Clear Channel Outdoor, Inc.

National Labor Relations Board - Board Decisions

Mar 27, 2006

346 N.L.R.B. 696 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 66
696
Clear Channel Outdoor, Inc. and International
Brotherhood of Electrical Workers, Local 24,
AFL–CIO. Cases 5–CA–31623 and 5–CA–31732
March 27, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 10, 2005, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
and the General Counsel filed exceptions and supporting
briefs, and both parties filed answering briefs and reply
briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge's rulings,1 findings,2 and conclusions

1 The Respondent has excepted to the judge’s denial of its request
for copies of affidavits given to the Regional Office by witnesses who
were called to testify by the Respondent and not by the General Coun-
sel or the Union. We affirm the judge’s denial in accordance with the
Board’s decisions in H. B. Zachry Co., 310 NLRB 1037, 1038 (1993),
and Kenrich Petrochemicals, Inc., 149 NLRB 910, 911 fn. 2 (1964) .
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. Given the Respondent’s concession
that the subcontracting of bargaining unit work was a mandatory bar-
gaining subject, we find it unnecessary to address the Respondent’s
additional argument that the judge erred in drawing an adverse infer-
ence based on the Respondent’s refusal to turn over documents that
were relevant to that issue.
We reject the Respondent’s assertion that Sec. 10(b) of the Act pre-
cludes bringing a complaint on the unilateral subcontracting charges in
this case. The December 2003 charges and the General Counsel’s com-
plaint are premised on subcontracting that began in October 2003, well
within Sec. 10(b)’s 6-month limitation period. The Respondent admits
it did not give the Union prior notice or an opportunity to bargain over
the subcontracting that began in October. Moreover, in view of the
representations made by the Respondent’s representatives at the July
2003 bargaining session—to the effect that they were unaware of any
subcontracting being done at that time—the Respondent is estopped
from arguing that the Union knew before the start of the relevant 10(b)
period that the Respondent intended to engage in extensive subcontract-
ing of unit work beginning in October.
We also reject the Respondent’s contention that the General Coun-
sel’s failure to explicitly define what constitutes “bargaining unit work”
precludes finding a subcontracting violation. There is no dispute as to
what kind of work was done by the bill posters and the rotary crew
members who were in the bargaining unit. According to the Respon-
dent (R. Br. at 2), bill posters post advertising copy on billboards and
rotary crew members fasten advertisements to various structures, which
is the very work that the Respondent concedes (R. Br. at 6–8) it paid its
subcontractors to perform.
and to adopt the recommended Order as modified be-
low.3
We affirm the judge’s finding that the Respondent vio-
lated Section 8(a)(1) and (5) of the Act by subcontracting
out bargaining unit work without giving the Union prior
notice and an opportunity to bargain over the issue. The
General Counsel has excepted to the judge’s failure to
recommend a make-whole order as a remedy for this
violation. We find merit to this exception. Employees
testified that they saw subcontractors being assigned
work that the employees readily could have performed.
Company records also indicate that subcontractors per-
formed unit work during weeks when members of the
bargaining unit were not working the maximum number
of hours (58) they could have been assigned under the
expired contract. Furthermore, the Respondent has a
policy of paying both the bill posters and rotary crew
members for overtime. In these circumstances, we be-
lieve that it is appropriate to include a make-whole rem-
edy in the order, leaving it to the compliance stage to
determine what, if any, amount of backpay is owed indi-
vidual employees.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Clear
Channel Outdoor, Inc., Laurel, Maryland, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Before subcontracting out any bargaining unit
work, notify and, on request, bargain collectively and in
good faith with the Union as the exclusive bargaining
representative of the employees in the following appro-
priate unit:
All full time and regular part time operations depart-
ment employees of Clear Channel Outdoor, Inc. at its
Laurel, Maryland facility, but excluding all office cleri-
cal employees, all employees in sales, finance/human

