ARAMARK Educational Services

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 355 NLRB No. 11 60 ARAMARK Educational Services, Inc. and ARAMARK d/b/a Harry M. Stevens, Inc. and ARAMARK Sports, Inc. and UNITE HERE Lo- cal 26. Cases 1–CA–43486, 1–CA–43657, and 1– CA–43658 February 17, 2010 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER On May 13, 2008, Judge Wallace H. Nations issued the attached initial decision in this case. The General Counsel filed exceptions and a supporting brief, in which the Charging Party joined, and the Respondents filed cross-exceptions and a supporting brief. The General Counsel and the Respondents each filed an answering brief and a reply brief. On June 3, 2009, in an unpub- lished decision, the National Labor Relations Board re- manded the case to the judge for further analysis of is- sues arising from the Respondents’ alleged violations of Section 8(a)(5) of the Act by their implementation of a social security no-match policy. On September 30, 2009, Judge Nations issued the at- tached supplemental decision. The General Counsel filed exceptions and a supporting brief. The Respon- dents filed exceptions, a supporting brief, and an answer- ing brief to the General Counsel’s exceptions. The Board has considered the decisions and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order set forth in the supple- mental decision.1 We agree with the judge that UNITE HERE Local 26 timely requested bargaining and had not contractually waived its statutory right to bargain about the social se- 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. See Teamsters Local 523 v. NLRB, 590 F.3d 849 (10th Cir. 2009); Narricot Industries, L.P. v. NLRB, 587 F.3d 654 (4th Cir. 2009); Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S. Sept. 11, 2009) (No. 09-328); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted 130 S.Ct. 488 (2009); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept. 29, 2009) (No. 09-377). curity no-match policy.2 We affirm the judge’s findings on remand that the Respondents violated Section 8(a)(5) of the Act by unilaterally implementing the social secu- rity no-match policy and by suspending employees in October and November 2006, pursuant to the policy prior to any impasse in bargaining with Local 26’s Interna- tional Union. We also affirm the judge’s finding that the International Union’s agreement to “freeze” implementa- tion, without rescinding those suspensions, did not “cure” the violation. Finally, we affirm the judge’s find- ing that the Respondents’ unremedied unfair labor prac- tices did not taint the negotiations with the International Union so as to preclude the parties from reaching a good- faith bargaining impasse in January 2007, that permitted the Respondents to implement and enforce the policy.3 With respect to the remedy for the unlawful suspen- sion of employees, we agree with the judge’s recommen- dation to reinstate them and make them whole for any loss of wages and benefits suffered as a result of this violation. We leave to compliance the effect, if any, of the employees’ immigration status and/or the parties’ “freeze” agreement on the make-whole remedy. The suspended employees, when and if reinstated, will then be subject to enforcement of the no-match policy that the Respondents lawfully implemented in January 2007. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge set forth in the supplemental decision and orders that the Respondents, ARAMARK Educational Services, Inc., Cambridge, Massachusetts, and ARAMARK d/b/a Harry M. Stevens, Inc. and ARAMARK Sports, Inc., Boston, Massachusetts, their officers, agents, successors, and assigns, shall take the action set forth in the Order, as modified by substituting the attached notice for that of the administrative law judge.4 2 We apply the “clear and unmistakable waiver” standard reaffirmed in Provena St. Joseph Medical Center, 350 NLRB 808 (2007). Mem- ber Schaumber adheres to the position that the Board should apply a “contract coverage” test, but he acknowledges that the “clear and un- mistakable waiver” standard is extant Board law and applies it for the purpose of deciding this case. See, e.g., Cardi Corp., 353 NLRB 966 fn. 5 (2009). 3 As previously stated in the Board’s remand decision, we affirm the judge’s recommendation in his original decision to dismiss the allega- tion that the Respondents violated Sec. 8(a)(5) by failing to comply with requests for information from Local 26. We rely only on the judge’s finding that the Respondents, based on discussions with the International Union, furnished the same information to Local 26 that was furnished to the International Union, without objection. 4 We shall substitute a new notice to conform to the Order. ARAMARK EDUCATIONAL SERVICES 61 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 vio- lated 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 bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT unilaterally and without affording the Union notice and the opportunity to bargain, implement and enforce, including suspending employees, our no- match letter policy. WE WILL NOT in any like or related manner, interfere with, coerce, or restrain our employees in the rights guar- anteed them by Section 7 of the Act. WE WILL, within 14 days of the Board’s Order, rescind the suspensions of Gorge Aquirre, Carmen Plasencia, Consuelo Buenrostro, Wilson Melgar, Alejandro Silva, Ana Vargas, Maria Salmoran, Ana Martinez, Silvia Var- gas, Sandra Montoya, Agnaldo Arruda, James Coakley, Maria Martinez, Dario Roldan, and Jose Luissy and offer these employees full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Gorge Aquirre, Carmen Plasencia, Consuelo Buenrostro, Wilson Melgar, Alejandro Silva, Ana Vargas, Maria Salmoran, Ana Martinez, Silvia Var- gas, Sandra Montoya, Agnaldo Arruda, James Coakley, Maria Martinez, Dario Roldan, and Jose Luissy whole for any loss of earnings and other benefits suffered as a result of our discrimination against them, with interest. WE WILL, within 14 days of the Board’s Order, remove from their files any reference to the unlawful suspen- sions, and WE WILL, within 3 days thereafter, notify the employees in writing that this has been done and that the suspensions will not be used against them in any way. ARAMARK EDUCATIONAL SERVICES, INC., ARAMARK D/B/A HARRY M. STEVENS, INC., AND ARAMARK SPORTS, INC. Robert DeBonis, Esq., for the General Counsel. Michael D. Keffer, Esq., of Philadelphia, Pennsylvania, for the Respondent Employer. Michael T. Anderson, Esq., of Boston, Massachusetts, for the Charging Party Union. DECISION STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. This case was tried in Boston, Massachusetts, on October 23 and 24, 2007. The charge in Case 1–CA–43486 was filed September 27, 2006,1 and an amended charge was filed on January 19, 2007, by UNITE HERE Local 26 (the Union) and a complaint based thereon was issued on December 21, 2006, against ARAMARK Campus, Inc., herein called by its correct name, ARAMARK Educational Services, Inc. (ARAMARK Educa- tional or MIT). On December 8, 2006, the Union filed a charge and then on January 19, 2007, filed an amended charge in Case 1–CA–43657 against ARAMARK d/b/a Harry M. Stevens, Inc. (ARAMARK Stevens or Fenway). The Union filed a charge in Case 1–CA–43658 on January 19, 2007, against ARAMARK Sports, Inc. (ARAMARK Sports or Hynes). Region 1 issued an order consolidating cases, amended consolidated complaint and notice of hearing (complaint) on March 7, 2007. The complaint alleges that ARAMARK Educational, ARAMARK Stevens and ARAMARK Sports or collectively Respondents or ARAMARK, have engaged in conduct in violation of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). Respondents filed a timely answer to the complaint wherein, inter alia, they admit the jurisdictional allegations of the com- plaint. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, the Union, and Respondents,2 I make the following FINDINGS OF FACT I. JURISDICTION ARAMARK Educational, a corporation, provides food and beverage service at its place of business at the MIT Faculty Club in Cambridge, Massachusetts. During the calendar year ending December 31, 2006, purchased and received at its MIT facility goods valued in excess of $50,000 directly from points outside of Massachusetts and provided food and beverage ser- vices for the Massachusetts Institute of Technology valued in excess of $50,000, an enterprise within the Commonwealth of Massachusetts. At all material times, ARAMARK Stevens, a corporation, has provided food and beverage service at its Fenway Park facility. During the calendar year ending December 31, 2006, 1 All dates are 2006, unless otherwise indicated. 2 Respondents’ brief contains certain attachments denoted by capital letters. Some of these exhibits were not introduced at the hearing and are clearly hearsay. The General Counsel has filed a motion to strike the attachments marked C, D, E, I, K, and L. The motion is granted and these attachments are not part of the record. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 62 ARAMARK Stevens purchased and received at its Fenway Park facility goods valued in excess of $50,000 directly from points outside of Massachusetts and provided food and bever- age services valued in excess of $50,000 to the Boston Red Sox, an enterprise located within the Commonwealth of Massa- chusetts. At all material times, ARAMARK Sports, a corporation, has provided food and beverage services at its facility in the Hynes Convention Center. During the calendar year ending December 31, 2006, ARAMARK Sports purchased and received at its Hynes facility goods valued in excess of $50,000 directly from points outside of Massachusetts and provided food and bever- age services valued in excess of $50,000 to the Hynes Conven- tion center, an enterprise located within the Commonwealth of Massachusetts. The Respondents have admitted and I find that Respondents are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Complaint Allegations The complaint alleges that at all material times the following individuals have held the positions set forth opposite their re- spective names and have been supervisors of Respondents within the meaning of Section 2(11) of the Act and agents of Respondents within the meaning of Section 2(13) of the Act: Meghan King Associate General Manager, MIT Fac- ulty and Catering, ARAMARK Educa- tional Richard K. Ellis V. P. Labor Relations, ARAMARK Stevens Rob Gould Labor Relations, ARAMARK Stevens Julie Jordan General Manager, ARAMARK Stevens Isaac Jackson Director of Operations, ARAMARK Sports Leigh C. Thumith General Manager, ARAMARK Sports The following employees of ARAMARK Educational (the MIT unit), constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees of the Faculty Club Dining Room and Bar, and all full-time and regular part- time employees of the Faculty Club Kitchen who work twenty (20) hours per week or more, including those in the classifications listed in Article 19-Wages, but excluding all other employees including maintenance employees, hostesses, MIT students employed in any capacity, casual temporary and seasonal employees, managerial and confidential personnel, office clericals, guards, working supervisors as defined in the Act. Since about 1996, and at all material times, the Union has been the exclusive collective-bargaining representative of the unit, and since that date, the Union has been recognized as such by Respondent. This recognition has been embodied in succes- sive collective-bargaining agreements, the most recent of which is effective from July 1, 2002, to June 30, 2007 (the 2002–2007 MIT contract). The following employees of ARAMARK Stevens (the Fen- way Park unit), constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All nonsupervisory full-time and regular part-time food and beverage employees including stand leaders, cooks, stand workers, warehouse personnel, beer sellers, suite attendants, suite runners, bartenders, servers, bussers, runners, utility, ca- tering personnel and vendors who have actually worked more than ten events after April 12, 1982, who are employed at Fenway Park, Boston, Massachusetts. Excluded are manag- ers, assistant managers, office and clerical employees, profes- sional employees, confidential employees, supervisory em- ployees and vendors who have not actually worked more than ten events after April 12, 1982. Since about 1975, and at all material times, the Union has been the exclusive collective-bargaining representative of the Fenway Park unit, and since that date, the Union has been rec- ognized as such by ARAMARK Stevens. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective from January 1, 2004, through December 31, 2008 (the 2004–2008 Fenway Park con- tract). The following employees of ARAMARK Sports (the Hynes unit), constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees as defined in the collective bargaining agree- ment effective between the Union and ARAMARK Sports for the period June 1, 2002 to May 31, 2007 (herein called the 2002–2007 Hynes contract). At all times since 1988, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representa- tive of the Hynes unit and recognized as such by ARAMARK Sports. In September and October 2006, the Union sent the Respon- dents a letter wherein it sought certain information deemed necessary for and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative of the involved units. The Respondents have, since receipt of those letters, failed and refused to furnish the Union with the information sought. About September 1, 2006, the Respondents changed their policy regarding verification of social security numbers for employees who have discrepancies in their social security numbers by disciplining employees who failed to correct such discrepancies. The policy in question is the response that Re- spondents make to the so called “no-match” lists which the Social Security Administration periodically sends to employers, noting the names of employees whose names do not match up with the social security number submitted for them. The change in policy relates to the hours, wages, and other terms and condi- tions of employment of the employees in the involved units and is a mandatory subject of bargaining. The Respondents imple- ARAMARK EDUCATIONAL SERVICES 63 mented the policy change without prior notice to the Union and without affording the Union an opportunity to bargain with Respondents with respect to the change in policy and its effects. The complaint alleges that the Respondents’ conduct noted above violates Section 8(a)(1) and (5) of the Act. The information sought by the Union related the alleged change in policy. In each instance the Union sought the follow- ing information: 1. A copy of any and all documents reflecting com- munications, whether written, oral or electronic, between the Social Security Administration (“SSA”) and ARAMARK between January 1, 2002 and the present, re- garding the social security numbers of employees of ARAMARK. 2. A copy of any and all documents reflecting com- munications, whether written, oral or electronic, between the Department of Homeland Security (DHS) and ARAMARK between January 1, 2002 and the present, re- garding the social security numbers of employees of ARAMARK. 3. A copy of any and all documents social security “no match” letters received by ARAMARK between Janu- ary 1, 2002 and the present. 4. A copy of any and all documents that ARAMARK sent to the SSA or DHS between January 1, 2002 and the present in order to verify employees’ social security num- bers. 5. A copy of any and all documents created or re- ceived by ARAMARK between January 1, 2002, and the present, regarding internal company policies or procedures for responding to social security “no match” letters. 6. A copy of any and all documents created or re- ceived by ARAMARK between January 1, 2002, and the present, regarding internal company policies or procedures for verifying employees’ social security numbers with SSA. 7. A copy of any and all documents reflecting ARAMARK’s oral communications with the SSA, includ- ing the SSA’s Employee Verification Service, between January 1, 2002, and the present, regarding verification of social security numbers of employees of ARAMARK. 8. A copy of any and all documents asking, or reflect- ing an oral request that, ARAMARK report back to the SSA regarding social security “no matches” between January 1, 2002, and the present. 9. A copy of any and all registration forms submitted by ARAMARK to the SSA between January 1, 2002, and the present to register for the SSA’s Employee Verifica- tion System. There are two issues framed by the complaint and facts of this case. These issues are: 1. Did Respondents violate Section 8(a)(5) and (1) of the Act by unilaterally changing their no-match letter pol- icy and practice by requiring employees, as a condition of employment, to resolve discrepancies in the SSA informa- tion within 90 days? 2. Did Respondents violate Section 8(a)(5) and (1) of the Act by refusing to provide the Union with Respon- dents’ communications with the SSA and DHS regarding no-match matters, and Respondents’ internal documents on current and previous no-match policies? B. The Relevant Facts Relating to the Issues Presented 1. Background concerning the no-match issue SSA maintains earnings information on workers for the pur- pose of determining eligibility for social security benefits. Em- ployers submit employee wages to SSA on forms W-2 wage and tax statements. Sometimes, SSA is unable to match a worker’s name and social security number (SSN) from the form W-2 with its own records. Since 1994, SSA has attempted to correct mismatched records by sending no-match letters to employers requesting corrected information. The language in SSA’s letters downplays the immigration implications of a mismatched SSN. No-match letters sent in 2006 emphasized that receipt of the letter does not imply that the employer or employee intentionally gave the government wrong information about the employee’s name or SSN. The language also cautions that the letter makes no statement about an employee’s immigration status. The letter goes on to warn employers that they should not use the letter to take any adverse action against an employee, such as laying off, suspending, firing, or discriminating against that individual, just because his or her SSN appears on the list. The letter states that by doing so, the employer could be violating State or Federal law. On June 14, DHS began the rulemaking process and pro- posed a new rule that would add receipt of a no-match letter to a list of things that could lead to a finding that an employer had constructive knowledge of an employee’s unauthorized immi- gration status. Under the new rule, DHS proposed to create “safe-harbor” procedures that the employer could follow in response to a no-match letter to be certain that DHS would not find that the employer had constructive knowledge that the employee referred to in the letter was not authorized to work in the United States. The safe harbor procedure called for the em- ployer to check its records for the source of the mismatch within 30 days. If the discrepancy was not due to error in the employer’s records, then the employer had to request that the employee confirm his or her information, and advise the em- ployee to resolve the discrepancy with the SSA within 90 days of the date the employer received the no-match letter. On August 15, 2007, DHS concluded its year long rulemak- ing process and issued the new rule to be effective on Septem- ber 14, 2007. However, the U.S. District Court for the Northern District of California blocked the rule by issuing a preliminary injunction. The court’s ruling is under appeal and the rule has never gone into effect. However, there are laws already in effect which bear on the issues raised by the no-match letters. In 2006, ARAMARK received no-match letters for its various corporate entities. The initial letters provided partial lists of SSNs only and no mis- matched names. Respondent requested and received from SSA comprehensive lists of mismatched names and numbers. Over 4400 of its employees appeared on the various lists it received DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 64 for its corporate entities. The Respondents took the receipt of these no-match lists seriously. Several Federal statutes and regulations require Respondent to ensure that its employees have valid SSNs. The Company has cited several of them. For example the IRS is authorized to fine a company $50 for each incorrect SSN that it allows remain incorrect. The Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful for a company to continue to employ an unauthorized alien when it learns that that alien is unauthorized. The Supreme Court in Hoffman Plastic Compound v. NLRB, 535 U.S. 137 (2002), interpreted