Columbus Maintenance Co.

National Labor Relations Board - Board Decisions

Mar 15, 1984

269 N.L.R.B. 198 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Columbus Maintenance and Service Co., Inc. and
Service, Hospital, Nursing Home and Public
Employees International Union, Local 47, AFL-
CIO-CLC.
Columbus Maintenance and Service Co., Inc. and
Service, Hospital, Nursing Home and Public
Employees International Union, Local 47, AFL-
CIO-CLC, Petitioner. Cases 9-CA-17855 and
9-RD- 1042
15 March 1984
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 30 June 1983 Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed 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, findings,' and
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Columbus Maintenance and Service Co.,
Inc., Columbus, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
Insert the following after paragraph 2(c).
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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.
We agree with the judge that Respondent violated Sec. 8(a)(5) and (I)
of the Act by refusing to furnish the Union with the telephone numbers
of employees in the unit, as well the information pertaining to the unit
employees' hours of work and jobsite addresses. We note that after the
filing of the decertification petition, the Union learned that there was a
large number of newly hired employees of whom it was previously un-
aware. The telephone numbers of all unit employees were requested, in
part, because the Union believed that many of the new employees were
not receiving the proper wage rate or insurance benefits and wanted to
contact the new employees for the purpose of handling possible griev-
ances. As the Union's request was related to its role of bargaining repre-
sentative and not solely to its campaign needs, we agree with the judge's
conclusion that Respondent violated Sec. 8(a)(5) and (1) by refusing to
supply the requested telephone numbers. While we do not condone Re-
spondent's withholding the names and addresses of unit employees re-
quested by the Union until after an earlier unfair labor practice charge
was filed (subsequently withdrawn), we disavow the judge's characteriza-
tion of this conduct as unconscionable.
"IT IS ORDERED that the election conducted on
February 6, 1982, among the employees of Colum-
bus Maintenance and Service Co., Inc., Columbus,
Ohio, be set aside and a new election be held."
[Direction of Second Election omitted from pub-
lication.]
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. The
charge in Case 9-CA-17855 was filed by Service, Hospi-
tal, Nursing Home and Public Employees International
Union, Local 47, AFL-CIO-CLC, the Union, on Janu-
ary 12, 1982. The complaint was issued on April 8, 1982.
As amended at the hearing herein, it alleges that Colum-
bus Maintenance and Service Co., Inc.,' Respondent, en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the National Labor Relations
Act in that assertedly since on or about November 16,
1981, by written request and about December 23, 1981,
by oral request, the Union has requested Respondent to
furnish the Union with the information contained in
paragraph (i) below and since on or about December 23,
1981, has orally requested Respondent furnish the Union
with the information contained in paragraphs (ii) and (iii)
below:
(i) Telephone numbers of said bargaining unit em-
ployees.
(ii) Hours of work of said bargaining unit em-
ployees.
(iii) Addresses of jobsites where said bargaining
unit employees perform work.
It is further alleged that such information is necessary
for, and relevant to, the Union's performance of its func-
tions as the exclusive collective-bargaining representative
of Respondent's employees. The complaint originally
spoke only to the oral request made on Respondent on
December 23, 1981. Respondent denies the allegations.
By order entered June 18, 1982, Case 9-CA-17855 was
consolidated and set for hearing with Case 9-RD-1042.2
The latter involves an objection filed May 24, 1982, by
the Union to alleged conduct which assertedly affected
the results of an election held on February 10, 1982. The
alleged objectionable conduct is the same as that alleged
in the above-described complaint.s
' The evidence or record indicates that the correct name is Columbus
Maintenance and Service Co., Inc.
GO.C. Exh. l(f). This order, entered by the Regional Director for
Region 9, was approved by the Board by order entered July 12, 1982.
G.C. Exh. I(h).
s As set out in the report on objections, G.C. Exh. (0),
The Union contends that the information requested was necessary
to enable it to contact bargaining unit employees in order to cam-
paign effectively. The Union further asserts that the addresses of unit
employees furnished in accordance with the requirements of Excelsi-
or Underwear, Inc., 156 NLRB 1236, and N.LR.B. v. Wyman-Gordon
Co., 394 U.S. 759, were inadequate to allow effective campaign con-
tact due to the marginal literacy of many unit employees. The Em-
ployer contends that the alleged unfair labor practices in Case No.