3 We shall modify the judge’s recommended Order to conform to the
violations found. We shall also substitute a new notice to conform to
the modified order and to correct the judge’s inadvertent error in incor-
porating language applicable to a broad order rather than the narrow
order being issued here.
4 We reject the General Counsel’s request for an order extending the
certification year. In our view the facts in this case do not warrant such
extension. In the year following the certification, the parties by joint
agreement scheduled and held only two bargaining sessions. The Un-
ion does not allege and there is no showing that the Respondent refused
or delayed bargaining in general or engaged in surface bargaining. Cf.
St. George Warehouse, Inc. 341 NLRB 904, 908 (2004), enfd. 420 F.3d
294 (3d Cir. 2005).
CLEAR CHANNEL OUTDOOR, INC. 697
resources and realty departments, guards and supervi-
sors.”
2. Insert the following as paragraph 2(c) and renumber
the remaining paragraphs accordingly.
“(c) Make whole its unit employees for any loss of pay
or other benefits they may have suffered as a result of its
unlawful conduct in the manner set forth in Ogle Protec-
tion Service, 183 NLRB 682, 683 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).”
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 subcontract bill posting, rotary work or
other bargaining unit work, or assign such work to non-
unit employees, without giving the International Broth-
erhood of Electrical Workers, Local Union 24 timely
notice and an opportunity to bargain.
WE WILL NOT fail to respond in a timely, complete and
up-to-date manner to the Union’s requests for informa-
tion regarding the utilization of nonunit employees to
perform bill posting, rotary, or other bargaining unit
work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind all subcontracts for bill posting, ro-
tary, and other bargaining unit work and restore the
status quo by restoring the unit to where it would have
been without these unilateral changes.
WE WILL notify and, on request, bargain collectively
and in good faith with the Union as the exclusive bar-
gaining representative of the employees in the following
appropriate unit before subcontracting out any bargaining
unit work:
All of our full time and regular part time operations de-
partment employees at our Laurel, Maryland facility,
but excluding all office clerical employees, all employ-
ees in sales, finance/human resources and realty de-
partments, guards and supervisors.
WE WILL make whole any bargaining unit employees
for any loss of pay or other benefits they may have suf-
fered as a result of our unlawful conduct.
WE WILL provide a timely, complete and up-to-date re-
sponse to the Union’s request for information regarding
our use of Quantum employees to perform bill posting,
rotary work, and any other bargaining unit work.
CLEAR CHANNEL OUTDOOR, INC.
Thomas P. McCarthy, Esq., for the General Counsel.
Glenn E. Plosa, Esq. (The Zinser Law Firm), of Nashville,
Tennessee, for the Respondent.
Gabriel A. Terrasa, Esq. (Singleton & Gendler), of Owings
Mills, Maryland, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Baltimore, Maryland, on December 13–17, 2004,
and January 4, 2005. The Union, International Brotherhood of
Electrical Workers (IBEW), Local 24, filed the charges in this
matter on December 2, 2003, and February 10, 2004. The Gen-
eral Counsel issued a consolidated complaint on June 30, 2004.
The General Counsel alleges that, since October 2003, Re-
spondent has been violating Section 8(a)(5) and (1) of the Act
by assigning bargaining unit work to nonunit employees of
Clear Channel’s Quantum division, and to independent contrac-
tors. He alleges that this has been done without prior notice to
the Union, and without affording the Union an opportunity to
bargain with respect to this conduct and its effects. Respondent
contends that it has maintained the status quo that existed prior
to the Union’s certification, that under the expired collective-
bargaining agreement it was entitled to subcontract and assign
this work to Quantum employees, that the Union waived its
bargaining rights and that any violation of Section 8(a)(5) in
this regard was de minimus.
The General Counsel also alleges that Respondent violated
Section 8(a)(5) by failing to respond in a timely manner to the
Union’s request for information regarding the performance of
bargaining unit work by Quantum employees. Finally, he al-
leges that Respondent violated Section 8(a)(1) on December 10,
2003, when Operations Director Joseph Kroeger told employ-
ees that he was angry about the filing of the charge in Case 5–
CA–31623 and interrogated them as to why they had filed the
charge rather than speaking directly to him.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD698
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Charging Party I
make the following
FINDINGS OF FACT
I. JURISDICTION
Clear Channel Communications, Inc., a corporation, has a
number of divisions, including a broadcast division and an
outdoor advertising division. The Respondent in this matter is
Clear Channel Outdoor, Inc., the advertising division. Clear
Channel Outdoor has approximately 50 branches, including the
one involved in this case, the Baltimore/Washington Metroplex
in Laurel, Maryland. Branch employees place advertising copy
on billboards and similar structures in the Baltimore, Maryland,
and Washington D.C. metropolitan areas. In the year prior to
the filing of the complaint, Clear Channel Outdoor, Inc., pur-
chased and received goods at its Laurel facility valued in excess
of $50,000 directly from points outside the State of Maryland.
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union, IBEW Local 24, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Historical Background
On January 1, 2001, Clear Channel Outdoor, Inc. purchased
the stock of Eller Media Company, which operated an outdoor
advertising business from facilities in Baltimore and Hyatts-
ville, Maryland. Respondent legally changed the name of the
corporation in July 2001. Employees working out of the Hy-
attsville office generally worked in the Washington, D.C. met-
ropolitan area; the Baltimore employees generally worked
within that metropolitan area and to the north and west. A
number of other companies had operated this business prior to
Eller Media. The Union has represented a unit of the Baltimore
employees since at least 1989.
In the second half of 2001, Respondent moved its Baltimore
employees and its Hyattsville (Washington, D.C.) employees
into a single facility in Laurel, Maryland, halfway between
Baltimore and Washington. These employees included bill-
posters and rotary employees,2 who were represented by IBEW
Local 24 in Baltimore, and by Local 1937 of the International
Brotherhood of Painters and Allied Trades in the Washington
area. The billposters generally work alone posting advertising
copy which is affixed to a wall, sign, or similar surface with
glue. The rotary employees work in crews, and generally erect
vinyl signs on larger billboards by wrapping the vinyl material
around the billboard and securing the sign to the billboard. The
rotary employees often use a crane or similar device in placing
the advertising copy. Prior to the move to Laurel, there were
two rotary crews working in Baltimore and one in the Washing-

1 There are two versions of volume 1 of the transcript. The latest
and more accurate is numbered pp. A1 to 253. Tr. A38,ll. 20 and 21
should read, Courier Journal.
2 Rotary employees are also sometimes referred to as “construction
employees.”
ton, D.C. area. Soon after the move, only one rotary crew
worked in the Baltimore area.
Respondent entered into a collective-bargaining agreement
with IBEW Local 24, which ran from February 1, 2001, until
January 31, 2002. The agreement continued in effect until
January 31, 2003, when it expired. In February 2002, the for-
mer Washington, D.C. employees voted to decertify the Paint-
ers Union. Afterwards, while the Baltimore employees work-
ing out of the Laurel facility were represented by Local 24, the
former Washington (Hyattsville) employees were unrepre-
sented.
On January 30, 2003, after an attempt to negotiate a succes-
sor collective-bargaining agreement with Respondent, the Un-
ion filed a petition with the NLRB to represent all garage, elec-
trical, billposting, and construction (i.e., rotary) department
employees at Laurel, which included both former Baltimore
and Washington, D.C. employees. The Union won a represen-
tation election and was certified on April 8, 2003. The certifi-
cation was corrected in March 2004, to describe the bargaining
unit as all full-time and regular part-time operations department
employees. This includes the billposters, rotary crew workers,
a bill room attendant, a warehouse attendant, and a mechanic.
On May 5, 2003, Respondent fired three members of the
Washington, D.C. rotary crew for falsifying their timecards.3
Later, it rehired Jason Lynn, one of the terminated employees.
Also in about May 2003, Respondent terminated the employ-
ment of the Baltimore/Washington Metroplex branch president,
Don Scherer. Charles Turner replaced Scherer as branch presi-
dent in June 2003.
When Turner arrived at the Laurel facility, Johnny Cifolilli
was the operations manager of the Baltimore/Washington
Metroplex and the Laurel branch of Quantum, a Clear Channel
division that builds and upgrades billboards and similar struc-
tures.4 Turner relieved Cifolilli of his responsibilities for the
Baltimore/Washington Metroplex (i.e., the posting of advertis-
ing copy) and assumed those responsibilities himself. Cifolilli
remained the operations manager of the Quantum branch at
Laurel, which is housed in the same building as the Metroplex.
In September, Turner hired Joseph Kroeger to be operations
manager of the Metroplex. In October 2003, Turner ordered
Kroeger to obtain help from other Clear Channel divisions and
to develop a network of independent contractors to put up ad-
vertising copy. Kroeger sent a mass email to managers of Clear
Channel Outdoor and Quantum asking for employees to per-
form billposting and rotary work. Neither Turner, Kroeger, nor
any other representative of Respondent informed the Union that
it was doing so.
Pursuant to Kroeger’s request, the Quantum division of Re-
spondent loaned Kroeger four employees to perform billposting
work in October 2003; three of these employees worked out of
the Quantum Laurel facility; one came from a Quantum divi-
sion in Cleveland, Ohio. Quantum employees also performed
billposting work for Respondent during the week of February 9,

