Commercial Property Services

National Labor Relations Board - Board Decisions

Aug 20, 1991

304 N.L.R.B. 134 (N.L.R.B. 1991)

134
304 NLRB No. 26
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 7, 1988, Administrative Law Judge Wallace H. Nations
issued the attached decision. The Respondent and the General Counsel filed
exceptions and supporting briefs.
The Respondent has requested oral argument. The request is denied as the
record, exceptions, and briefs adequately present the issues and the positions
of the parties.
2 The collective-bargaining agreements in these three units are commonly re-
ferred to respectively as the ‘‘Janitorial’’ agreement, the ‘‘Site’’ or ‘‘Down-
town’’ agreement, and the ‘‘Erieview’’ agreement.
3 The Site and Erieview agreements contain provisions concerning only the
pension fund.
Commercial Property Services, Inc. and Building
Service Local 47 Cleaning Contractors Pension
Plan and its Trustees and its Local 47 Welfare
Fund No. 1 and its Trustees. Case 8–CA–20451
August 20, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case
present the issue of whether the Respondent violated
the Act by refusing to allow trustees of certain benefit
funds to audit Respondent’s payroll records.1 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
only to the extent consistent with this Decision and
Order.
The complaint alleges that the Respondent violated
Sections 8(a)(5) and (1) and 8(d) of the Act by refus-
ing to allow the Charging Parties (the Trustees) to con-
duct an audit of its payroll records to determine wheth-
er appropriate contributions had been made to a pen-
sion plan and welfare fund by the Respondent on be-
half of its employees represented by Service, Hospital,
Nursing Home and Public Employees Union, Local 47,
Service Employees International Union, AFL–CIO (the
Union) in three separate bargaining units.2
The judge found that the Trustees were acting as
agents of the Union when the audit request was made,
that the information sought was necessary and relevant
to the Union’s performance of its role as collective-
bargaining representative, and that the Respondent’s
refusal to provide the Trustees with the requested in-
formation concerning contributions made on behalf of
employees in all three bargaining units violated Sec-
tion 8(a)(5) and (1) of the Act.
We agree with the judge that the Respondent’s re-
fusal to provide the Trustees with information concern-
ing contributions made on behalf of unit employees
covered by the Erieview agreement violated the Act, as
alleged. We do not, however, agree with his finding
that the Respondent’s refusal to provide the Trustees
with similar information under the Janitorial and Site
agreements was also unlawful.
Contrary to the judge, we find that the Trustees
were not agents of the Union and that the Respond-
ent’s refusal to grant the audit request was not a re-
fusal to provide relevant information requested by
union agents. We initially observe that in NLRB v.
Amax Coal Co., 453 U.S. 322 (1981), the Court found
that a trustee of funds, such as those involved here is
not a representative of the employer within the mean-
ing of Section 8(b)(1)(B) of the Act, of the party who
appointed him. The Court’s rationale for this conclu-
sion was that when an individual acts in his capacity
as trustee his obligations are fiduciary in nature and he
is expected to safeguard the trust for the benefit of the
beneficiaries. Thus, in the Court’s view, an individual
who acts in the capacity of a trustee functions as the
spokesperson of the beneficiaries, not the appointing
party.
Although we recognize that Amax was concerned
with a different legal question, we believe that the
Court’s reasoning in that case provides guidance for
deciding the broader agency issue presented here. We
are not suggesting that an individual who serves as a
trustee always acts in his capacity as trustee, and there-
fore can never serve as an agent for the union or the
employer. See, e.g., Service Employees Local 1-J (Shor
Co.), 273 NLRB 929 (1984), see also Griffith Co. v.
NLRB, 660 F.2d 406, 411 (9th Cir. 1981), cert. denied
457 U.S. 1105 (1982). We simply proceed from the
premise that a trustee is not acting for the union or the
employer unless contrary evidence shows otherwise.
The record in this case shows that the provisions of
the Janitorial, Site, and Erieview agreements do not re-
move the discretion of the trustees to administer the
funds solely for the benefit of the employees.3 In addi-
tion, there is no evidence that the trustees acted at the
direction of the Union or in any capacity other than
trustees. Specifically, in 1983 the Trustees filed suit in
Federal district court, known as the Matonis suit, to re-
cover delinquent contributions from the Respondent
under the Janitorial agreement. The suit, which was
still pending at the time of the hearing, sought an audit
of the Respondent’s records which included informa-
tion concerning the Site and Erieview units as well as
the Janitorial unit. By letter dated July 15, 1985, the
Trustees requested an audit of the Respondent’s pay-
roll records for the period July 1, 1984, through June
30, 1985. The audit was commenced, but a dispute
arose over whether it had been completed. By letter
dated April 8, 1987, Melvin Schwarzwald, in his ca-
pacity as attorney for the Trustees, inquired whether
the Respondent would submit to an audit covering a
period of ‘‘at least through June 30, 1986 and pref-
erably up to date.’’ This letter, addressed to the attor-
ney representing the Respondent in the Matonis suit,
stated that this request was ‘‘in regard to the pending
135COMMERCIAL PROPERTY SERVICES
4 Art. XIII of the Erieview agreement, the pension provision, states that
‘‘The Employer shall be bound by the Trust Document.’’