Continued
269 NLRB No. 37
198
COLUMBUS MAINTENANCE CO.
A hearing in these consolidated cases was held in Co-
lumbus, Ohio, on November 15, 1982. On the entire
record in this case, including my observation of the de-
meanor of the witnesses and consideration of the briefs
filed by General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Ohio corporation with an office and
place of business in Columbus, has been engaged in pro-
viding janitorial services to various customers located in
Franklin County, Ohio. The complaint alleges, the Re-
spondent admits, and I find that, at all times material
herein, Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Since 1966 the Union has been the designated exclu-
sive collective-bargaining representative of certain of Re-
spondent's employees. Respondent and the Union have
had successive collective-bargaining agreements, with
the most recent being effective between January 1, 1979,
and December 31, 1981. As here pertinent, that agree-
ment includes the following:
ARTICLE I-RECOGNITION, UNION SHOP
AND CHECKOFF
Section 1. Recognition. The Employer recognizes
the Union as exclusive collective bargaining agent
for all its cleaners but excluding any employee in
the foregoing classification where such employee is
the only person engaged for an individual account
and is working fewer than twenty (20) hours per
week, and also excluding office employees and su-
pervisors as defined in the Labor Management Rela-
tions Act of 1947, as amended.
Section 2. Union Shop. It is a condition of employ-
ment that all employess of the Employer covered
by this Agreement who are members of the Union
in good standing on the execution date of this
Agrevement shall remain members in good standing
and those who are not members on the execution
date of this Agreement shall, on the thirty-first day
following the execution date of this Agreement,
become and remain members in good standing of
the Union. It shall also be a condition of employ-
ment that all employees covered by this Agreement
and hired on or after its execution date shall, on the
thirty-first day following the beginning of such em-
ployment, become and remain members in good
standing in the Union. Any employee failing to
comply with the provisions of this Article shall be
9-CA-17855, if they occurred, would not tend to interfere with em-
ployee free choice in the election, since the information allegedly re.
quested was relevant only to the Union's ability to process griev.
ances which may have arisen during the term of the collective-bar-
gaining agreement which expired on December 31, 1981.
terminated from employment upon written request
to the Company from the Union.
Section 3. Checkoff. The Company agrees to
deduct from the wages of the employees covered
by this Agreement who authorize such deductions
in writing to the Company all initiation fees, assess-
ments and dues on the first payday of each month
and to forward it to the Union no later than the fif-
teenth (15) day of each month. The Union agrees
that the Company is not liable for clerical errors in
the administration of this Article. Deliberate omis-
sions shall not be considered as a clerical error.
ARTICLE XX-UNION REPRESENTATION
Section 1. Authorized representatives of the
Union shall be permitted to investigate conditions to
determine that this Agreement is being properly
performed. No such investigation shall be conduct-
ed at a time which is calculated to unreasonably in-
terrupt the duties of any employee, and shall not be
conducted on working premises without the Em-
ployer's permission first obtained.
Under the agreement, dues checkoffs were made for
26 of Respondent's employees, the only employees of
Respondent that the Union was aware of.
On October 30, 1981, an employee of Respondent,
Nancy Carle, filed a petition for decertification in Case
9-RD-1042, indicating therein that Respondent had 190
"full-time and regular part-time janitors (as per the con-
tract)."
The Union then forwarded4 the following:
November 16, 1981
Jack Worrel
Columbus Maintenance Service
322 West State Street
Columbus, Ohio 43215
Dear Mr. Worrel:
Please forward to this office the names, addresses
and telephone numbers of all bargaining unit em-
ployees. This information is necessary in our role as
Collective Bargaining Representative for the inves-
tigation of potential grievances.
Thanking you in advance for your cooperation in
this matter, we remain-
Sincerely yours,
Gregory J. Lavelle
House Counsel
Joseph E. Murphy
President
And in response Respondent
dated November 23, 1981:
forwarded the following
4 In February 1981 the Union also requested Respondent to supply the
names and addresses of bargaining unit members.
