NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
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Aramark Corporation[1] and Union of Needle Trades, Industrial and
Textile Employees, Hotel Employees and Restaurant Employee International
February 26, 2009
ORDER REMANDING
By Chairman Liebman and Member Schaumber
On August 27, 2008, Administrative Law Judge Howard Edelman issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge’s decision.
The National Labor Relations Board[2] has considered the decision and the record in light of the exceptions and briefs and has decided to remand this case to the judge for further findings of fact, analysis, and conclusions of law.
The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish the Union with requested information that is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative for the unit. Although the judge found that the Respondent’s refusal to provide the requested information violated Section 8(a)(5), the judge’s supplemental decision does not provide an adequate basis for review. Notably, the judge’s supplemental decision failed fully to discuss the record evidence, make findings of fact and credibility resolutions with respect to the testimony presented, and address the parties’ contentions in light of the credited evidence, and the judge failed to set forth conclusions of law.
“Section 102.45(a) of the Board’s Rules and Regulations
provides that after a hearing the judge shall prepare a decision containing ‘findings
of fact, conclusions, and the reason or basis therefor, upon all material
issues of fact, law, or discretion presented on the record.’”
Accordingly, we shall remand the case to the judge for the issuance of a second supplemental decision that resolves the complaint allegations in conformity with our Rules and Regulations. In remanding this case, we do not pass on the merits of the complaint allegations or the ultimate validity of the judge’s prior findings.
It is ordered that this proceeding is remanded to Administrative Law Judge Howard Edelman for the purposes described above.
It is further ordered that the judge shall prepare and serve on the parties a second supplemental decision containing credibility resolutions, findings of fact, conclusions of law, and a recommended Order. Following service of the second supplemental decision on the parties, the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable.
Dated,
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Kevin R.
Kitchen, Esq., for the General Counsel.
Vonda
Marshall Harris, Esq., for the Respondent.
Lia
Fiol-Matta, Esq., for the Charging Party.
SUPPLEMENTAL DECISION
On July 18, 2008, I issued the decision in the above case.
On August 13, 2008, after reviewing the decision and finding typographical errors and that a number of paragraphs were not in the proper order, I requested that the Board remand this decision.
On August 14, 2008, the Board issued an Order remanding the case to the administrative law judge.
I issue this supplemental secision.
Statement of the
Case
Howard Edelman, Administrative Law Judge. This case was tried on April 29, 2008. A complaint and notice of hearing issued on February 28, 2008, filed by the Union of Needle Trades, Industrial and Textile Employees, Hotel Employees and Restaurant Employee International Union, Local 100 (the Union), alleging that Aramark Services Inc. (the Respondent), refused to supply the Union with information relating to a grievance filed against the Respondent.1
On the entire record, including my observations of the demeanor of the witnesses, and a consideration of the briefs filed by counsel for the General Counsel and Respondent, I make the following:
Findings of
Fact
At all material times,
Respondent is a domestic corporation, with its principal office and place of
business located at
During the past
calendar year, which period is representative of its operations generally,
Respondent, in conducting its business operations described above, derived
gross annual revenues in excess of $500,000.
During the past calendar year, Respondent, in conducting its business
operations described above, purchased and received at its
At all material times, Respondent has been an employer within the meaning of Section 2(2), (6), and (7) of the Act.
At all material times,
the
The following employees of Respondent (the unit), constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:
All food service employees
and Java City Coffee Shop employees employed at Citibank,
At all material times,
the
At all material times,
the
On September 18, 2007,
the
On or about September
18 and October 1, 2007, the
In order to investigate and determine the merits of this
grievance the
1. Two years of weekly consumer counts of Café & catering.
2. Two years of weekly sales reports of Café & catering.
3. Two years of weekly time cards of all employees.
4. Two years of weekly payroll record of all employees.
5. Copy of Aramark’s current contract with Citigroup as well as the
previous contract with Citigroup.