5 Par. B of a September 27, 1979 amendment to the Union’s pension plan
provides that ‘‘For any period of time not already audited by the Trust Fund’s
auditors, [the Trustees] shall be permitted to examine the Employer’s payroll
records, journals, general ledgers, tax returns as they may apply to the payroll
only, and any other business records required by the auditors to determine
such Employer’s compliance with the coverage, reporting and contribution
provisions of this Pension Plan.’’
6 We find no merit in the Respondent’s contention that the April 8, 1987
letter from the Trustees’ attorney to the Respondent constituted a mere inquiry,
and not a request to audit its payroll records or for information. We agree,
instead, with the judge that the April 8, 1987 letter amounted to a request to
audit. We note in particular that the Respondent in its answer to the complaint
admitted that ‘‘on or about April 8, 1987 the Charging Parties requested the
Respondent to allow the Charging Parties to audit Respondent’s payroll
records for the purpose of determining whether Respondent had made con-
tributions to the Pension Plan and Welfare Fund No. 1.’’
7 Quality Assured Products, 297 NLRB No. 137 (Feb. 26, 1990)(not re-
ported in Board volumes); R.E.C. Corp., 296 NLRB 1293 (1989).
lawsuit brought by the Pension Plan and Welfare
Fund.’’
Given these circumstances, we find that the Trustees
were not acting for the Union when they requested the
1987 audit. Accordingly, because neither the Union
nor its agent requested the information, it follows that
the General Counsel failed to prove that the Respond-
ent’s refusal to allow the audit requested by the Trust-
ees with respect to the Janitorial and Site agreements
violated Section 8(a)(5) and (1) of the Act.
However, under a different rationale, we find that
the refusal to permit the audit was a violation of Sec-
tions 8(a)(5) and 8(d) with respect to the unit covered
by the Erieview agreement.
The Erieview agreement was entered into by the
parties on December 20, 1985, and expired by its
terms on January 15, 1989. Under that agreement, the
Respondent was required, inter alia, to contribute to
the Union’s pension plan on behalf of unit employees
covered by the agreement, and to otherwise comply
with all terms of the Pension Trust agreement.4 Thus,
the Pension Trust agreement, and all terms contained
therein, were incorporated by reference into, and be-
came part of, the Erieview agreement. One of these
terms was an auditing provision under which the Re-
spondent agreed to permit Trustees to perform audits.5
On April 8, 1987, during the term of the agreement,
the Trustees requested the Respondent to submit to an
audit of its payroll records.6 The Respondent failed
and refused to reply, and thus acted in derogation of
the aforementioned provisions of the contract between
Respondent and the Union. Accordingly, Respondent
engaged in an unlawful midterm unilateral modifica-
tion of that agreement, and violated Sections 8(a)(5)
and 8(d) of the Act, as alleged in the complaint.
However, the Respondent’s refusal to comply with
the Trustees’ request did not violate the Act with re-
spect to the Janitorial and Site agreements. These
agreements expired on April 30, 1984, and November
6, 1985, respectively, and were not renewed. Con-
sequently, when the Trustees made their audit request
on April 8, 1987, neither agreement was in effect. The
Respondent’s refusal to comply with the Trustees’
audit request therefore does not constitute an unlawful
midterm modification of the expired contracts, and
hence did not violate Sections 8(a)(5) and 8(d) of the
Act, as alleged in the complaint.
We are mindful that an employer remains statutorily
obligated to continue applying the terms and condi-
tions of employment in an expired contract until a new
agreement or a bargaining impasse is reached.7 A fail-
ure or refusal to adhere to such terms may render the
employer liable under Section 8(a)(5) and (1) on the
basis that the employer has unilaterally changed the
employees’ terms and condition of employment with-
out first having bargained to agreement or reached im-
passe with the union. In the instant case, the auditing
provision of the contract was a term or condition of
employment which could not be unilaterally changed
even after the expiration of the contract. Hence, it
could be argued that the failure to abide by the provi-
sion was a unilateral change proscribed by Section
8(a)(5). However, the General Counsel did not plead
such an allegation. Although the complaint alleged that
the Respondent had a contractual obligation to supply
the information and that the failure to supply it vio-
lated Sections 8(a)(5) and 8(d), the General Counsel
did not contend that the auditing clause, as a term or
condition of employment, survived the expiration of
the contract. Hence, the Respondent was not placed on
notice that it should present defenses that might be
available in response to such an allegation (e.g., im-
passe).
In view of the above, we shall not find a violation
under a ‘‘unilateral change’’ theory. However, we note
that, if the complaint had alleged that the Respondent
unilaterally changed its employees’ terms and condi-
tions of employment by refusing to submit to an audit
request, without first reaching agreement or impasse
with the Union, and if the issue had been fully liti-
gated at a hearing, a finding of a violation may well
have been warranted.