the provisions of the act cited above thusly: “[I]f an employer unknowingly hires an unauthorized alien, or if the alien becomes unauthorized while employed, the employer is compelled to discharge the worker upon discovery of the worker’s undocumented status. Employers who violate IRCA are punishable by civil fines and may be subject to criminal prosecution.” (Citations omitted.) Federal courts have held that this Act creates a constructive knowledge standard for employ- ers, according to which “a deliberate failure to investigate sus- picious circumstances imputes knowledge.” New El Ray Sau- sage Co. v. U.S. Immigration & Naturalization Service, 925 F.2d 1153 (9th Cir. 1991). I believe these laws must be taken into consideration in this case. 2. Respondents’ no-match policy and practice before September 2006 Two exhibits in the record set forth Respondents’ no-match policy as they existed before 2006, Respondents’ Exhibit 7 and General Counsels Exhibit 22. Respondents’ Exhibit 7 contains a cover memorandum from Respondents’ payroll department dated December 15, 2000. The exhibit also contains two docu- ments that both have the title “Social Security Number (SSN) Verification Process Checklist.” One is undated and the other is dated November 21, 2000. An additional undated document that is referred to in the memorandum and is titled “Notice to All Applicants and Employees,” completes the exhibit. The memorandum, checklists, and notice, taken as a whole, form a confusing mosaic as to what the no-match policy was. It is not clear whether employees who failed to correct discrepancies in their SSA information “may” or “must” be terminated. The memorandum states, “If an employee fails to produce an origi- nal Social Security Card within the time allotted, you must terminate his/her employment.” However, the checklists state, “If the employee fails to bring in proper documentation within 3 business days or a valid card within 60 days, if required, then you may terminate the employee for failure to have a valid Social Security Number.” The notice states, “[A]ll existing employees that have been identified to ARAMARK by the Social Security Administration as having an error in their So- cial Security account may also be required to also produce an original card. NOTE: Employment may not continue if an em- ployee fails to produce an original Social Security Card within the time allotted.” General Counsels Exhibit 22 is titled “Social Security Num- ber (SSN) Verification Process Checklist” and is dated Decem- ber 2002. According to this checklist, existing employees who have a SSN discrepancy are to be informed of the discrepancy. They are then given 3 business days to go to the SSA, correct the discrepancy, and return to the Company with verification that the employee has taken corrective action. The checklist continues, “If the employee fails to bring proper documentation within 3 business days or a valid card within 90 days, then you may terminate the employee for failure to comply with Com- pany policy.” Regardless of the ambiguously written policy that was in place, the record evidence establishes that Respondents’ prac- tice was not to enforce the policy at any of the three locations at issue in this case: Massachusetts Institute of Technology (MIT); Hynes Convention Center (Hynes); and Fenway Park (Fenway). Respondent stipulated that prior to 2006, the local managers at these three locations did not enforce Respondents’ no-match policy at their locations. Moreover, Respondents’ vice president of labor relations, Richard Ellis, conceded in his testimony that Respondents’ written policy was “probably not” enforced in the period between 2000 and 2006. Ellis explained: “I think part of the problem is that—promulgate these rules, then we have changes in management ongoing, changes in HR, changes in labor relations, there’s not the consistency that probably should take place.” Respondents practiced a laissez-faire policy at the three loca- tions before September 2006. It simply notified the employees that they were the subject of the no-match letters and left it up to the employee to decide how to deal with the problem. Em- ployees were allowed to continue working regardless of whether they ever resolved the discrepancies with SSA. Brian Lang, the Union’s vice president and staff director, testified that no employees were disciplined as a result of no-match letter related problems. Lang gave an example of Respondent Educational’s practice in 2004. Respondent Educational informed the Union, by letter, that three bargaining unit employees at MIT were the subject of a no-match letter. A few days later, the Union responded, by letter, setting forth the Union’s position on the matter. The Union took the position that the Company should take no action against the employees, and that the Company had fulfilled its obligation by notifying the employees of the discrepancies. Lang testified that later that month, he met with Hilary Noel, Respondent Educational’s general manager at MIT at the time. At the meeting, Noel told Lang that before she agreed to any- thing, she would have to check with someone in a higher man- agement position. Within a week, she informed Lang that the Company agreed with the Union and would not take any ad- verse action toward the employees who had showed up on the no-match letter. Respondents’ records corroborate Lang’s testimony. MIT employee Carmen Plasencia appeared on the 2004 no-match letter. Apparently she did not correct the discrepancy because she appears again on the 2006 no-match letter. Nevertheless, Plasencia continued to work at both MIT and Hynes until Re- spondents changed its policy and suspended her on October 5, 2006. 3. Respondents change their no-match policy and practice In July 2005, Respondents again revised their social security number (SSN) verification process checklist. The revised checklist provides that employees who are the subject of a no- ARAMARK EDUCATIONAL SERVICES 65 match letter have 14 days to begin corrective action and 90 days to fully correct the problem with SSA. If the employee cannot provide written verification of reapplication or correc- tive action or an original social security card within the time allowed, then the employer “must terminate the employee for failure to comply with ARAMARK policy.” There is no evi- dence that Respondents ever informed the Union of the revised policy or that the Union was aware of the revisions until Sep- tember 2006. In May 2006, Respondents received no-match letters from SSA identifying 4400 employees nationally whose SSA infor- mation had discrepancies. Between May and August, Respon- dents went through a process of obtaining the names as well as the SSNs of the no-match employees from SSA. The first opportunity for Respondents to apply their new pol- icy came in September, after they had obtained the names from SSA. During August, Respondents’ managers had held a series of internal discussions corporatewide on the new no-match policy. By about September 7, they developed a “protocol” that set forth a procedure for labor relations employees to follow at Respondents’ unionized facilities. The protocol uses the same timetable as the July 2005 checklist, i.e., 14 days to begin cor- rective action and 90 days to complete the corrective action. It also calls for employees who have not begun the corrective action in 14 days to be suspended and for employees who have not completed the corrective action in 90 days to be terminated. In early September, even before the finalization of the proto- col, Respondents began implementing their new policy at, inter alia, MIT, Hynes, and Fenway. 4. Respondent Educational implements the changes at MIT Respondent Educational and the Union are parties to a col- lective-bargaining agreement covering about 20 food service employees employed by the Respondent at MIT. The agree- ment expired on June 30, 2007. The parties are currently nego- tiating a successor agreement. Among other things, the agree- ment contained the following provisions: Article 7—Management The Union agrees that, subject to the terms of this Agreement, the management of the Employer’s activities and the direction of the working forces, including but not limited to the establishment of reasonable working rules and reasonable work schedules, the right to hire, assign and transfer employees, to layoff employees because of lack of work or funds, and to discipline or discharge em- ployees for just cause, is vested exclusively in the Em- ployer when not in conflict with other provisions of the Agreement. Article 36—Immigration 36.1 In the event that an employee who has completed his/her probationary period has a problem with his/her right to work in the United States, or upon notification by the INS that an immigration audit or an investigation is being initiated, or when the Em- ployer receives No Match letter(s) from Social Se- curity, the Employer shall immediately notify the Union in writing, and upon the Union’s request, agrees to meet with the Union to discuss the nature of the problem or investigation to see if a resolution can be reached. Whenever possible, this meeting shall take place before any action by the Employer is taken. 36.2 The Employer will furnish to any employee terminated because he/she is not authorized to work in the United States of America a statement stating the employee’s rights and obligations under this Section of the Agreement. 36.3 Upon request, employees shall be released for up to five (5) unpaid working days per year during the term of the Collective Bargaining Agreement in order to at- tend to INS proceedings and any related matters for the employee and the employee’s immediate family (parent, spouse, and/or dependent child). The Em- ployer may request verification of such leave. 36.4 No employee employed continuously since November 16, 1986 (or before as amended by Congress) shall be required to document immigration status. 36.5 In the event that an employee is not authorized to work in the United States following his/her probationary pe- riod or introductory period, and his/her employment is terminated for this reason, the Employer agrees to immediately reinstate the employee to his/her former position, without loss of prior seniority (i.e., seniority, vacation or other benefits do not continue to accrue during the period of absence) upon the employee re- ceiving proper work authorization within twelve (12) months from the date of termination. 