199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Joseph E. Murphy, President
Local 47, Service, Hospital, Nursing
Home and Public Employees Union
2201 Superior Avenue, Room 201
Cleveland, Ohio 44114
Dear Mr. Murphy:
This will acknowledge receipt of your letter
dated November 16, 1981. We have no problem
with forwarding to you reasonable information
which you requested. However, due to the size of
our work force and the rate of turnover that we
have experienced, it will take a little time to com-
pile this information. We hope that the delay does
not cause you any inconvenience.
Very truly yours,
COLUMBUS MAINTENANCE & SERVICE CO., INC.
Jack W. Worrel, President
On December 14, 1981, the Union filed the following
charge in Case 9-CA-17781 alleging that Respondent,
Columbus Maintenance and Service Co., Inc., was violat-
ing Section 8(a)(1) and (5) since:
On or about November 30, 1981, and at all times
thereafter, it, by, its officers, agents and representa-
tives, has refused to bargain collectively with Serv-
ice, Hospital, Nursing Home and Public Employees
Union, Local 47, a labor organization chosen by a
majority of its employees in an appropriate unit, for
the purpose of collective bargaining in respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment, by re-
fusing to supply information necessary in our role as
Collective Bargaining Representative.
By letter dated December 15, 1981 the Regional Di-
rector advised Respondent of the charge filed the day
before. 6
Respondent forwarded the following, dated December
16, 1981:
Dear Mr. Murphy:
Enclosed are names and addresses of employees
who are in the unit.
Enclosed were 7 sheets with a total of 169 names and ad-
dresses.
A Board hearing (rescheduled from November 13,
1981) on the question of voter eligibility was set for De-
cember 23, 1981. It appears that it was not necessary to
go on the record since the parties reached an agreement.
(it. Exh. 3(d)(1).) The agreement refers to a list which
was attached thereto. (Jt. Exh. 3(d)(3)). This 7-page list
gives 148 names, and, as here pertinent under
"LOCATION(S) OF WORK" specifies, to give a few
examples, 22 E. Gay St. WLMH-TV, Municipal Bldg.,
BancOhio Service Ctr., Grange Mutual, Int. Harvester
Credit, Electric Co., Administration Bldg., BancOhio,
6 It was not established whether the Union itself served Respondent
with a copy of the charge.
Town St. Xerox, BancOhio Opr. Ctr., 145 N. High,
Dollar Savings, Gay St. & 513 Rich St., First Invest-
ment, and "CMS and Special Jobs."6
Four witnesses testified regarding what allegedly oc-
curred at the December 23, 1981 meeting, which lasted
approximately 7 hours. The first, Lavelle, testified that at
this meeting he repeated his request for the telephone
numbers of the employees, and additionally he requested
the starting and quitting times of the individual employ-
ees and their job location; that, in response to a question
of one of Respondent's attorneys, he did not request Re-
spondent's customers' telephone numbers at the meeting
rather than the employees' because customers' numbers
are readily available in the telephone book and he cam-
paigns with employees and not Respondent's customers;
that he received a general statement of hours during
which Respondent's work force was employed but it was
worthless for his purpose since the Union would have to
know the starting and quitting times to be able to contact
unit members at jobsites;7 that while the Union could
have figured out where some of the jobsites were with
the location descriptions on Joint Exhibit 3(d)(3), some
of the descriptions, i.e., Radio Shack, were not sufficient-
ly detailed to allow such a determination; that Joint Ex-
hibit 3(d)(3) was used to determine eligibility and it was
discussed early in the meeting; that close to the end of
this meeting he specifically requested the names, address-
es, and telephone numbers and starting and quitting times
at the jobsites and the jobsite locations; that before he
signed the agreement on December 23 he announced that
he was going to file charges because he did not receive
the requested information; that he
. . . needed to get the telephone numbers because,
essentially sic that's that only way you can get hold
of employees in the janitorial service. In Cleveland
I handle all the arbitrations under about 15 or 20
janitorial contracts. And in the industry, basically,
people work part time. They have a day time job,
so you can't get them in the day. You can't get
them at the job site because you don't know where
they're working. So the only way to really get hold
of them is to call them up. They don't answer let-
ters. I don't know how many letters come back
"left no fowarding address". .. .s
6 Excluding repetitions, this is what appeared on the first page. The
following, excluding repetitions, appeared on the remaining pages.
AFSCME, Council 8, Kinnear Corp., Burroughs Corp. Oraybar Electric
and Plumbers Union, Barnebey Cheney, Cont Can, Union Carbide &
Castle Metals, I.P.M. Corp. Metal Container, Cols Mental Health, Int.
