEAN,INCORPORATED APPENDIX A 38 speak for itself—but it did contain some basic—I think, origi- nally contained the name of the employee, social security num- ber, hire date, total wages and some other information regard- ing the union dues. I would like to note that an improvement was made pursuant to the request beginning the 2005 monthly union dues report where the Employer added the following category to the infor- mation provided—in addition to what was already being pro- vided, the property at which each employee works as requested by the Union and also in Exhibit 16 with the October 2005 monthly reports. Again, another effort to attempt to comply with the Union’s request. But other than that, Judge, I have no further comments and I would submit on the record. JUDGE KOCOL: All right. Thank you, Mr. Andaya. Pursuant to the Board’s rules and regulations the following shall constitute my decision in this case. The facts are fully set forth in the stipulation of facts. On through some the material facts now, the charge in this case was filed by the Union on July 21, 2005. And, incidentally, all 39 dates are in 2005 unless I otherwise indicate. And it was served on Respondent, the charge was, on July 22. The first amended charge in this case was filed by the Un- ion on September 16th and a copy was served on Respondent on September 19th. At all times material, Respondent, a corporation with an of- fice and a place of business in Honolulu, Hawaii, has been en- gaged in the business of providing cleaning services. During the 12-month period ending August 31, Respondent in conducting its business operations that I have described pro- vided services valued in excess of $50,000 to other enterprises within the State of Hawaii, including Sheraton Hotels in Wai- kiki, Hilton Hawaiian Village Beach Resort and Spa, and Ka- hala Mandarin Oriental Hotel. At all times material Respondent has been an employer en- gaged in commerce within the meaning of 2(2), (6) and (7) of the National Labor Relations Act, and the Union has been a labor organization within the meaning of 2(5) of the Act. At all times material Brian K. Benz, has held the position of vice president of operations for Respondent and has been a supervisor within the meaning of section 2(11) and an agent of Respondent 40 within the meaning of section 2(13). At all times material Florence Ramiscal—I’m sorry; I’ll spell that—R-a-m-i-s-c-a-l has held the position of human resources director and has been a supervisor within the meaning of sec- tion 2(11) and an agent of Respondent within the meaning of section 2(13) of the Act. The following employees constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the act. “All employees performing at work covered by the September 1, 1992 collective bargaining agreement be- tween Respondent and the Union.” At all times since at least September 1, 1992, based on Sec- tion 9(a) of the Act, the Union has been the designated exclu- sive collective bargaining representative of the unit and since then the Union has been recognized as the representative by Respondent. This recognition has been embodied in a collective bargain- ing agreement effective from September 1, 1992, until such time as the Employer discontinues operations or until the par- ties mutually agree to reopen or terminate that agreement. TEAM CLEAN, INC. 1233 41 On or about May 2, Union organizer Lito Rigor requested by letter that Respondent furnish the Union with “copies of senior- ity listings with date of hire, current wages including weekly work schedule, for Hilton Team Clean, Sheraton Team Clean and Kahala Mandarin Team Clean.” On about May 25, Rigor sent a second request, the letter stated “attached is a copy of the letter that was faxed to you last May 2, 2005 requesting information for all Team Clean em- ployee.” The parties have agreed—the General Counsel and the Un- ion have agreed that the second letter requests nothing more than what was requested in the first letter of May 2. On or about June 24, the Union requested that Respondent furnish the Union with “an updated seniority list containing our members’ names, addresses, phone numbers, the property the member works at, which department he or she works in and his or her rate of pay” and “updated weekly work schedules for the Team Clean members who are working at the Sheraton Hotels in Waikiki, the Hilton Hawaiian Village Beach Resort and Spa, and the Kahala Mandarin Oriental Hotel.” On or about July 28, the Union filed 42 grievance number 613-05. The Union claimed the grievance— the Union—I’m sorry. The Union claimed in the grievance that quote—I’m sorry—no quote, that the Employer violated Sec- tion 13 of the collective bargaining agreement. Section 13 of the collective bargaining agreement provides “the purpose of seniority is to accord consideration to senior employees in recognition of their length of service to their em- ployer. Seniority is intended to provide maximum work oppor- tunity to senior employees.” On or about August 9, the Union filed grievance number 682-05 with Respondent alleging that Respondent’s unit— bargaining unit employees were not provided the proper wage rate. Now, on or about August 24, Respondent through its attor- neys, submitted its position statement to the charge in which it argued in large part for a deferral of the instant charge to arbi- tration. In a letter dated August 24, Respondent acknowledged re- ceipt of the Union’s request for information dated May 2, May 25th and June 24 and informed the Union that Respondent con- sidered the information request to be related to the grievances 43 that I’ve described previously. Now, at all times relevant, Respondent has provided to the Union monthly dues reports. These dues reports lists the em- ployee’s name, social security number, hire date, release date, total wages, union dues and initiation fees. The Respondent prepared a monthly union dues report for the month of July and provided it to the Union. Beginning the August 2005 monthly dues report Respondent added the following category to its report, in addition to that which had been provided in previous months; the Respondent included the property at which each employee works, so it’s clear by at least some point in September, Respondent began providing that information that the Union had requested in its June 24 letter. To date, Respondent has not received the following re- quested information: Bargaining unit members’ current ad- dresses; bargaining unit members’ current telephone numbers; each bargaining unit members’ current rate of pay; the weekly work schedules for bargaining unit members by property, the Sheraton Hotels in Waikiki, the Hilton Hawaiian Village Beach Resort and Spa and the Kahala Mandarin 44 Oriental Hotel. Respondent contends it does not maintain a seniority list and the Union has no knowledge to the contrary. Those are my findings of fact. With regard to the legal standard, under Section 8(a)(5) in one of the Act, the Employer must provide to Union requested information that has at least probable relevance and use to the Union in fulfilling its role as the collective bargaining represen- tative of the employees. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); U.S. Postal Service, 280 NLRB 685 (1986). The standard used to ascertain relevancy is similar to that used in discovery. The requested information need not be dis- positive, it only need have some bearing on the issue. The W-L Holding Co., 272 NLRB 1239 (1984). The duty to supply in- formation includes the duty to do so in a timely fashion. Mary Thompson Hospital, 296 NLRB 1245, 1250 (1989). And un- justified delay in providing requested and relevant information violates Section 8(a)(5) of the Act. Finn Industries, Inc.— that’s spelled F-i-n-n Industries, Inc. 314 NLRB 556 (1994). The first issue I’m going to address is 45 Respondent’s contention that this matter should be deferred to arbitration. It’s been the Board’s consistent policy for decades, virtually since the issuance of the General Counsel’ guidelines back in the 1970s in that request for information matters are not de- ferred to arbitration. I have read the decision cited by Respon- dent wherein the two board members indicated willingness to overrule that precedent, but, of course, I’m bound by Board precedent and I may not follow the dissenting opinions. So based upon that reasoning, the fact that the Board law remains such that refusals to provide information are not de- ferred under Collyer, the request for deferral is denied. Turning now to the merits of the case. I first want to address the issue of seniority lists. And I will dismiss the allegation in the complaint concerning seniority lists because the evidence shows and I have found essentially that the Union has been provided on a monthly basis with the name and hire date of all bargaining unit employees. That is sufficient for the Union to create its own seniority list if it so desires. The General Counsel has argued that the 46 seniority lists alone, and that is the date of hire alone, is of not much value because there is—the seniority is determined by location. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1234 However, I agree with Respondent that the request of May 2 and May 24 aren’t specifically requests seniority lists by loca- tion, and that by providing the date of hire Respondent has effectively supplied the information concerning the seniorities. Turning now to the other information requests. Concerning the bargaining unit’s current address, I find merit in that allega- tion. I note that Respondent argues that with regard to the au- thorization card signed, they apparently have the address on them, but the request the Union made was for current ad- dresses. And the Union—I’m sorry—and the Respondent has an obligation to provide that information that is presumptively relevant and the information that may have been supplied on the authorization cards is not necessarily the current address of the employees. I also find merit in the allegation that Respondent failed to provide the current telephone numbers for the same reason I have indicated previously. 47 With regard to the request for bargaining unit members rate of pay, I differentiate between the wages which Respondent has provided to the Union in the monthly reports and which I find no merit in any allegation that the Respondent has failed to provide wages. I dwell on that a moment because there’s been no request in terms from the Union—in terms of whether they want weekly wages, monthly wages et cetera. And I think that the Union’s monthly dues report adequately supplies the Union with any information requested concerning wages. But with regard to rates of pay, that’s different. I don’t see in the union report any indication—the union’s dues reports any indication that rates of pay have been supplied to the Union, so I find merit in the allegation that Respondent has unlawfully failed to provide the employees current rate of pay. I’ve already dealt with the seniority lists. I dismiss that alle- gation. Finally, I find merit in the allegation that Respondent has failed to provide the weekly work schedules for bargaining unit members in the three properties at issue in this proceeding. 48 The fact that they are posted every week is not a defense. The Respondent is obligated to supply the Union with the in- formation, not merely the employees. And again, this is infor- mation that is presumptively relevant to the Union’s obligations to represent its employees and to police the contract. With regard to the delay of information. There’s only one delay allegation outstanding and that is the information con- cerning the property in which each employee works. I found above that this information was requested in the June 24th letter—let me be sure I have that date right. Yes, the June 24th letter, and it was not supplied to the Union until some time in September of over two months. I have found no justification for that delay in this record, so I conclude that the Respondent has unlawfully delayed in provid- ing the Union with the information concerning the location in which the unit members were working. In sum, I find that the conclusions of law are as follows: That by failing to provide the Union the information that was re- quested concerning bargaining unit members’ current ad- dresses, current telephone numbers, current 49 rate of pay and weekly work schedules at the Sheraton Hotel, the Hilton Hawaiian Village Beach Resort and Spa and the Kahala Mandarin Oriental Hotel Respondent violated section 8(a)(5) and (1) of the Act, and that by delaying and providing the information concerning the property at which the unit em- ployees worked, Respondent also violated section 8(a)(5) and (1) of the Act. I find no violation concerning the request or the hire dates of the employees, the seniority list of the employees or the wages of the employees. I shall in the due course serve upon the parties my written order in this case. I want to thank all the parties for their cour- tesy and corporation. Hearing nothing more on this case, the hearing is now closed. Thank you all very much. MS. YOSHIKI: Thank you, Your Honor. MR. ANDAYA: Thank you, Judge. JUDGE KOCOL: Bye-bye. MS. YOSHIKI: Bye. MR. ANDAYA: Bye.