36.6 If the employee needs additional time (beyond twelve (12) months, the Employer will rehire the employee in the next available opening in the employee’s former classification, as a new hire without seniority, upon the employee providing proper work authorization within a maximum of twelve additional months. The parties agree such employees would be subject to a proba- tionary period in this event. Though since about 2000, the Employer had had in place a procedure for dealing with no-match letters noted above, it began in 2006 to enforce a uniform policy in this regard com- panywide. This enforcement was in contrast to the hit and miss enforcement that had occurred prior to 2006. The policy had been enforced in some locations around the country, but was not enforced at the three locations involved in this proceeding. In September, the Union received its first indication that Re- spondent Educational was taking a different approach to SSA no-match letters. By letter to the Union dated September 5, Meghan King, Respondent Educational’s associate general manager at MIT, identified approximately 15 employees at MIT who had been the subject of the 2006 no-match letter. King’s letter to the Union stated: Per our discussion we will need to have the individuals identified confirm their Social Security information that DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 66 we received from them upon their hire. If we find that a discrepancy still exists, they will have three (3) business days to go to the local Social Security office to rectify the discrepancy. Upon visiting the SS office, they will need to provide ARAMARK with proof the discrepancy has been resolved. If they are issued a new Social Security card they will have ninety (90) days to bring their new card to ARAMARK. Lang responded by letter dated September 12. He reiterated the position the Union had taken in 2004, i.e., that the Company should take no action against the employees, and that the Com- pany had fulfilled its obligation by notifying the employees of the discrepancies. The letter also warned Respondent Educa- tional that: [N]or should you demand that employees correct the error in their names or social security numbers with the SSA. If you discipline an employee for failing to do so, you will violate the collective-bargaining agreement’s “just cause” prohibi- tion. . . . In sum, we want to schedule a meeting on this mat- ter. You should not demand that employees correct their re- cords with the Social Security Administration. Lang also spoke by telephone with King on or about Sep- tember 12. He told her not to take any adverse action. King responded that she was being told by the corporate office that she had to follow the policy set forth in her September 5 letter. On or about September 21, King sent Lang copies of the let- ters that were being sent to three bargaining unit employees at MIT. The letters stated that the employees were being given 14 days to go to SSA to start the process of correcting the no- match, and that they would be given 90 days to complete the correction process. Lang responded by letter dated September 21. He requested various items of information. He also objected to Respondent Educational’s implementation of a new no- match policy without bargaining with the Union. 5. Respondent Sports implements the changes at Hynes Respondent Sports and the Union are parties to a collective- bargaining agreement covering about 500 food service employ- ees employed by the Respondent at the Hynes Convention Cen- ter and the Boston Convention and Exhibition Center (Hynes). The agreement was effective by its terms from June 1, 2002, to May 31, 2007. It has been extended while the parties are nego- tiating a successor agreement. The agreement contains a simi- lar immigration provision and an identical management-rights provision as found in the MIT agreement. On about September 13, Isaac Jackson, the director of opera- tions for Respondent Sports at Hynes, spoke to Lang by tele- phone. He explained that some bargaining unit employees had appeared on a no-match letter. He asked Lang what he was supposed to do. Lang said that Respondent Sports only obliga- tion was to notify the employees and let them know that they could go to SSA if they wanted to. Lang said he would send him a letter. By letter dated September 13, Lang set forth the Union’s position. He reiterated the position that the Union had taken in 2004 and in its letter to Meghan King at MIT the pre- vious day, i.e., that the Company should take no action against the employees, that the Company had fulfilled its obligation by notifying the employees of the discrepancies, that the Company should not discipline employees for failing to correct their SSA information, and that the Union wanted to meet on the matter. Lang spoke by telephone on September 29 with Jackson’s boss, Leigh Thumith. She was the general manager at Hynes at the time. She told him that Rob Gould, labor relations director for Respondent Sports, would be calling him to discuss the no- match issue. Later on September 29, Lang sent a letter to Thu- mith. Lang stated that he had still not heard from Gould. He also objected to Respondent Sports’ implementation of the new no-match policy without bargaining with the Union. He also requested items of information. Thumith responded with an undated letter that the Union received soon after September 29. Thumith refused to bargain about the no-match issue stating, “Please understand, however, that our compliance with I-9 verification procedures is not subject to negotiation with the Union, but rather is dictated by federal law.” During the week between September 29 and October 7, Lang spoke to Gould by telephone. They spoke about the no-match situation with respect to Hynes and Fenway. Gould explained that the new no-match policy was companywide. Lang told Gould that the new policy was a change and that he needed information about the change. Gould went through the protocol and Lang reiterated the Union’s position. Gould took the posi- tion that it was perfectly legitimate for the Company to imple- ment the new no match policy despite the Union’s opposition. The conversation ended with Gould and Lang agreeing to dis- agree. 6. Respondent Stevens implements the changes at Fenway Respondent Stevens and the Union are parties to a collective- bargaining agreement covering about 2000 food service em- ployees employed by the Respondent at Fenway Park. The basic agreement has been in effect since 1988 and the most recent addendum agreement is effective by its terms from Janu- ary 1, 2004, to December 31, 2008. The agreement contains no immigration provision and has the following management- rights clause: Article 34–Management Rights A. The Company retains the exclusive right to plan, determine, direct and control the nature and extent of all its kitchen, dining room, bar and allied operations, and/or maintenance re- quirements, and to install or introduce any new or improved production methods or facilities and to maintain, efficient operations. The Company retains its inherent right to direct and control its working force personnel, to deter- mine the number of employees required, and to designate the type of position, assignments and reassignments which it deems any employee is qualified to fill. B. The Company shall have the right to make such reasonable rules and regulations as it may deem necessary and proper for the conduct of its business, and the Company may, after negotia- tions with the International Union, change or ARAMARK EDUCATIONAL SERVICES 67 make other rules or regulations; provided, however, that such rules and regulations shall not be inconsistent with or be in modification of this Agreement. In Lang’s telephone conversation with Rob Gould described above, Lang learned that Respondent Sports was implementing its new no-match policy at Fenway. On October 7, after speak- ing with Gould, Lang sent a letter to Julie Jordan, Respondent Stevens’ general manager at Fenway Park. The letter was a request for information and a statement of the Union’s opposi- tion to the new no-match policy without first bargaining with the Union. The letter was identical to those sent to the MIT and Hynes. Genevieve McFarland, Respondent Stevens’ human re- sources director at Fenway in 2006, testified about the seasonal nature of employment at Fenway. The employees are laid off during the off season (October through March) and are rein- stated according to seniority in April. She testified that in Octo- ber, she met with the two bargaining unit employees who were the subjects of the 2006 no-match letter. She also testified that she told them that if they wanted to return in April 2007, they would have to provide documentation that they had valid SSNs. She also testified that typically, employees returning at the start of a season who had worked the previous season were not con- sidered new hires and did not have to fill out I-9 forms. 7. Meetings with the International Union Respondents’ vice president of labor relations, Richard Ellis, testified that he had multiple conversations with two officials from the UNITE HERE International Union, Kurt Edelman and Jim Dupont. UNITE HERE’s International constitution author- izes representatives of the International Union to bargain and reach agreements on behalf of the local unions. Any agreement Ellis and the International Union might have reached would have been binding on the local Union in this case. The conver- sations took place beginning about late September 2006 and early January 2007. Ellis testified that he and Dupont agreed that the Respondents would freeze the no-match procedure until they could meet and negotiate a resolution to the dispute. On or about January 8, 2007, Ellis and Dupont had a face-to-face meeting. Ellis described what happened: [W]e met for about two hours, exchanged positions, talked about clearly their position was we didn’t have to do it, clearly ours was we did. We tried to work out some language. I gave him a copy of documents that we would be willing to agree to. He took them and called me back probably around January 25th, said that there would be no resolution to the matter and I said okay, then we would continue the process the way it started. Ellis testified that Respondents then went back to implemen- tation of their new no-match policy as they had been doing earlier, without objection from the International Union. 