3 At pp. 6, 8, and 26 of its brief, Respondent misstates the date of the
termination of these employees as March 29, 2002, rather than the
correct date of May 2003.
4 The Laurel branch of Quantum is 1 of 10 such branches.
CLEAR CHANNEL OUTDOOR, INC. 699
2004, and performed rotary work throughout the spring and
summer of 2004.
On October 22, 2003, Clear Channel Outdoor, Inc. entered
into an independent contractor agreement with John F.
Flanagan, trading as Rejo & Rash.5 Flanagan began performing
billposting work for Respondent on a recurring basis on or
about that date. He continued to do so until October or No-
vember 2004.
On December 13, 2003, Clear Channel Outdoor, Inc. entered
into an independent contractor agreement with John Klem,
doing business as Service Outdoor, Inc. Klem has three em-
ployees and his company has performed both rotary and bill-
posting work on a recurring basis for Respondent, primarily in
the metropolitan Washington, D.C. area.
Respondent acquired about 450 billboard faces on January 1,
2004 in an asset swap with Next Media Corporation. After-
wards, it owned a total of about 2000 billboard faces. In ex-
change for its billboards in the Baltimore area, Next Media
acquired some of Respondent’s billboards in South Carolina.
Respondent began using the independent contractors that Next
Media had used to place advertising copy on its newly acquired
billboards.
On January 7, 2004, Clear Channel Outdoor, Inc. entered
into an independent contractor agreement with Coremedia,
owned by Walter Feeser. Since that time Coremedia has per-
formed billposting work on a recurring basis for Respondent, as
well as rotary work.
On January 30, 2004, Clear Channel Outdoor, Inc. entered
into an independent contractor agreement with Lavin Sign
Company, owned by Thomas Lavin. Since that time Lavin has
performed a high percentage of Respondent’s billposting and
rotary work in Frederick and Carroll counties, which are lo-
cated to the northwest of Baltimore (Tr. A168, A505).
None of these independent contractors performed billposting
or rotary work for Respondent prior to October 2003. Indeed,
Donald Scherer, branch president prior to Charles Turner, in-
structed his operations manager, Johnny Cifolilli, that he was
not to subcontract any billposting or rotary work (Tr. 1150).6
Respondent did not notify the Union that it was entering into
these contracts or that it was subcontracting significant amounts
of billposting and rotary work. It never asked the Union to
procure new employees or offered the Union an opportunity to
bargain about this subcontracting or its effects.
The rotary crew operating in the Washington, D.C. metro-
politan area was involved in a serious traffic accident in March

5 The fact that Clear Channel Outdoor, Inc. entered into contracts
with several independent contractors to perform billposting and rotary
work in the Baltimore/Washington area belies Respondent’s contention
that only the Baltimore/Washington branch may be designated as a
party to this matter. Moreover, Clear Channel Outdoor, Inc.’s execu-
tive vice president for operations, Michael Deeds, was one of the mem-
bers of Respondent’s team in collective bargaining with the Union and
was present when the Union made the information request at issue in
this case.
6 Scherer was still branch president as of the date of the representa-
tion hearing in February or March 2003 (GC Exh. 10, p. 3).
2004.7 Since that time most of Respondent’s rotary work in the
Washington, D.C. area has been done by independent contrac-
tors, including Service Outdoor, Inc., Coremedia, and Lavin
Sign Company.8
B. The Expired Collective-Bargaining Agreement and
Respondent’s use of Quantum Employees Prior to the
Certification of the New Bargaining Unit
Article V, the management-rights provisions of the collec-
tive-bargaining agreement between Respondent and the Union,
which covered employees who had previously worked out of
the Baltimore facility, expired on January 31, 2003. Article V,
section 3 (GC Exh. 6, p. 13) provides:
The Employer shall have the sole and exclusive right to sub-
contract work. The Employer shall not subcontract, assign or
transfer any work covered by this Agreement to any other per-
son, firm or corporation if such subcontracting, assigning or
transfer will cause the loss of work opportunities for the em-
ployees then employed, except that these restrictions shall not
apply where the Employer does not have the equipment, fa-
cilities, or qualified employees, to perform the required work
or where the performance deadline specified by a customer
contract prevents the completion of required work or portions
of the work by the employees with the required skills within
the time period necessary to assure fulfillment of the contract
deadline, provided that those same employees are requested to
be on a fifty-eight (58) hours per week work schedule during
the time period of the subcontract, assignment or transfer of
work. Installation and removal of all equipment relating to
the industry will be performed by bargaining unit personnel,
except when the mechanical and technical assistance is
needed to complete the job.
Section 4 provides:
No Supervisor, employer, member of the firm or employee
excluded from the bargaining unit shall be permitted to per-
form work covered by this agreement except that it is recog-
nized that it shall be permissible for such persons to perform
work under conditions such as the following:
a. in an emergency situation (i.e., injured employee,
employees out sick, employees on vacation during heavy
workload (this list is by way of example and not exclu-
sive);
b. in the course of instruction or training of employ-
ees;
c. work of an experimental or start-up nature;
d. where the remote geographic location of a non-
outdoor advertising display causes the changing of adver-
tisements exclusively by bargaining unit personnel to be
economically inefficient in the judgment of the Employer.
It is further understood that management representatives
may assist bargaining unit employees in the performance