Harvester, West and BancOhio, Georgeville, BancOhio-BancSupply,
Buckeye Telephone, Mid Ohio Health, Planned Parenthood, Northland
Mall, Radio Shack, Bill Swad Chev., Columbus Gas Transmission, Ohio
AFL-CIO, Hughes Peters, A. C. Delco, BancOhio, Henderson & Free-
dom Fed. Bethel, Philips Roxane, Star Forms, Philips Roxane & Elford,
T & C Realty, Freedom Fed. Kingsdale, BancOhio, Bride Rd., and
Dollar Savings-Brice Rd.
I Lavelle conceded that he may have been mistaken about the exact
times he was told. His point, however, was that the times given were in
general terms and, as conceded by Respondent's vice president, Barbara
Harper, the Union would have to know the individual employee's work-
ing hours if it wanted to contact him at the jobsite before or after work.
At another point Lavelle testified:
Continued
200
COLUMBUS MAINTENANCE CO.
and that he could not have obtained phone numbers by
looking in the telephone directory for names and ad-
dresses of employees supplied by Respondent since
. . . number I, phone numbers change. Through the
course of going through arbitrations, you'll see a
person's phone number change one, two, three
times. Another thing, a lot of people in this industry
don't have a phone. They'll have someone who ac-
cepts their calls that the company would know.
Third thing, this is predominately female industry.
Women sometimes don't have their phone numbers
listed or would only list their first initial. So it's
very difficult to find them.
The Union's Columbus business agent, William Ca-
tling, testified that at the December 23 meeting he be-
lieved he heard Lavelle request the "names, addresses,
telephone numbers, place of employment, jobsites, and
hours worked"; that while he was not given the list of
employees' names and addresses and did not attempt to
trace Respondent's employees' telephone numbers, he
had attempted to obtain employees' phone numbers in
the past but his rate of success was very poor because
"they are listed under maiden names, different other
people than their names and some of them aren't listed.
And some of them you do find the names have changed,
the numbers have changed and they're not listed"; and
that in the janitorial industry the rate of turnover is in
the neighborhood of 30 percent a month.
The third witness to take the stand, Harper-who is
Respondent's vice president and general manager and
who is responsible for the "operation of the company"-
testified that at the December 23 meeting Lavelle asked
for the telephone numbers of Respondent's customers
and not Respondent's employees; that about 50 percent
of the time Respondent's employees do not have a phone
and so the employee gives a relative's or a neighbor's
telephone number to Respondent; that in the 16 years she
has been with Respondent, a total of about 50 employees
have requested that their telephone number not be given
out; that as a matter of policy Respondent does not give
out employees' telephone numbers; that many (Harper
testified "less than half') of its employees are women
and a good number of those are married and may or may
not have a telephone number listed in their name; that at
the December 23 meeting Lavelle did not ask for indi-
viduals' work hours but rather wanted to know the
hours Respondent's employees worked, and he was ad-
vised between the hours of 5 and 10 p.m.; that Respond-
ent's employees work when the offices are closed and
the employees have a key or are admitted by a guard;
that unauthorized people are not allowed in these build-
. . . the reasons for requesting the information was one; to track
down grievance because it sure looked like people were underpaid
and it looked like, in talking to Nancy Carle she didn't know she had
insurance. The collective bargaining agreement provides for employ-
er paid life and medical insurance for all regular full-time employees
(those who work 23 hours a week) after their first 90 days of em-
ployment. Two; for the purpose of campaigning so that we could
specifically talk to people to find out what had been said to them.
And the third reason was to try and track down witnesses on some
of the unfair labor practice cases we had to withdraw because we
couldn't get people to testify.
ings; that employees begin working at the jobsites at 5
p.m., 5:30 p.m., or 6 p.m. and they leave the jobsites at 9
p.m., 9:30 p.m., or 10 p.m. but those who start at 5 p.m.