8. Respondents suspend employees Respondents’ records indicate that in about October and No- vember, several employees were indefinitely suspended for violating the new no-match policy. At MIT Gorge Aquirre and Carmen Plasencia were suspended on about October 5. At Hynes, Consuelo Buenrostro, Wilson Melgar, Alejandro Silva, Ana Vargas, Maria Salmoran, Ana Martinez, Silvia Vargas, Sandra Montoya, Agnaldo Arruda, James Coakley, and Maria Martinez were suspended. At Fenway, about October 1, Dario Roldan and Jose Luissy were suspended. At the start of the new baseball season in 2007, one of these employees came back to work with a new social security card and the other employee failed to show up seeking re-employment. C. Respondents Refuse to Provide Information to the Union In his September 21 letter to Meghan King, Lang requested information regarding Respondent Educational’s apparent change in its no-match policy. The information requested is set out about at pages 4 and 5 of this decision. Lang sent similar requests to Respondents at Hynes and Fenway. Other UNITE HERE locals sent similar requests. International Union Official Kurt Edelman told Richard Ellis that similar requests were going to be made at all of Respondent’s locations nationwide. When Ellis said that Respondent preferred to just deal with the request on the International level, Edelman rejected this ap- proach and reiterated that the requests would be made by the locals. Although the requests on their face are broad, Lang testified that they were meant to apply only to the MIT, Hynes, and Fenway facilities, not all of ARAMARK’s facilities. In re- sponse to a question from the General Counsel, Lang testified that Respondent never sought clarification as to how broad the request was meant to be. However, at a different part of his testimony, Lang admitted that in a telephone conversation with Respondent’s official, Ted Bennett, Bennett asked and Lang replied as follows: [H]e said well what information exactly do you want. I said I want exactly the information that was on the original informa- tion request and he said can’t you narrow it down. I said no and that’s where it was left. At MIT, King responded to Lang’s request by letter dated September 25. Without giving any reason, she stated that she would not comply with the request. She referred any further question to Ted Bennett, senior director of labor relations at ARAMARK’s corporate office in Philadelphia. Shortly after receiving King’s letter, Lang telephoned Bennett. He asked Bennett to comply with the information request. He also asked Bennett why Respondent was changing its no-match policy without notifying and bargaining with the Union. Bennett did not respond to the question about the change and said he would get back to Lang about the information request. At Hynes, in response to the Union’s information request, Leigh Thumith sent Lang an undated letter at the end of Sep- tember. She said that she was investigating the Union’s infor- mation request and would provide the appropriate information after Respondent Stevens had compiled the documents. Thu- mith never provided any of the requested information. Lang testified that he spoke by telephone in late September with Rob Gould. According to Lang, he told Gould that the new no match policy was a change and he would need information. According to Lang, Gould told Lang that the information that DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 68 he had requested at Fenway and Hynes was “out of bounds.” Gould testified that this conversation took place on September 24 while he was on vacation and before the written information requests had been sent. Gould remembered Lang asking for an employee list and Gould said he would provide one. He did not follow through if indeed he said he would. On this point, to the extent there is a difference between Lang’s and Gould’s testi- mony, I credit Lang. His references to the conversation in cor- respondence that he wrote to the Company at the time corrobo- rate his testimony. Local 26 did receive a positive response to its information requests from Richard Ellis acting on information requests made by the International Union. He responded by separate letters dated November 20 (MIT and Fenway) and December 12 (Hynes). The letters were nearly identical, with the only difference being the employee suspension information on the last page of the attachment. Attached to the letters were the documents listed below: l. A document titled “Social Security Number (SSN) Verification Process for New Hires and Current Employ- ees with SSN Discrepancies (Updated July 2005).” 2. Documents titled “Letter I” and “Letter II” that in- structed employees as to what they needed to do to correct SSN discrepancies. 3. A document titled “Social Security Number Verifi- cation Request for New Hires.” 4. A document titled “Social Security Number Verifi- cation.” 5. A document titled “Social Security Card Notice to All Applicants and Employees.” 6. A no-match letter dated April 7, with all employee names and SSN’s redacted. 7. A computer printout with the names of bargaining unit employees who were suspended for not complying with company policies. After reviewing the letter and documents, Lang concluded that the information was not fully responsive to the Union’s information request. He wrote to Bennett on December 8. He reiterated the Union’s request for all the information he had originally requested. He also enclosed a copy of the original request. Within a month of the December 8 letter, Bennett telephoned Lang. As noted above, Bennett asked Lang exactly what infor- mation he wanted. Lang said he wanted exactly the information that was on the original information request. Bennett asked if Lang could narrow it down. Lang said no. The Union had not received any information other than the November 20 and De- cember 12 correspondence in response to its information re- quests. Lang testified as to why the Union needed the information it requested at the three facilities. He explained that the Union needed the information described in paragraph 1 of its requests in order to ascertain if SSA was putting new requirements on Respondents with respect to their handling of no-match letters. That is why the request goes back to 2002, so that the Union can determine how the SSA requirements have evolved over time. Lang testified that the Union needed the information re- quested in paragraph 2 of its requests because it was aware that DHS had proposed the safe harbor provision and the Union was trying to find out if the Respondents’ no-match policy was related to the DHS proposal and whether the DHS was direct- ing Respondents to do what they were doing. Lang testified that the Union needed the information re- quested in paragraph 3 to see if the SSA’s instructions on no- match letters had changed since 2002. The Union also needed the letters to determine the names of employees who had been the subject of the letters in the past. The Union needed the in- formation requested in paragraphs 4, 8, and 9 of its requests in order to determine if there was a change in the way Respon- dents were relating to DHS and SSA regarding the verification of employee SSNs. Lang testified that the information requested in paragraphs 5, 6, and 7 of the Union’s requests was relevant to the issue of how Respondents’ no-match policy had changed over the years since 2002. The Union suspected there had been a change but it was trying to determine the nature of the change. D. Did the Respondents Violate the Act by Failing and Refuse to Bargain over the Change in its Policy Regarding No-Match Letters Absent the clearly expressed consent of the Union, an em- ployer violates Section 8(a)(5) by changing a term or condition of employment without first bargaining to impasse with the Union. NLRB v. Katz, 396 U.S. 736 (1962). The rules govern- ing the imposition of employee discipline are mandatory sub- jects of bargaining. United Cerebral Palsy of New York City, 347 NLRB 603, 607 (2005). In addition, the establishment of a new condition of continued employment and new grounds for discipline are mandatory bargaining subjects. Where employees are disciplined for failing to comply with a unilaterally changed policy, such a change is material, substantial and significant. Toledo Blade Co., 343 NLRB 385 (2004). An employer can make unilateral changes to such mandatory bargaining subjects only if the union clearly and unmistakably waives its right to negotiate over the changes. See Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983); Provena St. Joseph Medical Cen- ter, 350 NLRB 808 (2007); and California Offset Printers, 349 NLRB 732 (2007). First it is clear to me for the reasons set forth in the factual discussion at an earlier point in this decision that Respondents have made a significant change in their policy regarding no match letters, and further, their total about face in their en- forcement of the policy by itself requires notice and bargaining on request of the affected Union. A change from lax enforce- ment to more stringent enforcement must be bargained over. United Rentals, Inc., 350 NLRB 951, 952 (2007). Respondents take the position that that the Union has waived its right to bargain over the changes in the no-match policy and/or its decision to enforce the policy more stringently be- cause, (1) the Union did not request to bargain over these changes, (2) any request made was not timely, (3) the contracts at Hynes and MIT already address the no-match policy changes, and (4) the Respondents did in fact agree to meet and bargain over the changes, albeit at the International Union ARAMARK EDUCATIONAL SERVICES 69 level. The first two reasons given are not supported by the facts. Upon being notified of the changes at MIT in letter from King to Lang, the Union requested a meeting over the changes in a letter sent to King the next week. Lang sent a similar letter requesting a meeting over the changes to Issac Jackson, director of operations at Hynes on September 13. The information re- quest sent by Lang to Julie Jordan, ARAMARK’s general man- ager at Fenway on October 7 impliedly requests bargaining stating: “There is another reason that you may not implement the proposed regulation before it is adopted. In the past, ARAMARK has received Social Security Administration no- match letters and has not taken the steps that it is now taking. ARAMARK may not change its employment policies without