7 Respondent’s brief at p. 32 misstates the date of the accident as
March 13, 2003, rather than the correct date in March 2004.
8 Between March and September 2004, 90 percent of the D.C. rotary
work was performed by independent contractors (Tr. 808).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD700
of any required installation and/or maintenance work at
“one-sheet” locations.
Section 12 of article V deals specifically with Quantum:
Eller Media Co. has a division called Quantum. This division
fabricates and builds new structures, performs maintenance
and safety upgrades on existing structures and other construc-
tion type work. Not withstanding any other provision of the
parties’ collective bargaining agreement, the Company shall
have the right to utilize Quantum in any manner described;
however Quantum employees will not be used to perform ro-
tation, billposting or garage assignments currently performed
by employees covered by this Agreement.
As set forth earlier in this decision, there is no evidence that
Respondent subcontracted billposting or rotary work prior to
the certification of the Union in the new bargaining unit in
April 2003. However, there is evidence that, on occasion,
Quantum employees performed such work.
Johnny Cifolilli was operations manager for both the Balti-
more/Washington Metroplex and the Quantum branch in Laurel
prior to June 2003. He testified to billposting and rotary work
performed by Quantum employees with some degree of uncer-
tainty as to whether the work was performed before or after the
filing of representation petition (Tr. 1145–1150).
When asked if he was aware of any Quantum employees do-
ing billposting or rotary work, Cifolilli mentioned Larry Lynn
and unnamed Quantum employees who worked on a rotary
crew changing advertising copy on a wall on Light Street in
Baltimore every 45 days on a Saturday. Cifolilli also testified
that a Quantum employee from its Salisbury, Maryland office
performed billposting work on an unspecified number of occa-
sions. Cifolilli, after some hesitation, testified that Quantum
employees worked on the Saturday Light Street rotary crew,
every 45 days in “2002 until 2003, the whole time that I was
there.” It is not clear whether Larry Lynn performed billpost-
ing or rotary work other than working on this crew.
Quantum employees apparently performed rotary work in the
Baltimore area on September 19 and 21, 2001. On September
19, they were assisted by a Clear Channel employee from
Salisbury, Maryland (GC Exh. 9).9 On October 3, 2001, Re-
spondent’s branch president, Don Scherer, wrote Charles
Weakley, the Union’s business representative, who had met
with him a few days previously regarding grievances the Union
filed about Respondent’s use of Quantum. In his letter,
Scherer stated:
We have opposing views on the Quantum issue (their
use in times when I must get the work out and lack the
manpower to achieve the installation goals of our advertis-
ers). With that said, I can assure you I will not use them in
the future unless all other avenues are exhausted. This in-
cludes overtime for the rotary crews. I appreciate your
agreeing to look at a win-win compromise to our existing
grievances (#3 and #4).
In my offer for compromise I propose the following:

9 It is unclear whether this is the same Quantum employee about
whom Cifolilli testified or a different employee.
1. I will offer immediate overtime to any man that
lost overtime opportunity during the week of
Monday, September 17th through Saturday,
September 22nd.
2. The overtime will be afforded the men during
the week of October 8–12, 2001.
3. The use of Quantum or any other outside ven-
dor for the purpose of installation and rotation
of billboards will not occur unless the men are
offered full overtime opportunity and the needs
of the advertisers still cannot be met with re-
gard to installation dates and rotary moves.
This gesture of compromise should not be interpreted
as admittance of any breach of contract mentioned in
grievances #3 and #4 [R. Exh. 7].
The Union also attempted to file grievances with Respondent
alleging bargaining unit work by nonunit employees on January
12, 18, and March 1, 2002. Respondent refused to process
these grievances. In response, the Union filed an unfair labor
practice charge, which resulted in the filing of a complaint by
the General Counsel on June 28, 2002 (GC Exhs. 9 and 33).
Respondent and the Union entered into a non-Board settlement
agreement whereby Clear Channel did not admit to violating
the Act, but paid seven employees 2 days pay of straight time.
Pursuant to this agreement, the Union withdrew its charge (GC
Exh. 23).
C. Alleged Failure to Timely Comply with the Union’s
Information Request (Complaint Par. 13)
On July 30, 2003, representatives of Respondent and the Un-
ion met in their first bargaining session since the certification of
the Union as collective-bargaining representative for all opera-
tions department employees at Laurel. Respondent’s attorney,
Michael Zinser, and Michael Deeds, the executive vice presi-
dent for operations of Clear Channel Outdoor, Inc., represented
Respondent. Branch Manager Charles Turner briefly attended
the session, primarily to introduce himself. The Union was
represented primarily by Attorneys John Singleton and Gabriel
Terrasa, and Business Representative Charles Weakley.
Terrasa’s uncontradicted testimony is that he asked Zinser if
Quantum employees were performing unit work. Zinser replied
that he didn’t know. Zinser asked Deeds, who said he didn’t
know either. Zinser then said that he would find out if Quan-
tum had performed bargaining unit work and get back to the
Union.
Among a series of letters between Terrasa and Zinser is a let-
ter dated October 14, 2003, in which Terrasa forwarded infor-
mation that Zinser had requested regarding the Union’s pension
and health insurance plans. Terrasa also wrote:
Finally, please note that I have not received a response from
you regarding the bargaining unit work being performed by
employees of Quantum. The Union raised the issue in our
prior bargaining session and you indicated you were not
aware of it and needed to look into it. I have been informed
that Quantum employees continue to perform bargaining unit
work. Please indicate what is your client’s position on that is-
sue. [GC Exh. 17.]
CLEAR CHANNEL OUTDOOR, INC. 701
At the next bargaining session, on March 4, 2004, Terrasa
mentioned that he had not received the information he had re-
quested regarding Quantum. Zinser stated that he didn’t know
to what information request Terrasa was referring. When Ter-
rasa mentioned his October 14 letter, Zinser replied that he had
never received this letter. At a bargaining session the next day,
Terrasa gave Zinser a copy of the October 14 letter and told
him that the Union wanted to know what work Quantum was
doing in the bargaining unit. Zinser told Terrasa that he would
look into the matter.
Six months later on September 28, 2004, Zinser responded.
He reiterated that he first received Terrasa’s October 14, 2003
letter at the March 5, 2004 bargaining session. Zinser also
stated that he believed Respondent did not owe the Union any
information at the end of the July 30, 2003 session. With re-
gard to the request, Zinser stated:
. . . from May 2003 to June 2003, Quantum performed ro-
tary assignments in Washington due to three employee va-
cancies. Baltimore unit employees were offered the work
but declined it.
In the week of October 5, 2003, four employees of
Quantum performed billposting for the entire week.
On October 22, 23, and 24, 2003, three individuals
from Quantum performed billposting.
This constitutes the full amount of work performed by
Quantum in 2003, and more than responds to your July 30,
2003 information request. This performance of billposting
by Quantum is in complete conformity with the estab-
lished status quo and/or past practice. [GC Exh. 19.]
Zinser’s letter did not address billposting work performed by
Quantum employees during the week of February 9, 2004, or
rotary work performed by Quantum employees during the
months of May–July 2004 (Tr. A177–180).
D. Alleged 8(a)(1) Violations by Joseph Kroeger on
December 10, 2003 (Complaint Pars. 8(a) & (b))
Respondent’s operations manager, Joseph Kroeger, con-
ducted two safety meetings for two different groups of employ-
ees on the morning of December 10, 2003. One meeting was
attended primarily by rotary crew employees and the other by
billposters. At the beginning of at least one of these meetings,
Kroeger held up the unfair labor charge in Case 5–CA–31623
and told assembled employees either that he was disappointed,
upset, angry, or “pissed off” and asked the group why whoever
was responsible for the filing of the charge had not spoken to
him first before filing the charge.
III. ANALYSIS
A. The Alleged 8(a)(5) Violation
1. Respondent’s subcontracting of billposting and rotary
work and/or the transfer of such work to nonunit Quantum
employees, without notifying the Union and providing it with
an opportunity to bargain, violated Section 8(a)(5) and (1)
Generally, when parties, such as Respondent and the Union
in the instant matter, are engaged in negotiations for a collec-
tive-bargaining agreement, an employer’s obligation to refrain
from unilateral changes in the wages, hours, and other terms
and conditions of employment of bargaining unit employees
extends beyond the duty to provide notice to the Union and an
opportunity to bargain about a subject matter. It encompasses a
duty to refrain from implementing such changes at all, absent
overall impasse on bargaining for the agreement as a whole,
Bottom Line Enterprises, 302 NLRB 373 (1991). There are
exceptions to this general rule. When a union engages in tac-
tics designed to delay bargaining or when economic exigencies
compel prompt action, an employer may be entitled to imple-
ment such unilateral changes. However, even when “economic
exigencies compelling prompt action” justify unilateral
changes, the employer must provide the union adequate notice
and an opportunity to bargain, RBE Electronics of S.D., Inc.,
320 NLRB 80, 82 (1995). The prohibition against making
unilateral changes during collective-bargaining negotiations
only applies to mandatory subjects of bargaining.
2. Respondent conceded that the subcontracting and
assignment of billposting and rotary work to nonunit
employees in the instant case is a mandatory subject of
bargaining. Moreover, Respondent is estopped from
arguing that its decision, to subcontract and/or transfer
billposting and rotary work to nonunit employees, is
not a mandatory subject of bargaining
On December 1, 2004, the General Counsel served a sub-
poena duces tecum on Charles Turner, the president of Respon-
dent’s Baltimore/Washington branch, directing Turner to bring
numerous documents to the December 13, 2004 hearing. Re-
spondent filed a petition to revoke many portions of the sub-
poena on December 9, 2004.
Paragraph 43 of the subpoena duces tecum required Turner
to bring the following documents to the hearing:
All documents since June 1, 2000, which set forth Respon-
dent’s policy concerning assignment of IBEW, Local 24 bar-
gaining unit work and/or the subcontracting or assignment of
such work to individuals outside the bargaining unit, includ-
ing all documents that show or indicate the business reason(s)
and/or labor cost considerations that motivated Respondent’s
decision(s) to subcontract or assign bargaining unit work to
employees outside the bargaining unit, including the names of
all individuals of Respondent or from Respondent’s Quantum
division, who made or participated in each decision to sub-
contract or assign bargaining unit work to employees outside
the bargaining unit. Also requested are any and all documents
disclosing Respondent’s communications with the [Union]
regarding these subcontracting and assignment decisions and
policies.
Respondent sought revocation of paragraph 43 in part on the
grounds that the documents requested were not relevant to the
proceeding. I did not grant Respondent’s petition to revoke
with regard to the documents requested in paragraph 43. Three
and half hours were spent on the first day of the hearing dis-
cussing Respondent’s petition. Respondent’s counsel insisted
that its motives for subcontracting were irrelevant and repeat-
edly resisted producing the documents requested in paragraph
43. Ultimately, the General Counsel agreed not to demand
production of these documents on the understanding that Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD702
spondent’s subcontracting in this case was a mandatory subject
of bargaining. I draw an adverse inference from Respondent’s
refusal to produce the subpoenaed documents that they would
show that labor cost considerations were a material considera-
tion in its decision to subcontract bargaining unit work and
assign such work to Quantum employees, rather than rehire unit
employees who had been terminated, hire new employees, or
increase the amount of work offered to unit employees.10
Moreover, with four exceptions, Respondent waived any
contention that it had a right to subcontract and/or assign bill-
posting and rotary work to Quantum employees without notify-
ing the Union and offering it an opportunity to bargain. These
exceptions are: (1) that it maintained the status quo; (2) that it
was entitled to subcontract and assign such work to Quantum
employees by virtue of the management rights article in the
expired collective-bargaining agreement; (3) the Union waived
its right to bargain over subcontracting and transfer of unit
work to Quantum employees; and (4) to the extent it violated
the Act, the violation was de minimus (Tr. A23, A27, A30,
A31, A35, A97–A102; 1198–1204).
3. Respondent’s subcontracting and assignment of billposting
and rotary work to nonunit employees is a mandatory subject of
bargaining under longstanding Board precedent
In Torrington Enterprises, 307 NLRB 809 (1992), the Board
rendered a comprehensive opinion on the issue of whether the
unilateral subcontracting of bargaining unit work is a manda-
tory subject of bargaining and thus violative of Section 8(a)(5)
and (1). Interpreting the U.S. Supreme Court decisions in Fi-
breboard Corp. v. NLRB, 379 U.S. 203 (1964), and First Na-
tional Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), the
Board held that Torrington violated the Act in laying off two
bargaining unit employees and replacing them with nonunit
employees and independent contractors—without giving prior
notice to the union and providing the union with an opportunity
to bargain about the decisions and their effects on the unit em-
ployees.
The Torrington Board found that since respondent’s decision
to subcontract and transfer work to a nonunit employee had
nothing to do with a change in the scope and direction of its
business, but merely changed the identity of the employees
doing the work, it was required to provide the union with notice
and an opportunity to bargain before making such decisions.
The Board reiterated this view in Acme Die Casting, 315 NLRB