would not necessarily leave work at 9 p.m., and, there-
fore, the Union would have to know the individual em-
ployees working hours if it wanted to contact him at the
jobsite before or after work; that Respondent never gave
the Union Respondent's employees' telephone numbers
but Joint Exhibit 3(d)(3) which was used to determine
eligibility gives some of Respondent's customers' ad-
dresses; that Respondent ignored the Union's February
1981 request for the names and addresses of Respond-
ent's employees; that she saw the Union's above-de-
scribed November 16, 1981 letter and there was no asser-
tion by Respondent at that time that the telephone num-
bers were confidential; that Respondent has a telephone
number for each of its employees; that Respondent mails
the employees' paychecks; that Respondent does not
advise the Union of address changes of its employees;
that the average educational level of Respondent's em-
ployees is 9 or 10 grade; and that while she did not
recall Lavelle indicating on December 23 that he was
going to file an unfair labor practice, she was aware that
one was filed, she read it, and agreed that it involved
telephone numbers; and that, nonetheless, after the De-
cember 23, 1981 meeting Respondent did not give the
Union the telephone numbers, the addresses of its cus-
tomers, or the hours of employment of the employees.
Employee Carle testified that Lavelle, at the Decem-
ber 23, 1981 meeting, asked for the telephone numbers of
Respondent's customers and not its employees; that La-
velle on December 23 asked what the hours of work for
bargaining unit employees were and "we told him it was
like 5:00 p.m. to 10:00 p.m. It was like when you could
catch all of the cleaners in that time"; and that while she
was present throughout the December 23 meeting she
did not hear Lavelle indicate that he was going to file an
unfair labor practice charge with the Board over the fact
that he was not being supplied with the telephone num-
bers, the jobsite locations, and the hours of work of the
unit employees. Carle testified that she was present
throughout the hearing herein, and that she recalled Ca-
tling's testimony given earlier that same day regarding
how meeting notices are sent o'ut. However, on cross-ex-
amination by Lavelle, she mistakenly testified that Ca-
tling had testified that the meeting notices were mailed
from Columbus vis-a-vis Cleveland, Ohio, the Union's
home office.
Twenty days after the above-described December 23
meeting Lavelle, after withdrawing the charge in Case
9-CA-17781, filed the charge herein alleging that Re-
spondent engaged in unfair labor practices within the
meaning of Section 8(a)(X1) and (5) of the Act in that it
. . .since on or about December 23, 1981, and at all
times thereafter, it, by its officers, agents, and repre-
sentatives, has refused to bargain collectively with
Service, Hospital, Nursing Home and Public Em-
ployees Union, Local 47, a labor organization
chosen by a majority of its employees in an appro-
priate unit, for purpose of collective bargaining in
respect to rates of pay, wages, hours of employ-
201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, and other terms and conditions of employ-
ment, by failing to supply said labor organization
with information relevant to its performance as bar-
gaining agent, to wit: hours of employment and job
locations of employees in the bargaining unit. [Em-
phasis added.]
The Union mailed the following (dated February 1,
1982) to all of Respondent's employees in the unit:
TO: ALL COLUMBUS MAINTENANCE EMPLOYEES
I know you have all heard a lot of talk about the
decertification election being held on February 10,
1982, and all the reasons you should vote against
being represented by the Union.
The matter not being discussed is that there is
more to this than simply not paying dues.
We will be holding a meeting to address these
issues before the election so you will know exactly
what your vote means to you, now and in the
future. MEETING WILL BE HELD-
DATE: SATURDAY, FEBRUARY 6, 1982
TIME: 12:00 Noon
PLACE: HOLIDAY INN - 175 E. Town Street, Co-
lumbus, Ohio
ALL ELIGIBLE VOTERS SHOULD BE IN ATTEND-
ANCE WHETHER OR NOT THEY PAY DUES.
Fraternally yours,
William Catling
Business Representative
Catling, who conducted the February 6 meeting, testified
that three employees, all of whom were dues-checkoff
accounts, attended this meeting. Carle testified that she
attended the meeting and "approximately 15, not more
than 20" of Respondent's employees were present.