bargaining with Local 26.” This letter was sent about a week after Lang was informed of the changes that would take place at Fenway. I find that the Union made timely request for bargain- ing over the changes to the no-match policy at each of the in- volved facilities and they went unheeded at the local level. The collective-bargaining agreements at Hynes and MIT do cover the subject of no match letters without much specificity. In the first paragraph, they call for the Company to inform the Union in writing when a no-match letter is received and on request of the Union, to meet to see if the problem presented can be mutually resolved. The second paragraph calls for the Company to furnish any employee terminated because the em- ployee is not authorized to work in the US his or her rights and obligations under this portion of the collective-bargaining agreement. ARAMARK’s new policy is more restrictive and specific than the existing contract language and perhaps, more importantly, will be enforced whereas there was no enforce- ment of the no-match policy before September 2006. The com- plete change in the enforcement feature of the policy requires bargaining, on request, as noted above. On the other hand, I believe Respondents’ fourth defense to be a valid one. While Bennett and Gould notified Lang of the impending no-match policy enforcement, Ellis concurrently notified his counterparts at UNITE HERE’s International Union of those changes. UNITE HERE’s constitution authorizes rep- resentatives of the International Union to bargain and reach agreements on behalf of the local affiliates. Any agreement Ellis and the International might have reached would have been binding on Local 26. Upon receiving the notification from Lang, the International Union requested bargaining over the changes. Over the next several months, Ellis and officials of the International Union discussed and negotiated the issue over the phone and then in January met face to face to bargain. During these discussions, ARAMARK froze the implementation of the changes. The discussions throughout the fall of 2006 and the face to face meeting included exchanges of proposals. How- ever, the parties could not reach agreement on whether the Company would change its no-match policy or the extent of the change. As evidenced by letters sent by Local 26 to the Com- pany, the Union’s position is fixed, it wants no enforcement of the Employer’s no-match policy. The Respondent’s position is equally fixed, it wants to comply with existing immigration law and implement its no-match policy. The International Union walked away from negotiations saying no resolution of the parties’ differences could be reached. Bargaining with the International rather than the individual locals makes perfect sense as the changes were taking place nationwide and would affect all of the International Union’s locals at ARAMARK facilities. The parties, in my opinion, did bargain over the changes at the International Union level and could not reach agreement. Though I believe that the Respon- dents may have violated the Act by their September conduct, I find they cured this violation by agreeing to bargain with the International Union and then freezing implementation while bargaining took place. I find that the parties did bargain as the law demands and reached impasse. This impasse is effective with respect to Local 26. Therefore, I find no violation of the Act and will recommend this portion of the complaint be dis- missed. E. Did Respondents Violate the Act by not Providing Local 26 Information Requested As with its bargaining obligation, Respondents chose to re- spond to the International Union and provide it with informa- tion with copies to the locals with which it had a bargaining relationship. Ellis advised the International Union what he would produce, produced it to the International, and never had an objection from the International Union. ARAMARK also received information requests from local unions other than Local 26. It responded identically as it did with Local 26 and provided them with the information provided to the Interna- tional Union. Other than a local in Washington, none objected. The Washington local filed a charge with the involved Region and it was dismissed. As the changes proposed were nation- wide, I agree with Respondent that dealing with the Interna- tional Union rather than a number of local unions was the only sensible approach. Further, I agree with Respondent that Local 26’s information requests were overly broad, and not limited in any way. Though Lang testified that the requests were meant to apply only to Fenway, Hynes, and MIT, it is not clear from the testimony that this limitation was expressed to Respondents. Local 26 has refused to narrow the scope of its information requests though urged to do so by Respondents. Thus, most of the requests are overbroad, and unnecessarily burdensome to comply with as they require production of information for em- ployees not part of the bargaining unit. They also seek histori- cal information on employees that is meaningless in the context of the changes made to the no-match letter policy in 2006. I also find the information requested to be of only marginal rele- vance at best. I believe the information that was requested and that is rele- vant to the local’s role has either been provided in the material supplied pursuant to the International Union’s request or satis- fied by material produced at hearing pursuant to the General Counsel’s subpoena or by stipulation. Local 26 has now re- ceived, by virtue of Aramark’s response to the General Coun- sel’s subpoena, the no-match letters covering MIT, Hynes, and Fenway in 2006. Even if it were practical to gather the same information for the years 2002–2005, I cannot see what rele- vance the historical information would have had for Local 26 in 2006. By virtue of ARAMARK’s informal communications and its response to the International Union’s request, Local 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 70 knew which of its members were affected by the no-match policy in 2006 and how they would have been treated. I do not believe Local 26 needed anything more to effectively represent its members in 2006 and subsequent years. I see no reason to order the production of this historical information, given the difficulty in gathering it, its marginal relevance and considering the information obtained by Local 26 from the General Coun- sel’s subpoena. In a similar vein, Respondent has provided a sample 2006 no-match letter received in 2006 and has received from SSA no instructions beyond what is contained in that letter and virtually identical letters in 2002–2005. Local 26’s requests for all communications between ARAMARK and DHS and SSA have not shown to be relevant enough to the Local’s role as representative to require the Re- spondents to reply. Even before the DHS began its rulemaking, the Respondents already had a clear duty under existing Federal immigration laws to follow up on no-match letters to ensure that its work force was authorized to work in the US. ARAMARK was subject to civil and criminal penalties if it failed to do so. Lang testified that Local 26 wanted to see whether the Government’s instructions to ARAMARK, or ARAMARK’s policy had changed. First, if that was the extent of Lang’s need for information, a look at the policy (which ARAMARK provided to Local 26) and a simple request for copies of instructions from the Government would have suf- ficed. Moreover, a historical look at ARAMARK’s practices would not assist Local 26 in representing employees in 2006. Knowing the names of ARAMARK employees on no-match lists prior to 2006 would not have any meaning as nothing hap- pened to them and they would not be affected unless their names came up on the 2006 no-match letter or a subsequent one. As noted, ARAMARK has supplied information on the mat- ter of its no-match policy to the International Union, without complaint, and a copy of that information response was given to Local 26. By virtue of that response, and the response to General Counsel’s subpoena, Local 26 in my opinion has re- ceived everything requested in its request that is even margin- ally relevant and not overly broad. Local 26’s refusal to limit the scope of its request makes it unreasonable to require Re- spondents to further respond. Given my ruling on the lawful- ness of the changes in the no-match policy, and my discussion of Respondents’ response to the information requests, I do not find that Respondents have violated the Act. I will recommend dismissal of this portion of the complaint. CONCLUSIONS OF LAW 1. Respondents ARAMARK Educational Services, Inc., ARAMARK d/b/a Harry M. Stevens, Inc., and ARAMARK Sports, Inc. are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. UNITE HERE Local 26 is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent’s did not commit the unfair labor prac- tices alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended3 ORDER The complaint is dismissed. Robert DeBonis, Esq., for the General Counsel. Michael D. Keffer, Esq., of Philadelphia, Pennsylvania, for the Respondent Employer. Michael T. Anderson, Esq., of Boston, Massachusetts, for the Charging Party Union. SUPPLEMENTAL DECISION ON REMAND STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. This case was tried in Boston, Massachusetts, on October 23 and 24, 2007. The charge in Case 1–CA–43486 was filed September 27, 2006,1 and an amended charge was filed on January 19, 2007, by UNITE HERE Local 26 (the Union) and a complaint based thereon was issued on December 21, 2006, against ARAMARK Campus, Inc. (herein called by its correct name, ARAMARK Educational Services, Inc. (ARAMARK Educa- tional or MIT). On December 8, 2006, the Union filed a charge and then on January 19, 2007, filed an amended charge in Case 1–CA–43657 against ARAMARK d/b/a Harry M. Stevens, Inc. (ARAMARK Stevens or Fenway). The Union filed a charge in Case 1–CA–43658 on January 19, 2007, against ARAMARK Sports, Inc. (ARAMARK Sports or Hynes). Re- gion 1 issued an order consolidating cases, amended consoli- dated complaint and notice of hearing (the complaint) on March 7, 2007. The complaint alleges that ARAMARK Educational, ARAMARK Stevens and ARAMARK Sports or collectively Respondents or ARAMARK, have engaged in conduct in viola- tion of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). Respondents filed a timely answer to the com- plaint wherein, inter alia, they admit the jurisdictional allega- tions of the complaint. My decision in this matter issued on May 13, 2008. Follow- ing the receipt of exceptions and cross-exceptions, the Board, on June 3, 2009, issued its Decision and Order Remanding. The Order remanding the case states the following conclusion: “In sum, the issues raised with respect to the Respondents no- match policy require further analysis. Therefore, we shall re- mand the case to the judge in the first instance to make the necessary additional findings of fact and conclusions of law about the legality of the implementation of the no-match policy and suspensions, the impact of any unremedied unlawful con- duct on subsequent negotiations, the scope of the parties freeze agreement, and the appropriate remedy for any violations of the Act.” I adopt herein my original decision, including all findings of fact and conclusions of law not affected by the Board’s Order remanding the case to me. Below, I will make such additional 3 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. 