Aramark Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 27, 2008

29-CA-028625 (N.L.R.B. Aug. 27, 2008)

JD(NY)–33–08
Long Island City, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ARAMARK SERVICES, INC.
and Case No. 29-CA-28625
UNION OF NEEDLE TRADES,
INDUSTRIAL AND TEXTILE EMPLOYEES, HOTEL
EMPLOYEES AND RESTAURANT EMPLOYEE
INTERNATIONAL UNION, LOCAL 100
Kevin R. Kitchen, Esq., Counsel for the General Counsel
Vonda Marshall Harris, Esq., for the Respondent
Lia Fiol-Matta, Esq., Counsel 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 hereby 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 herein called the Union, alleging that Aramark Services Inc.,
herein called 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 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

1 All dates herein are 2007, unless otherwise indicated.
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business located at 1 Court Square, Long Island City, New York, herein called the Long Island
City facility, has been engaged in the business of providing food services to the public.
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 Long Island City, New York
facility goods and materials valued in excess of $5,000 directly from points located outside the
State of New York.
At all material times, Respondent has been an employer within the meaning of Sections
2(2), (6) and (7) of the Act.
At all material times, the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
The following employees of Respondent, herein called 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, 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 Respondent as the exclusive
collective bargaining representative of the Unit. Said 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 representative of the Unit for the purpose of collective
bargaining.
On September 18, 2007, the Union filed a grievance concerning Respondent’s failure to
restore the hours of the bargaining 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 & 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.
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Respondent has refused to comply to the Union’s request.
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 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 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 No. 66, ALJD slip op, at 5
(2005); NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). The duty to provide information
includes information relevant to contract administration 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 Respondent’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 ½ hour on Memorial Day and that
restoration of the ½ hour was restored on Labor Day. In this case, Respondent for the first time
argued that they could not restore the ½ hour based upon “economic conditions”.
During the course of this trial after 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
accommodation of the employer’s asserted confidentiality concerns before trial. Detroit
Newspaper Agency, 317 NLRB 1071, 1095; 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. 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 case was
not timely or appropriate, and therefore I find Respondent’s contention is without merit.
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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 Company, Inc., 352 NLRB No.15 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 Services, Inc., Long Island City, New York, its officers,
agents, successors, and assigns, shall
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
Union’s performance of its functions as the collective-bargaining representative of Respondent’s
unit employees.

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 purposes.
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(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 Union with the information it requested in its letter of September
18, 2007, October 1, 2007 and October 12, 2007.
(b) Within 14 days after service by the Region, post at its Long Island City, New York
facility, copies of the attached 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 altered, 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.
Dated, Washington, D.C. , August 27, 2008.
____________________
Howard Edelman
Administrative Law Judge

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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–33–08
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 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 Union with the information it requested in its letter of
September 18, 2007, October 1, 2007 and October 12, 2007.
ARAMARK SERVICES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 718-330-2862.