To the extent their testimony conflicts with that of La-
velle and Catling, the testimony of Harper and Carle is
not credited, Lavelle, the first witness to testify, pointed
out on cross-examination that it would have made no
sense for him to request Respondent's customer's tele-
phone numbers at the December 23 meeting. Later
Harper and Carle testified that that is exactly what La-
velle did. There is no question but that Lavelle asked for
telephone numbers during the meeting; the only question
is which telephone numbers did he ask for. Prior objec-
tive evidence, the November 16, 1981 letter from the
Union to Respondent, demonstrates that the Union
wanted the employees' telephone numbers. Up to the
December 23 meeting, there is no assertion that the
Union sought customers' telephone numbers. Contrary to
the import of Harper's and Carle's testimony, Lavelle did
not have sufficient information to obtain the customers'
telephone numbers by using the telephone directory
since Lavelle was not given the street addresses for all
the Respondent's customers. Respondent, however, did
give the Union the names and addresses of all its em-
ployees. That Lavelle would seek the customers' tele-
phone numbers flies in the face of common sense. Re-
spondent's employees are at the customers' facilities after
business hours. Consequently, if the Union tried to con-
tact unit employees by telephone at the customers' facili-
ties, there would be no business personnel present to
answer the phones. It would be highly unlikely, that a
guard, if one were present, would answer the business
phone and then put a janitor on the line. In those situa-
tions where a guard was not present, it is just as unlikely
that unit employees would be answering the customers'
business phone. Lavelle asked for phone numbers.
Harper and Carle could not deny this. Their attempt to
mischaracterize what telephone numbers he asked for
must fail. Lavelle asked for the employees' telephone
numbers on December 23.
It was demonstrated by Lavelle during his cross-exam-
ination of Carle that while she claimed to be able to
recall what was said during a 7-hour meeting which oc-
curred almost 1 year before she testified herein, she
could not accurately restate something testified to in her
presence just hours before she testified.
Both Harper and Carle testified herein that Lavelle did
not indicate on December 23, 1981, that he would file a
charge because Respondent would not provide the infor-
mation he sought. As described above, there is objective
evidence that Lavelle did in fact subsequently file such a
charge. But for Harper and Carle to concede that La-
velle made such a statement would be an admission that
he unsuccessfully sought the information during the De-
cember 23, 1981 meeting. Harper and Carle were put in
the position, both with respect to what telephone num-
bers Lavelle sought on December 23, 1981, and whether
Lavelle indicated a charge would be filed, of either con-
ceding the obvious and undermining Respondent's case
or asserting the absurd in the hope of avoiding such a
fate. They chose the latter. Their challenged testimony
cannot be credited.
The election was held on February 10, 1982. As indi-
cated by the tally of ballots (Jt. Exh. 3(f)), 27 votes were
cast for the Union, 87 votes were cast against the Union,
and there was I challenged ballot.
B. Contentions
Citing NLRB v. Acme Industrial Co., 385 U.S. 432
(1967), the General Counsel argues, on brief, that a bar-
gaining representative is entitled to information requested
from an employer concerning unit employees if there is a
probability that the desired information is relevant to the
union in carrying out its statutory duties and responsibil-
ities, and that, as concluded in Edward Z Holmes Detec-
tive Bureau, 256 NLRB 824 (1981), information about
wages, hours, and working conditions, such as the
Union's request for the hours of work for bargaining unit
employees and the addresses of jobsites of such employ-
ees, is clearly relevant. K & K Transportation Corp., 254
NLRB 722 (1981), General Counsel points out, stands for
the proposition that, where a union demonstrates the rea-
sonable necessity for contacting employees by telephone,
the employer must furnish the union with employees'
telephone numbers. And, the General Counsel argues,
even though employees' telephone numbers may have
been available through the telephone directory, the
Board has held that a union's right to information does
202
COLUMBUS MAINTENANCE CO.
not depend on whether it might have been able to ac-
quire the information by other means. Bel-Air Bowl, Inc.,
247 NLRB 6 (1980).
On brief, Respondent contends that the unfair labor
practice charge should be dismissed because it furnished
the Union with its employees' names and addresses on
December 16, 1981; that a union's bare assertion that it
needs information to process grievances does not auto-
matically obligate the employer to supply all the infor-
mation in the manner requested, Detroit Edison Co. v.
NLRB, 440 U.S. 301 (1979); that a union is required to
show the precise relevance of the information requested
if effective employer rebuttal comes forth. Id., NLRB v.