1 All dates are 2006, unless otherwise indicated. ARAMARK EDUCATIONAL SERVICES 71 findings necessary to carry out the Board’s Order. I will repeat portions of my original decision when I feel it necessary to further the reader’s understanding of changes I have made. A. The Implementation of the Respondent’s Change in its No-Match Letter Policy Based on my detailed finding of fact on this issue, the Board’s Remand states: The Respondent’s are ARAMARK subsidiaries that provide food and beverage services at three locations in the Boston, Massachusetts area. Based on unfair labor practice charges filed by UNITE HERE Local 26 (Local 26), which represents employees at these locations, the complaint alleges that the Respondents violated Section 8(a)(5) of the Act by failing to bargain with Local 26 be- fore changing their policy for processing Social Security Administration (SSA) “no-match” letters. The SSA issues such letters to employers when employee names and So- cial Security numbers submitted on W-2 forms do not match information in the SSA’s database. The Respondents’ no-match policy was in effect com- panywide but had not been enforced with respect to the employees in the three bargaining units prior to September 2006.2 The policy required employees identified in SSA no-match letters to begin corrective action within 14 days, or face suspension, and to fully correct the problem within 90 days or face termination. In September, the Respon- dent’s began implementing this policy for the three Boston units, but failed and refused to bargain with Local 26 about the change. The judge found that the enforcement of the no-match correction policy at the three facilities represented a change to a mandatory subject of bargaining. He also found that Local 26 had not contractually waived its right to bargain over the changes to the no-match policy and had timely requested bargaining at each of the three facili- ties, but that it’s bargaining requests “went unheeded at the local level.” The judge further found, however, that Aramark’s Vice President of Labor Relations, Richard Ellis, notified representatives of UNITE HERE’s Interna- tional Union about the changes, that UNITE HERE’s con- stitution authorized the International Union Representa- tives to bargain for the local unions, that Ellis had multiple conversations about the changes with International Union representatives to bargain about the changes with Interna- tional Union representatives during the period September 2006 to January 2007, and that Ellis met in person with the International Union representatives to negotiate a resolu- tion to the dispute on January 8, 2007, after which they reached an impasse. In October and November, while Ellis was negotiating with the International Union, the Respondents suspended employees who failed to take timely initial steps to correct their Social Security number discrepancies, as required by the policy. In uncontradicted testimony, Ellis stated that 2 Nor had the policy been enforced in any other part of the United States. he and the International Union representative reached a “verbal agreement” in November to freeze the implemen- tation of the policy while negotiation continued, without rescinding any suspension already imposed. When those negotiations reached a stalemate in January 2007, the Re- spondents resumed implementation and enforcement of the no-match policy.” My findings with respect to this issue were as follows: Absent the clearly expressed consent of the union, an em- ployer violates Section 8(a)(5) by changing a term or condition of employment without first bargaining to impasse with the Union. NLRB v. Katz, 396 U.S. 736 (1962). The rules govern- ing the imposition of employee discipline are mandatory sub- jects of bargaining. United Cerebral Palsy of New York City, 347 NLRB 603, 607 (2005). In addition, the establishment of a new condition of continued employment and new grounds for discipline are mandatory bargaining subjects. Where employees are disciplined for failing to comply with a unilaterally changed policy, such a change is material, substantial and significant. Toledo Blade Co., 343 NLRB 385 (2004). An employer can make unilateral changes to such mandatory bargaining subjects only if the union clearly and unmistakably waives its right to negotiate over the changes. See Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983); Provena St. Joseph Medical Cen- ter, 350 NLRB 808 (2007); California Offset Printers, Inc., 349 NLRB 732 (2007). First it is clear to me for the reasons set forth in the factual discussion at an earlier point in this decision that Respondents have made a significant change in their policy regarding no match letters, and further, their total about face in their en- forcement of the policy by itself requires notice and bargaining upon request of the affected Union. A change from lax en- forcement to more stringent enforcement must be bargained over. United Rentals, 350 NLRB 951, 952 (2007). Respondents take the position that the Union has waived its right to bargain over the changes in the no-match policy and/or its decision to enforce the policy more stringently because, (1) the Union did not request to bargain over these changes, (2) any request made was not timely, (3) the contracts at Hynes and MIT already address the no-match policy changes, and (4) the Respondents did in fact agree to meet and bargain over the changes, albeit at the International Union level. The first two reasons given are not supported by the facts. Upon being notified of the changes at MIT in letter from King to Lang, the Union requested a meeting over the changes in a letter sent to King the next week. Lang sent a similar letter requesting a meeting over the changes to Issac Jackson, director of operations at Hynes on September 13. The information re- quest sent by Lang to Julie Jordan, ARAMARK’s general man- ager at Fenway on October 7 impliedly requests bargaining stating: “There is another reason that you may not implement the proposed regulation before it is adopted. In the past, ARAMARK has received Social Security Administration no- match letters and has not taken the steps that it is now taking. ARAMARK may not change its employment policies without bargaining with Local 26.” This letter was sent about a week after Lang was informed of the changes that would take place at DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 72 Fenway. I find that the Union made timely request for bargain- ing over the changes to the no-match policy at each of the in- volved facilities and they went unheeded at the local level. The collective-bargaining agreements at Hynes and MIT do cover the subject of no-match letters without much specificity. In the first paragraph, they call for the Company to inform the Union in writing when a no-match letter is received and upon request of the Union, to meet to see if the problem presented can be mutually resolved. The second paragraph calls for the Company to furnish any employee terminated because the em- ployee is not authorized to work in the U.S. his or her rights and obligations under this portion of the collective-bargaining agreement. ARAMARK’s new policy is more restrictive and specific than the existing contract language and perhaps, more importantly, will be enforced whereas there was no enforce- ment of the no-match policy before September 2006. The com- plete change in the enforcement feature of the policy requires bargaining, upon request, as noted above. On the other hand, I believe Respondents’ fourth defense to be a valid one. While Bennett and Gould notified Lang of the impending no-match policy enforcement, Ellis concurrently notified his counterparts at UNITE HERE’s International Union of those changes. UNITE HERE’s constitution authorizes rep- resentatives of the International Union to bargain and reach agreements on behalf of the local affiliates. Any agreement Ellis and the International might have reached would have been binding on Local 26. Upon receiving the notification from Lang, the International Union requested bargaining over the changes. Over the next several months, Ellis and officials of the International Union discussed and negotiated the issue over the phone and then in January met face-to-face to bargain. During these discussions, ARAMARK froze the implementa- tion of the changes. The discussions throughout the fall of 2006 and the face-to-face meeting included exchanges of pro- posals. However, the parties could not reach agreement on whether the Company would change its no-match policy or the extent of the change. As evidenced by letters sent by Local 26 to the Company, the Union’s position is fixed, it wants no en- forcement of the Employer’s no-match policy. The Respon- dents’ position is equally fixed, it wants to comply with exist- ing immigration law and implement its no-match policy. The International Union walked away from negotiations saying no resolution of the parties’ differences could be reached. Bargaining with the International rather than the individual locals makes perfect sense as the changes were taking place nationwide and would affect all of the International Union’s locals at ARAMARK facilities. The parties, in my opinion, did bargain over the changes at the International Union level and could not reach agreement. Though I believe that the Respon- dents may have violated the Act by their