10 Respondent also refused to turn over documents not in the posses-
sion of the Baltimore/Washington branch, including documents in the
possession of Quantum and Clear Channel Outdoor, Inc. It’s refusal to
do so has no merit. In responding to a subpoena, an individual is re-
quired to produce documents not only in his or her possession, but any
documents that he or she had a legal right to obtain, Compare, Searock
v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984); Resolution Trust Corp.
v. Deloitte & Touche, 145 F.R.D. 108 (U.S.D.C. D. Co. 1992) (the
standard under Rule 34 of the Federal Rules of Civil Procedure). Pur-
suant to Sec. 8(a)(5), an employer must at least demonstrate that it is
unable to obtain documents that are not in its possession that are the
subject of a union’s information request; compare, Congresso de Un-
iones Industriales de Puerto Rico v. NLRB, 966 F.2d 36 (1st Cir. 1992);
United Graphics, 281 NLRB 463 (1986) (an employer’s obligation in
responding to a union information request).
202 (1994). Member Cohen, who had not been on the Torring-
ton Board, emphasized that he did not read Torrington as
broadly as his colleagues. He opined that subcontracting is
only a mandatory subject of bargaining if based on matters that
are amendable to collective bargaining, such as labor costs.
In Dorsey Trailers, Inc., 321 NLRB 616 (1996), enf. denied
134 F.3d 125, 130 (3d Cir. 1998), the Board, with one member
dissenting, also found that the employer violated the Act in
subcontracting without giving the union notice and an opportu-
nity to bargain. The Board found that the decision to subcon-
tract was motivated in part by labor costs, i.e., a desire to re-
duce overtime to zero. This Board deemed the subcontracting
to be a mandatory subject of bargaining because it had merely
shifted work from unit employees to subcontractor employees
without changing the nature of the work, and therefore without
changing the scope or direction of its business. Member
Cohen, dissenting in part, opined that the record did not support
a finding that Respondent’s motive for subcontracting was
reducing overtime and that unless a decision to subcontract was
motivated by such labor-cost considerations, it was not a man-
datory subject of bargaining.
In Overnite Transportation Co., 330 NLRB 1275 (2000), an-
other Board majority held that subcontracting, motivated by
nonlabor cost considerations, may not be a mandatory subject
of bargaining in cases in which the decision relates to a change
in the scope and direction of the employer’s business. This
Board also found that a decision to subcontract may be a man-
datory subject of bargaining even when no current unit employ-
ees lose their jobs.
We think it plain that the bargaining unit is adversely affected
whenever bargaining unit work is given away to nonunit em-
ployees, regardless of whether the work would otherwise have
been performed by employees already in the unit or by new
employees who would have been hired into the unit. [330
NLRB at 1276.]
Member Hurtgen dissented, opining that, “Torrington Indus-
tries was wrongly decided.”11 He stated further that the Board
must weigh the benefit for labor-management relations and the
collective-bargaining process against the burden placed on the
conduct of the employer’s business. Given the fact that none of
the Overnight employees were replaced or laid off, Overnight
was not required, in Member Hurtgen’s view, to notify the
Union or offer it the opportunity to bargain over its decision to
subcontract.
In two very recent decisions, Sociedad Espanola de Auxilio
Mutuo y Beneficencia, de P. R., 342 NLRB 458 (2004), and St.
George Warehouse, Inc., 341 NLRB 904 (2004), the current
Board has reaffirmed the holdings in Torrington, Dorsey, and
Overnite. St. George Warehouse involves facts very similar to
the instant case. Sometime after the union won a representation
election, St. George decided to stop hiring new employees and

11 The United States Court of Appeals for the Third Circuit has re-
jected the Torrington formulation at least twice, Furniture Rentors of
America, Inc. v. NLRB, 36 F.3d 1240 (3d Cir. 1994); Dorsey Trailers,
Inc. v. NLRB, 134 F.3d 125 (3d Cir. 1998). Nevertheless, I am obli-
gated to adhere to NLRB precedent.
CLEAR CHANNEL OUTDOOR, INC. 703
to use temporary agency employees instead. As unit employees
quit or were fired for cause, St. George did not replace them.
As a result, the bargaining unit decreased from 42 to 8 within a
very short period of time. Judge Stephen Davis, whose deci-
sion was affirmed by the Board with regard to this issue, wrote:
The Respondent’s actions in substituting agency employees
for its bargaining unit employees as they leave their employ-
ment will make it possible for it to eliminate the existing bar-
gaining unit and dilute its bargaining strength. Eventually . . .
as each unit employee leaves his job, a temporary agency
worker will replace him. Ultimately, the unit will be elimi-
nated. Absent discriminatory intent, nothing in the law pre-
vents the Respondent from making and implementing that de-
cision. What the law requires is that it first offer to bargain
about such a decision. [341 NLRB 904, 1014–1015.]
In the instant case, no employee lost his job due to subcon-
tracting or use of Quantum employees. Also, it appears that no
current employee suffered a loss of wages. However, there
were issues amenable to the collective-bargaining process. For
one thing, Respondent and the Union could have negotiated an
increase in the number of bills to be posted by each billposter.
Secondly, Respondent and the Union could have negotiated
regarding offering reemployment to bargaining unit members
who had been terminated. Employees Matthew Donnick, Leo-
nard Ramsey, and Jason Lynn were terminated on May 10,
2003. However, Respondent indicated that each of these em-
ployees was eligible for rehire and indeed it rehired Lynn. Had
Respondent offered the Union an opportunity to bargain over
subcontracting, it is possible that it could have recalled Don-
nick and Ramsey and possibly other employees, rather than
subcontracting what had previously been bargaining unit work,
University of Pittsburgh Medical Center, 325 NLRB 443
(1998), enfd. 182 F.3d 904 (3d Cir. 1999).12
4. Respondent’s justifications for subcontracting and
assigning bargaining unit work to nonbargaining unit
employees, without providing the Union notice and an
opportunity to bargain, are without merit
Respondent implemented material changes after the certifi-
cation of the Union both with regard to subcontracting and the
use of Quantum employees to perform bargaining unit work.
I turn now to Respondent’s contentions. As noted earlier,
Respondent articulates four reasons for which it argues it was
entitled to subcontract and assign unit work to Quantum em-
ployees without notifying the Union and offering it an opportu-
nity to bargain. The first contention is that Respondent was
merely maintaining the status quo that existed prior to certifica-