A. S. Abell Co., 624 F.2d 506, 510 (4th Cir. 1980); that
there is no Board precedent which requires an employer
to furnish employee telephone numbers to a union where
the mail is clearly the most reasonable means of commu-
nicating with employees; that the Union did not request
employees' telephone numbers on December 23, 1981;
that the Union never requested specific addresses of job-
sites where bargaining unit employees on December 23,
1981; that several courts of appeal have held that doubt
is cast on the union's good-faith need or desire for infor-
mation when unfair labor practice charges are filed with-
out any effort to pursue the information request with a
company, Soule Glass & Glazing Co. v. NLRB, 652 F.2d
1055, 1098 (Ist Cir. 1981); Emeryville Research Center v.
NLRB, 441 F.2d 880 (9th Cir. 1971); see also Kroger Co.
v. NLRB, 399 F.2d 455 at 459 (6th Cir. 1968), that the
Union is required to afford an employer an opportunity
to provide the data on mutually satisfactory terms,
before the employer's refusal to supply such information
can be held to be an unfair labor practice. Soule Glass &
Glazing Co., supra at 1099, and, therefore, even assuming
arguendo that the Union made a general request for this
information, its failure to pursue the matter and be more
specific is sufficient to defeat its unfair labor practice
charge; that the Union's attorney did not threaten to file
an unfair labor practice charge on December 23, 1981;
that the Union's objection that the information requested
was necessary to enable it to contact unit employees to
campaign effectively and that the addresses of unit em-
ployees furnished in accordance with the requirements of
Excelsior Underwear, and NLRB v. Wyman-Gordon Co.,
supra, was inadequate to allow effective campaign con-
tact due to the marginal literacy of many unit employees
is without merit since there was no evidence produced
during the hearing that even remotely indicated the mar-
ginal literacy of any bargaining unit employee; and there
was simply no evidence presented by the Union that it
was unable to effectively campaign during the election
because of the marginal literacy of any unit employees,
or the inability to contact employees because of the un-
availability of employee telephone numbers, hours of
work or jobsite addresses, and, therefore, the Union's ob-
jection concerning an inability to effectively campaign is
without merit and should be dismissed.
C. Analysis
In my opinion, for the reasons set forth below, Re-
spondent violated Section 8(a)(1) and (5) of the Act in
the manner set forth in the amended complaint described
above. Considered in terms of background, it is noted
that the Union requested the names and addresses of unit
employees from Respondent in February 1981. As con-
ceded by Respondent's vice president, this request was
ignored. Again on November 16, 1981, the Union re-
quested such information, in addition to employees' tele-
phone numbers. When the information was not supplied,
the Union filed a charge. Only then did the Respondent
comply with the request, and even then it supplied nei-
ther the employees' telephone numbers nor a specific ex-
planation for its noncompliance to this extent. There is
no question but that the Union was entitled to the names
and addresses of unit employees. And the General Coun-
sel cites authority, K & K Transportation Corp., supra, for
the proposition that where a union demonstrates the rea-
sonable necessity for contacting employees by telephone,
the employer must furnish the union with employees'
telephone numbers. As conceded by Respondent in its
brief, "many of the ... Respondent's employees work at
another job full time during the day and part time with
· .. Respondent at night." In these circumstances the
Union should not be denied the opportunity to personal-
ly contact unit members so as to be able to fulfill its obli-
gations as the collective-bargaining representative of unit
members. An employer cannot refuse to provide relevant
information and, thereby, in effect preclude personal
contact by the Union with unit members. While the mail
is normally a reasonable means of communication, here,
in my opinion, it has been demonstrated that there was a
need for the Union to contact unit members by tele-
phone. By precluding personal contact by reasonable
means, Respondent denied the Union the opportunity to
carry out its statutory duties and obligations, and per-
form its functions as the exclusive collective-bargaining
representative of the involved unit members. With re-
spect to campaigning, but for the Respondent's flagrant
disregard of the Union's representative status, the Union
would have been placed on notice that Respondent em-
ployed almost six times the number of employees the
Union knew about. Withholding the names and addresses
requested November 16, 1981, until after a charge was
filed, especially in view of the fact that a decertification
petition had been filed, was unconscionable. The Union
should have been given the opportunity to contact unit
members by telephone in view of the following: (a) the
number of "recently discovered employees," (b) the fact
that many of the unit members held two jobs, (c) the fact
that unit members did not work at one or a few loca-
tions, (d) the fact that the Union did not know the spe-
cific working hours of unit members, (e) the fact that the
Union did not have the specific jobsite locations for all
unit members, and (f) the timing involved. For the rea-
sons set forth above, both the Union and Respondent
knew that the former would not be able to contact many
of the unit members by utilizing the list of names and ad-
dresses Respondent supplied and a telephone directory.