6. Updated Bargaining Unit List, including: Social Security, Full Name,
Date of Hire, Pay of Rate and Classification.
Respondent has refused
to comply to the
On October 3, Respondent by its manager, John Bello, responded: “ARMARK does not wish to divulge the information requested by you (Local 100) on September 18, 2007. We believe that the information requested does not pertain to the grievance filed in regard to a reduction of service hours.”
On October 12, the
Analysis and Conclusion
The
The general principles
regarding the obligation of an employer to supply information to the union are
clear and not in dispute. An employer,
on request must provide a union with information that is relevant to its
carrying out its statutory duties and responsibilities in representing
employees. Pulaski Construction Co., 345 NLRB 931, 938 (2005); NLRB v. Acme Industrial Co., 385
Here, I find that the
Union’s information requests 2, 3, 4, and 6 are presumptively relevant to the
Union’s grievance and must be turned over to the
While not
presumptively relevant, I conclude requests 1 and 5 are relevant to the
grievance, since they relate to Respondent’s economic defense. Shoppers
Food Warehouse, 315 NLRB 258, 259 (1994); and
Respondent’s Confidential Defense
Respondent always reduced its hourly rate by one-half hour on Memorial Day and that restoration of the one-half hour was restored on Labor Day. In this case, Respondent for the first time argued that they could not restore the one-half hour based upon “economic conditions.”
During the course of
this trial after the General Counsel rested his case, Respondent for the first
time, contended that all of the
It is well settled
that confidentiality claims must be timely raised before trial. The reason a confidentiality claim must be
timely raised is so that the parties can attempt to seek an accommodation of
the employer’s asserted confidentiality concerns before trial. Detroit
Newspaper Agency, 317 NLRB 1071, 1095 (1995); Tritac Co., 286 NLRB 522 (1987).
An employer is not relieved of its obligation to turn over relevant
information simply by invoking concerns about confidentiality, but must offer
to accommodate both its concern and its bargaining obligations, as is often
done by making an offer to release information conditionally or by placing
restrictions on the use of that information.
Accordingly, I find Respondent’s claim of confidentiality during the Respondent case was not timely or appropriate, and therefore I find Respondent’s contention is without merit.
Article 27 of the Parties’ Collective-Bargaining Agreement
Respondent also contends that article 27 of the collective-bargaining agreement grants Respondent the discretion to make operational changes. This provision of the contract provides, in pertinent part:
The Employer shall have the exclusive right to plan, direct and control its operations; the right to decrease or increase the scope thereof; the right to install or remove equipment, the right to determine the size and composition of the working force; the Employer may, after negotiations with the union, establish and maintain reasonable operating rules and regulations.
In National Broadcasting Co., Inc., 352 NLRB 90 states:
The Board does not
pass on the merits of the union’s claim that the employer has breached the collective-bargaining
agreement, in determining whether information relating to the processing of a
grievance is relevant. Dodger Theatricals, supra at 15;
Respondent contends that article 27 justifies Respondent’s decision not to restore the wages in issue.
However, the Board sets forth in National Broadcasting Co., supra, that this issue, whether article 27 permits Respondent not to restore the wages, must be decided by an arbitrator, and not the Board.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended2
ORDER
The Respondent,
Aramark Services, Inc.,
1. Cease and desist from
(a) Refusing to
bargain collectively with Union of Needle Trades, Industrial and Textile
Employees, Hotel Employees and Restaurant Employee International Union, Local
100, by refusing to furnish it with information that it requests which is relevant
and necessary to the
(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 effectuate the policies of the Act.
(a) Promptly furnish
the
(b) Within 14 days
after service by the Region, post at its
(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.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not refuse to bargain collectively with Union of
Needle Trades, Industrial and Textile Employees, Hotel Employees and Restaurant
Employee International Union, Local 100.
We will not in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
We will promptly furnish the
Aramark
Services, Inc.