Aramark Corp.

National Labor Relations Board - Board Decisions

Feb 26, 2009

353 N.L.R.B. 993 (N.L.R.B. 2009)

ARAMARK CORP.
353 NLRB No. 98
993
Aramark Corporation1 and Union of Needle Trades,
Industrial and Textile Employees, Hotel Em-
ployees and Restaurant Employee International
Union, Local 100. Case 29–CA–28625
February 26, 2009
ORDER REMANDING
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On August 27, 2008, Administrative Law Judge How-
ard 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 Board2 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 repre-
sentative for the unit. Although the judge found that the
Respondent’s refusal to provide the requested informa-
tion 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 pre-
sented, and address the parties’ contentions in light of the
credited evidence, and the judge failed to set forth con-
clusions of law.
“Section 102.45(a) of the Board’s Rules and Regula-
tions 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.’” Webb
Furniture Enterprises, 272 NLRB 312 (1984). The
judge’s decision here does not conform with this re-
quirement and, as a result, we are unable to properly con-

1 At the hearing, the judge granted the Respondent’s motion to cor-
rect the case caption to read ARAMARK Corporation instead of
Aramark Services, Inc.
2 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.
sider the arguments contained in the exceptions and
briefs.
Accordingly, we shall remand the case to the judge for
the issuance of a second supplemental decision that re-
solves 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.
ORDER
IT IS ORDERED that this proceeding is remanded to
Administrative Law Judge Howard Edelman for the pur-
poses 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, con-
clusions of law, and a recommended Order. Following
service of the second supplemental decision on the par-
ties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.
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 deci-
sion.
On August 14, 2008, the Board issued an Order remanding
the case to the administrative law judge.
I issue this supplemental decision.
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 Un-
ion), 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 de-
meanor 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 1101
Market Street, Philadelphia, Pennsylvania, and a place of busi-
ness located at 1 Court Square, Long Island City, New York,

1 All dates herein are 2007, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD994
(the Long Island City facility), has been engaged in the busi-
ness of providing food services to the public.
During the past calendar year, which period is representative
of its operations generally, Respondent, in conducting its busi-
ness operations described above, derived gross annual revenues
in excess of $500,000. During the past calendar year, Respon-
dent, in conducting its business operations described above,
purchased and received at its Long Island City, New York facil-
ity goods and materials valued in excess of $5000 directly from
points located outside the State of New York.
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 Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
The following employees of Respondent (the unit), consti-
tute 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 em-
ployees employed at Citibank, Long Island City, New York,
excluding all vending service employees, managers, assistant
managers, clerical, supervisory and professional employees
and guards as defined in the Act.
At all material times, the Union has been recognized by Re-
spondent as the exclusive collective-bargaining representative
of the unit. The recognition has been embodied in a series of
collective-bargaining agreements, the most recent of which is
effective by its terms for the period March 1, 2005, to February
28, 2008.
At all material times, the Union, by virtue of Section 9(a) of
the Act, has been the exclusive collective-bargaining represen-
tative of the unit for the purpose of collective bargaining.
On September 18, 2007, the Union filed a grievance con-
cerning Respondent’s failure to restore the hours of the bargain-
ing unit employees.
On or about September 18 and October 1, 2007, the Union
by letter requested the following information:
In order to investigate and determine the merits of this
grievance the Union requested the following information
be provided within seven (7) days as set forth below:
1. Two years of weekly consumer counts of Café & ca-
tering.
2. Two years of weekly sales reports of Café & cater-
ing.
3. Two years of weekly time cards of all employees.
4. Two years of weekly payroll record of all employ-
ees.
5. Copy of Aramark’s current contract with Citigroup
as well as the previous contract with Citigroup.
6. Updated Bargaining Unit List, including: Social Se-
curity, Full Name, Date of Hire, Pay of Rate and Classifi-
cation.
Respondent has refused to comply to the Union’s request.
On October 3, Respondent by its manager, John Bello, re-
sponded: “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 Union sent Respondent a duplication of
its two previous requests. Respondent did not respond.
Analysis and Conclusion
The Union’s Information Request
The general principles regarding the obligation of an em-
ployer 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 du-
ties and responsibilities in representing employees. Pulaski
Construction Co., 345 NLRB 931, 938 (2005); NLRB v. Acme
Industrial Co., 385 U.S. 432 (1967). The duty to provide in-
formation includes information relevant to contract administra-
tion and negotiations. CEC, Inc., 337 NLRB 516, 518 (2002);
Barnard Engineering Co., 282 NLRB 617, 619 (1987).
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 Union.
While not presumptively relevant, I conclude requests 1 and
5 are relevant to the grievance, since they relate to Respon-
dent’s economic defense. Shoppers Food Warehouse, 315
NLRB 258, 259 (1994); and Cerico Distribution Center, 346
NLRB 1214, 1215 (2006).
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 Union’s grievance requests were confidential.
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 ac-
commodation of the employer’s asserted confidentiality con-
cerns 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 bargain-
ing obligations, as is often done by making an offer to release
information conditionally or by placing restrictions on the use
of that information. U.S. Testing, Inc. v. NLRB, 160 F.3d 14,
20 (D.C. Cir. 1998).
Accordingly, I find Respondent’s claim of confidentiality
during the Respondent’s 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:
ARAMARK CORP. 995
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 regula-
tions.
In National Broadcasting Co., 352 NLRB 90 (not reported in
Board Volumes), 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; Certco Distribution Center, supra at 2; Shoppers
Warehouse, supra at 259.
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 Corporation, Long Island City,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union of Needle
Trades, Industrial and Textile Employees, Hotel Employees and
Restaurant Employee International Union, Local 100, by refus-
ing to furnish it with information that it requests which is rele-
vant and necessary to the Union’s performance of its functions
as the collective-bargaining representative of Respondent’s unit
employees.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Promptly furnish the Union with the information it re-
quested in its letter of September 18, October 1 and 12, 2007.
(b) Within 14 days after service by the Region, post at its
Long Island City, New York facility, copies of the attached

2 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.
notice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since September 18, 2007.
(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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain collectively with Union of
Needle Trades, Industrial and Textile Employees, Hotel Em-
ployees and Restaurant Employee International Union, Local
100.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL promptly furnish the Union with the information it
requested in its letter of September 18, October 1 and 12, 2007.
ARAMARK CORP.

3 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.”