September conduct, I find they cured this violation by agreeing to bargain with the International Union and then freezing implementation while bargaining took place. I find that the parties did bargain as the law demands and reached impasse. This impasse is effective with respect to Local 26. Therefore I find no violation of the Act and will recommend this portion of the complaint be dis- missed. With respect to my findings set forth above, the Board in its Order Remanding stated: With certain exceptions, such as a waiver by a union, a unilat- eral change in conditions of employment before good-faith bargaining reaches impasse violates Section 8(a)(5). NLRB v. Katz, 369 U.S. 736, 743 (1962). The judge made no finding that the Respondent’s were privileged to implement the no- match policy and to suspend the employees pursuant to that policy before reaching impasse in bargaining with the Interna- tional Union. Logic suggests, therefore, that the October and November 2006 suspensions of the employees were unlawful. I have reconsidered my original findings and conclude that they were in error insofar as I concluded that Respondent’s September unfair labor practices and the resulting suspensions were “cured.” Relying on my earlier findings set out above and the cases I cited, absent my findings with respect to the “cure,” I find that Respondents violated Section 8(a)(1) and (5) by unilaterally implementing the changes in their policy with re- spect to SSA no-match letters and by enforcing those changes without first affording the Union the opportunity to bargain over those changes. It follows then that the suspensions that took place following this unlawful implementation were like- wise unlawful. I will recommend an appropriate remedy in the Remedy section of the Supplemental Decision. B. The Question Whether the Unremedied ULPs Precluded an Impasse The Board goes on to raise another issue for determination on Remand: Assuming that the suspensions were unlawful, it would be necessary, as the General Counsel contends, to consider whether the existence of those unremedied unfair labor practices precluded a subsequent lawful impasse in Janu- ary. The Board has stated that “[n]ot all unremedied unfair labor practices committed before or during negotiations . . . will lead to the conclusion that impasse was declared improperly. . . . Only “serious unremedied unfair labor practices that affect the negotiations will taint the asserted impasse.” Dynatron/Bondo Corp., 333 NLRB 750, 752 (2001) (citations omitted) (emphasis in original). The judge did not analyze whether the suspension of employees, if unlawful, precluded the possibility of reach- ing good-faith impasse over the no match policy. Nor did he explain why, even if the subsequent impasse was not tainted by the unfair labor practices, there should not be a remedy for the pre-impasse suspensions. Having found that the implementation and enforcement of the changes in the Respondents’ no-match letter policy and the resulting suspensions were unlawful and must be remedied, I continue to believe that they did not sufficiently taint the nego- tiations so as to void the impasse reached in January 2007. In Dynatron/Bondo Corp, supra, the Board also stated: “Thus, the central question is whether the Respondent’s unlawful conduct detrimentally affected the negotiations over a new collective bargaining agreement and contributed to the deadlock. In Al- ARAMARK EDUCATIONAL SERVICES 73 win, 192 F.3d at 139,3 the court identified at least two ways in which an unremedied ULP can contribute to the parties’ inability to reach an agreement. First, a ULP can increase the friction at the bargaining table. Second, by changing the status quo, a unilateral change may move the baseline for negotiations and alter the parties’ expectations about what they can achieve, making it harder for the parties to come to an agreement. Though I concede that the unfair labor practices found to have been committed need to be remedied, I think it would be incorrect to say that they affected the negotiations over the proposed change in the Respondents’ no-match letter policy. The Respondents’ reasons for the change are valid and dis- cussed in detail in my original decision. For the reasons of- fered by Respondents and discussed in my original decision, the Respondents’ position is fixed. The Union’s position has been fixed since it learned of the change in policy. The Union at all times opposed enforcement of Respondents’ no-match letter policy. This position did not change by Respondents’ suspension of its implementation between November 2006 and January 2007. Nor was it affected materially by Respondents’ unilateral implementation and enforcement of the no-match letter policy. I can find no evidence that the violations created any friction above and beyond the friction that the proposed changes caused. I can find no move in the baseline and alteration of what the parties could expect to achieve in the negotiations over the proposed change because of the unlawful implementa- tion. I can find no evidence to convince me that the Union’s walking away from the January 2007 negotiations, saying that no resolution of the parties’ differences could be reached, was any way affected by the Respondents’ unfair labor practices. The unfair labor practices were certainly not cited as the reason for leaving or even part of the reason. Accordingly, I find that the impasse reached was not tainted by unremedied unfair labor practices and that the subsequent implementation and enforce- ment of the Respondents’ no-match letter policy was lawful. I believe that the best solution to the issues presented by the Board’s Remand Order is to remedy the violations and to allow the impasse to stand. The November freeze in the implementa- tion and enforcement of the policy did not remedy the unlaw- fulness of the implementation in September and the unlawful suspensions in October and November. I will recommend that a remedy be provided. CONCLUSIONS OF LAW 1. Respondents ARAMARK Educational Services, Inc., ARAMARK d/b/a Harry M. Stevens, Inc., and ARAMARK Sports, Inc. are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. UNITE HERE Local 26 is a labor organization with the meaning of Section 2(5) of the Act. 3. By unilaterally implementing and enforcing their changes in the no-match letter policy, including suspending employees 3 Alwin Mfg. Co., 326 NLRB 646, 688 (1998), enfd. 192 F.3d 133 (D.C. Cir. 1999). as a result, Respondents violated Section 8(a)(1) and (5) of the Act. 4. Respondents’ unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondents having discriminatorily suspended their employees,4 they must rescind the suspensions and offer the affected employees reinstatement and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of rein- statement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987). Respondents should additionally remove any reference to the unlawful suspensions from the personnel records of the affected employees and notify them in writing that this has been done, and that the unlawful suspensions will not be used against them in any way in the future.5 On these findings of fact and conclusions of law and on the entire record, I issue the following recommended6 ORDER The Respondents, ARAMARK Educational Services, Inc., Cambridge, Massachusetts, and ARAMARK d/b/a Harry M. Stevens, Inc. and ARAMARK Sports, Inc., of Boston, Massa- chusetts, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally and without affording the Union notice and the opportunity to bargain, implementing and enforcing, includ- ing suspending employees, its no-match letter policy. (b) In any like or related manner, interfering with, coercing, or restraining employees in the rights guaranteed them by Sec- tion 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of the Board’s Order, re- scind the suspensions of Gorge Aquirre, Carmen Plasencia, Consuelo Buenrostro, Wilson Melgar, Alejandro Silva, Ana 4 Respondents’ records indicate that in about October and Novem- ber, several employees were indefinitely suspended for violating the new no-match policy. At MIT Gorge Aquirre and Carmen Plasencia were suspended on about October 5. At Hynes, Consuelo Buenrostro, Wilson Melgar, Alejandro Silva, Ana Vargas, Maria Salmoran, Ana Martinez, Silvia Vargas, Sandra Montoya, Agnaldo Arruda, James Coakley, and Maria Martinez were suspended. At Fenway, about Oc- tober 1, Dario Roldan and Jose Luissy were suspended. 5 The matter of the immigration status of these employees was not sufficiently litigated in the trial on the unfair labor practices. It can be litigated at the compliance stage. 6 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 74 Vargas, Maria Salmoran, Ana Martinez, Silvia Vargas, Sandra Montoya, Agnaldo Arruda, James Coakley, Maria Martinez, Dario Roldan, and Jose Luissy and offer these employees full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed. (b) Make Gorge Aquirre, Carmen Plasencia, Consuelo Buen- rostro, Wilson Melgar, Alejandro Silva, Ana Vargas, Maria Salmoran, Ana Martinez, Silvia Vargas, Sandra Montoya, Ag- naldo Arruda, James Coakley, Maria Martinez, Dario Roldan, and Jose Luissy whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision. (c) Within 14 days from the date of the Board’s Order, re- move from their files any reference to the unlawful suspensions and within 3 days thereafter notify the employees in writing that this has been done and that the suspensions will not be used against them in any way. (d) Preserve and, within 14 days of a request, or such addi- tional 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 re- cords, 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. (e) Within 14 days after service by the Region, post at their facilities in Cambridge and Boston, Massachusetts, copies of the attached notice marked “Appendix.”7 Copies of the notice, on forms provided by the Regional Director for Region One, after being signed by the Respondents’ authorized representa- tive, shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other mate- rial. In the event that, during the pendency of these proceed- ings, the Respondents have gone out of business or closed the facilities involved in these proceedings, the Respondents shall duplicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 27, 2006. (f) 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. 7 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.”