Moreover, as pointed out by the General Counsel, the
Union was not under a legal obligation to first attempt
this approach. Respondent did not indicate that it was
willing to reach some kind of an accommodation. Re-
spondent simply supplied neither the numbers nor a spe-
203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cific explanation. Respondent's belated confidentiality
and company policy assertions cannot be given any
weight.
Respondent's operation does not involve the use of
employees at only one facility where the Union would
have an opportunity for personal contact before or after
work. Rather, its employees work at numerous jobsites
throughout the Columbus area, and the employees' start-
ing and quitting times vary as described above. Again,
Respondent frustrated any attempt by the Union to have
personal contact with unit members by refusing to give
the Union all of the specific jobsite locations and the
starting and quitting times of the employees. The list of
customers, along with employee names, dealt with at the
December 23, 1981 meeting (Jt. Exh. 3(d)(3)), was uti-
lized to determine eligibility. Admittedly, certain jobsite
locations could be determined from the list, but the list
was not meant to nor does it comply with the request for
all jobsite locations. And even to the extent a jobsite lo-
cation could be determined from the list, the Union
would still need the starting and quitting time of the unit
member working at that location to be able to, in a rea-
sonable fashion, have personal contact. The collective-
bargaining agreement between the Union and Respond-
ent was in effect at that time. By refusing to provide the
Union with the telephone numbers and the hours of
work of bargaining unit employees and the addresses of
jobsites where they performed work, Respondent violat-
ed Section 8(a)(1) and (5) of the Act.
THE OBJECTION
The Union's objection to the election is based on the
above-described conduct which has been found to be un-
lawful. The conduct was not trivial; it goes to the heart
of the Union's representative status. By withholding the
requested information, Respondent effectively denied the
Union the opportunity to represent unit members. By
withholding the requested information, Respondent, in
the circumstances of this case, denied the Union the op-
portunity to campaign effectively. In my opinion, Re-
spondent interfered with the exercise of a free choice in
the election.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and 2(7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (5) of the
Act by failing and refusing to furnish the Union pursuant
to its written request of November 16, 1981, and its oral
request of December 23, 1981, with the telephone num-
bers, hours of employment, and job locations of employ-
ees in the bargaining unit.
4. Respondent engaged in conduct which interfered in
the free choice of employees in the Board-conducted
election.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of
the Act, I shall recommend that it be required to cease
and desist therefrom, and take certain affirmative actions
designed to effectuate the policies of the Act.
Having found that Respondent engaged in conduct
which interfered with the election in Case 9-RD-1042, I
recommended that the election be set aside.
On the basis of the entire record and the findings of
fact and conclusions of law, I issue the following recom-
mended9
ORDER
The Respondent, Columbus Maintenance and Service
Co., Inc., Columbus, Ohio, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the above-
named Union by refusing to provide said Union, upon re-
quest, with a list of telephone numbers, hours of employ-
ment, and job locations of employees in the bargaining
unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of any
right guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Upon request, provide to the aforementioned
Union the names and addresses of current unit members
along with their telephone numbers, hours of employ-
ment, and their specific job locations.
(b) Post at its place of business in Columbus, Ohio,
copies of the attached notice marked "Appendix."' °
Copies of said notice, on forms provided by the Regional
Director for Region 9, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt 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 Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material. In view of the nature of the
involved employment, copies of the notice shall be
mailed to all current unit members and individuals who
were determined to be unit members eligible to vote in
the above-described election.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
I 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.
'0 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
204
COLUMBUS MAINTENANCE CO.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to bargain collectively with
Service, Hospital, Nursing Home and Public Employees
International Union, Local 47, AFL-CIO-CLC, by fail-
ing and refusing to furnish the said labor organization
with the information requested by the Union (a) in its
letter to us on November 16, 1981, and (b) orally on De-
cember 23, 1981.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
WE WILL, on request, furnish the aforementioned
Union, with reasonable promptness, information duly re-
quested by it concerning current employees' names, ad-
dresses, telephone numbers working hours, and specific
job locations.
COLUMBUS MAINTENANCE AND SERVICE
Co., INC.
205