12 Respondent fired Robert Glenn Hall, a unit billposter, who had
worked for 13 years for Respondent and its predecessors, in December
2003. His termination notice indicates that he is not eligible for rehire.
However, it is unclear how his violation of company policy and dishon-
esty differs materially from that of Jason Lynn, who Respondent re-
hired.
Earl Williams, who performed billposting work for subcontractor
Service Outdoor, is apparently a former bargaining unit member who
had also been terminated. The parties could have negotiated the rehir-
ing of Williams as a bargaining unit member, as opposed to having him
performing bargaining unit work as an employee of a subcontractor.
tion. In this regard, there is no evidence that Respondent sub-
contracted bargaining unit work prior to the certification of the
Union in April 2003. The widespread use of subcontractors
was initiated in October 2003, by Joseph Kroeger at the direc-
tion of Branch President Charles Turner. Respondent’s use of
Quantum employees prior to the certification was very limited
and several instances was the subject of grievances and unfair
labor practices charges, which were settled by Respondent.
Thus, I conclude Respondent cannot rely on these isolated in-
stances of its prior use of Quantum to establish a past practice
that it was entitled to continue without prior notice and an op-
portunity to bargain.
5. Respondent was not entitled to subcontract or assign
bargaining unit work to Quantum employees pursuant
to its collective-bargaining agreement with the Union,
after that agreement had expired
A management-rights clause in a collective-bargaining
agreement and any waivers contained therein do not survive the
expiration of the contract—absent some evidence of the parties’
intentions to the contrary. Thus, any waiver of a union’s bar-
gaining rights that relies on a management rights clause, such
as the one instant case, is limited to the time the contract is in
force, Furniture Rentors of America, 311 NLRB 749, 751
(1993), enf. denied 36 F.3d 1240 (3d Cir. 1994); Pan American
Grain Co., 343 NLRB 318 (2004). There is no evidence in this
case that the parties intended that the waivers contained in the
management-rights provisions would survive the expiration of
their collective-bargaining agreement on January 31, 2003.
6. There is no evidence that the Union waived its right to
bargain over the subcontracting of bargaining unit work
or the assignment of such work to Quantum employees
after the certification of the Union
To be effective, a waiver of statutory bargaining rights must
be clear and unmistakable. Wavier can occur in any of three
ways, by express provision in a collective-bargaining agree-
ment, by the conduct of the parties (including past practices,
bargaining history, and action or inaction) or by a combination
of the two. In a case where the parties have not concluded their
first collective-bargaining agreement, the Board decides the
waiver issue solely on the evidence of the parties’ conduct,
American Diamond Tool, 306 NLRB 570 (1992).
In the previous subsection, I have dismissed Respondent’s
argument that it was entitled to subcontract bargaining unit
work and assign it to Quantum employees because the terms of
the parties’ expired collective-bargaining agreement constituted
a waiver. Nothing in the record permits the inference that the
Union waived its bargaining rights on the basis of its conduct.
On July 30, 2003, in its first bargaining session with Re-
spondent following certification, the Union submitted a pro-
posed collective-bargaining agreement (GC Exh. 19(c)). The
Union’s proposal differed significantly from the expired
agreement with regards to subcontracting and the use of non-
unit employees to perform bargaining unit work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD704
Section 2.05 of the Union’s proposal (GC Exh. 19(c), p. 7) is
entitled, “work preservation” and essentially proposes to make
the terms of the collective-bargaining agreement applicable to
all bargaining unit work performed by employees whose em-
ployer has any relationship with Respondent, such as Quantum.
Section 2.09 (p. 9) proposes to prohibit any subcontracting of
bargaining unit work to anyone not recognizing the IBEW or
one of its local unions as the collective-bargaining representa-
tive of its employees.
Thus, the Union clearly preserved its bargaining rights on the
issues of subcontracting and use of Quantum employees to do
bargaining unit work. Moreover, an employer cannot imple-
ment a change and then claim that a union waived its right to
bargain by failing to do so retroactively, Intersystems Design
Corp., 278 NLRB 759 (1986). “To be timely, the notice must
be given sufficiently in advance of actual implementation of the
change to allow a reasonable opportunity to bargain,” Ciba-
Geigy Pharmaceuticals Division, 254 NLRB 1013, 1017
(1982).
In the instant case, Respondent failed to give the Union
timely notice of its decision to subcontract or to assign bargain-
ing unit work to Quantum employees. Respondent never noti-
fied any union official of its decision to subcontract bargaining
unit work. Some rank-and-file employees noticed that John
Flanagan was doing billposting work in October or November
2003.13 However, by that time, Respondent had decided to
enter into a contractual relationship with Flanagan and may
have already executed the contract. Under these circumstances,
I find that Respondent presented the Union with a “fait accom-
pli” and that therefore Respondent is precluded from justifying
its subcontracting decision on the failure of the Union to renew
its request to bargain over the subcontracting of bargaining unit
work, Pontiac Osteopathic Hospital, 336 NLRB 1021, 1023–
1024 (2001).
Insofar as Quantum is concerned, the Union had an out-
standing information request regarding the use of Quantum
employees to perform bargaining unit work in October 2003,
when Respondent made its first use of these employees since
the certification. As Respondent had failed to comply with the
Union’s request for information on this issue, it is precluded
from asserting a waiver of its bargaining rights by the Union.
Moreover, section 2.05 of the Union’s July 30, 2003 proposal
establishes that the Union was not waiving its right to bargain
over Respondent’s use of Quantum employees to perform bill-
posting or rotary work.14

13 Union Steward Gerry Michael testified that he heard rumors that
Respondent was using independent contractors prior to December
2003, but did not have firsthand knowledge of this fact until December
when he encountered John Klem and Earl Williams at Respondent’s
Laurel facility.
14 At pp. 32 and 33 of it’s brief, Respondent argues that portions of
the complaint should be dismissed pursuant to Sec. 10(b) of the Act.
This argument is based on the erroneous statement that the D.C. crew’s
accident occurred in March 2003. In fact this accident occurred in
March 2004, several months after the Union filed its charge regarding
the use of subcontractors.
7. Respondent’s failure to offer the Union an opportunity
to bargain prior to subcontracting bargaining unit work
was a material and substantial violation of the Act
Respondent contends that to the extent it may have violated
Section 8(a)(5), such violation was not material and substantial,
but to the contrary was de minimus. I conclude otherwise.
Respondent’s failure to offer the Union an opportunity to bar-
gain denied the unit billposters of the potential to work longer
hours, post more bills, and increase their earnings. Moreover, it
denied the Union the opportunity to bargain about recalling
previously terminated employees, some of whom were, by
Respondent’s determination, eligible for rehire. Finally, by not
providing the Union with an opportunity to bargain about the
preservation of what had been bargaining unit work at the time
of its certification, Respondent materially undercut the Union’s
negotiating strength, St. George’s Warehouse, supra, Overnite,
supra.
8. Respondent’s use of Quantum and its subcontracting
was not justified by extraordinary events which required
prompt action negating its obligation to give notice and
an opportunity to bargain
Respondent’s business is the timely posting of advertising
copy. As Respondent’s brief concedes at page 38, “this stan-
dard was nothing new.” That Respondent often fell behind in
posting bills and rotating advertising copy was also nothing
new. There was no economic emergency that required Re-
spondent to bypass the Union and unilaterally shift bargaining
unit work to subcontractors. After firing three unit members of
the D.C. crew in May 2003, Respondent initially used Quantum
employees to perform much of their work. Then, apparently in
response to the Union’s inquiries on July 30, 2003, Respondent
stopped utilizing Quantum employees for this purpose and
indeed hired two Quantum employees, Russell Mellion and
Darryl Jones, into the bargaining unit in September 2003 (GC
Exh. 33; Tr. 1096).15 In October 2004, Respondent hired bill-
poster Larry MacDonald, who transferred either from Respon-
dent’s or Quantum’s office in Orlando, Florida (Tr. 545, 683).
In October 2003, Respondent attempted to use Quantum em-
ployees to perform billposting for a very short period of time
and then resorted to wholesale subcontracting of unit work
without notifying the Union. Then following the accident in
March 2004, it increased its use of subcontractors, instead of,
for example, negotiating with the Union about rehiring some of
the unit members it had terminated in May 2003.16

15 Contained in GC Exh. 111 are several work orders for D.C. rotary
work performed by Darryl Jones and Russell Mellion between August 7
and September 3. The year is not noted on the documents. According
to GC Exh. 33, Jones and Mellion first appear on Respondent’s payroll
for the pay period ending September 17, 2003. From this I infer that
Jones and Mellion performed rotary work in D.C. as Quantum employ-
ees for about a month and then were transferred to Respondent’s pay-
roll.
16 At pp. 38 and 39 of its brief, Respondent contends that subcon-
tracting was necessitated by the number of employees who went on
workers compensation in late 2003 and early 2004. However, this
argument has no merit since Respondent began subcontracting unit
work without notifying the Union in October 2003, before any of these
employees stopped working due to injuries or physical ailments. At p.
CLEAR CHANNEL OUTDOOR, INC. 705
9. Respondent violated Section 8(a)(5) and (1) in not
timely responding to the Union’s request for information
about billposting and other bargaining unit work performed
by Quantum employees
An oral request for information is sufficient to obligate an
employer to provide a union with information relevant to its
collective-bargaining responsibilities. Gabriel Terrasa’s testi-
mony that he made such a request to Respondent’s attorney,
Michael Zinser, at the July 30, 2003 bargaining session is un-
controverted. It is also uncontroverted that Respondent did not
respond to this request until September 2004, 14 months later,
and 6 months after Terrasa had followed up his oral request for
this information in writing. Moreover, Respondent provided no
information regarding the bargaining unit work performed by
Quantum employees between January 1 and September 2004. I
conclude that this response was not timely and that an employer
answering the request in good faith would also have addressed
the substantial amount of billposting and rotary work per-
formed by Quantum employees in 2004. For both reasons, I
conclude that Respondent violated Section 8(a)(5) in not re-
sponding fully and in a timely manner to the Union’s informa-
tion request.17
10. Respondent, by Operations Manager Joseph Kroeger,
did not coerce employees in the exercise of their Section 7
rights by expressing his anger at the filing of the first unfair
labor practice charge in this case
Operations Manager Kroeger, by expressing his anger at the
filing of the Union’s December 2, unfair labor practice charge
did not restrain, coerce, and interfere with employees’ Section 7
rights in violation of Section 8(a)(1). Kroeger did not inquire
as to whether any particular employee initiated the filing of the
charge and made no attempt to interrogate employees individu-
ally. Moreover, he made no effort to obtain the withdrawal of
the charge. In such circumstances, I conclude that his expres-
sion of anger or disappointment does not constitute a violation
of Section 8(a)(1).

40 of its brief, Respondent intimates that it attempted to procure labor
through the Union. The portion of the record cited, Tr. 1098–1099,
does not support this assertion.
Finally, Respondent’s citation to Business Representative Weakley’s
testimony at Tr. 947–949 is not entirely accurate. Weakley did not say
the Union could not provide Respondent with “qualified employees.”
He conceded that it does not provide its members with training specific
to the tasks of a billposter or a rotary worker. However, he also testi-
fied that the Union may have members, who formerly worked for Re-
spondent, who have had training in these tasks.
17 Moreover, on March 5, 2004, the Union’s attorney, Gabriel Ter-
rasa, told Respondent’s attorney, Zinser, “that we wanted to know what
work Quantum was doing in the bargaining unit.” (Tr. 275.) This
constitutes a separate request for information to which Respondent was
obligated to respond. Given the fact that I find that Respondent was
obligated to provide an up-to-date response to the Union’s initial re-
quest for information, I find it unnecessary to decide whether Respon-
dent’s failure to respond to Terrasa’s March 5, 2004 request for infor-
mation was a separate violation of Sec. 8(a)(5) that was tried by con-
sent.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(5) and (1) of the Act by
subcontracting bargaining unit work and assigning unit work to
nonunit employees without providing the Union notice and an
opportunity to bargain.
2. Respondent violated Section 8(a)(5) and (1) by failing to
timely respond to the Union’s request for information regarding
its use of Quantum employees to do billposting and rotary work
and in failing to provide up-to-date information on this subject
when it did respond.
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.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended18
ORDER
The Respondent, Clear Channel Outdoor, Inc., Laurel, Mary-
land, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally subcontracting billposting, rotary work, and
other bargaining unit work, and from utilizing nonunit employ-
ees to do such work without giving the International Brother-
hood of Electrical Workers, Local Union 24, notice and an
opportunity to bargain.
(b) Failing to provide a timely and complete and up-to-date
response to the Union’s request for information regarding the
utilization of nonunit employees to perform billposting, rotary,
or other bargaining unit work.
(c) 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) Rescind all its subcontracts for billposting, rotary work,
and other bargaining unit work and restore the status quo by
restoring the unit to where it would have been without the uni-
lateral changes.
(b) Before implementing any changes in the wages, hours, or
other terms and conditions of employment of unit employees,
notify and, on request, bargain collectively and in good faith
with the Union as the exclusive bargaining representative of all
full-time and regular part-time operations department employ-
ees of Respondent at its Laurel, Maryland facility, but exclud-
ing all office clerical employees, all employees in sales, fi-
nance/human resources and realty departments, guards, and
supervisors.
(c) Provide the Union with the information it requested re-
garding its use of Quantum employees to perform billposting,

18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD706
rotary work, and any other bargaining unit work up to the date
of this order.
(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 its
Laurel, Maryland facility, copies of the attached notice marked
“Appendix.”19 Copies of the notice, on forms provided by the
Regional Director for Region 5, after being signed by the Re-

19 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.”
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since July 30,
2003.
(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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.