AMENDED CONCLUSION OF LAW
Substitute the following for paragraph 5:
‘‘5. The Respondent has engaged in unfair labor
practices within the meaning of Sections 8(a)(1) and
(5) and 8(d) of the Act by refusing to allow, on proper
request, an audit of its payroll records for the period
July 1, 1985, through January 15, 1989, for the pur-
pose of determining whether the Respondent has made
appropriate contributions to the Union’s pension plan
for the Respondent’s employees in unit C set out
above.’’
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
AMENDED REMEDY
Having found that the Respondent engaged in unfair
labor practices within the meaning of Sections 8(a)(1),
(5), and 8(d) of the Act, we shall order the Respondent
to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of
the Act.
Specifically, we shall order the Respondent to fur-
nish the Charging Parties the information requested on
April 8, 1987, permitting the Charging Parties to audit
the Respondent’s payroll records for all of its regular
employees employed as freight operators, janitors, day
matrons, cleaners and dock attendants at Erieview
Plaza Building, excluding any such employees working
15 hours or less per week, office employees, guards
and supervisors as defined in the Act, and employees
employed by the Respondent at any other building. We
shall require that the Respondent, on request, permit
such an audit of its payroll records for the period July
1, 1985, through January 15, 1989, for the purpose of
determining whether the Respondent has made appro-
priate contributions to the Union’s pension plan.
ORDER
The National Labor Relations Board orders that the
Respondent, Commercial Property Services, Inc.,
Cleveland, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Unilaterally modifying the terms of its Erieview
agreement with Service, Hospital, Nursing Home and
Public Employees Union, Local 47, by failing and re-
fusing to adhere to provisions contained therein requir-
ing that it provide the Trustees of the Union’s pension
plan with information concerning contributions it has
made to the Union’s pension plan on behalf of unit
employees covered by the Erieview agreement.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, allow the Trustees of the Union’s
pension plan to audit the payroll records of the Re-
spondent’s employees covered by the Erieview agree-
ment for the period July 1, 1985, through January 15,
1989, for the purpose of determining whether the Re-
spondent has made appropriate contributions to the
Union’s pension plan as required under that agreement.
(b) Post at its Cleveland, Ohio place of business
copies of the attached notice marked ‘‘Appendix.’’8
Copies of the notice, on forms provided by the Re-
gional Director for Region 8, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(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.
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 pro-
tected concerted activities.
WE WILL NOT unilaterally modify the terms of our
Erieview agreement with Service, Hospital, Nursing
Home and Public Employees Union, Local 47, by fail-
ing or refusing to adhere to provisions contained there-
in requiring us to provide the Trustees of the Union’s
pension plan, at their request, with information con-
cerning contributions we have made to the Union’s
pension plan on behalf of our employees covered by
the Erieview agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL allow the Trustees of the Union’s pension
plan, on request, to audit the payroll records of our
employees who are covered by the Erieview agreement
for the period July 1, 1985, through January 15, 1989,
for the purpose of determining whether we have made
appropriate contributions on their behalf to the Union’s
pension plan as required under that agreement.
COMMERCIAL PROPERTY SERVICES, INC.
Nancy Recko, Esq., for the General Counsel.
James P. Wilkens, Esq., of Akron, Ohio, for the Respondent.
Mary Balazs, Esq., of Cleveland, Ohio, for the Respondent.
137COMMERCIAL PROPERTY SERVICES
1 At all times since May 1, 1981, for unit A and November 1982 for unit
B.
David M. Fusco and Melvin Schwarzwald, Esqs., of Cleve-
land, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. On
October 7, 1987, the Building Service Local 47 Cleaning
Contractors Pension Plan and its Trustees and Local 47 Wel-
fare Fund No. 1 and its Trustees (Charging Parties) filed an
unfair labor practice charge against Commercial Property
Services, Inc. (Respondent or CPS) alleging that CPS vio-
lated Section 8(a)(1) and (5) of the National Labor Relations
Act (Act) by failing to permit auditors retained by the Charg-
ing Parties to audit CPS’ payroll records. The Regional Di-
rector for Region 8 issued his complaint and notice of hear-
ing on November 20, 1987, to which CPS timely answered.
Hearing was held on this matter on May 3, 1988, in Cleve-
land, Ohio. Briefs were received from the parties subse-
quently.
Based on the entire record and on my observation of the
demeanor of the witnesses and in consideration of the briefs
submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Ohio corporation with an office and place
of business in Cleveland, Ohio, has at all times material,
been engaged in the performance of janitorial and mainte-
nance services for various buildings. Respondent admits the
jurisdictional allegations of the complaint and I find that the
Respondent is now, and has been at all times material to this
proceeding, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Service, Hospital, Nursing
Home and Public Employees Union, Local 47, Service Em-
ployees International Union, AFL–CIO (Union) is now, and
has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act. The complaint allega-
tions that the Charging Parties have been agents of the above
Union within the meaning of Section 2(5) of the Act is de-
nied by Respondent and is one of the issues in this matter.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Statement of the Issues Presented for Determination
1. Whether the Union has been the designated exclusive
bargaining representative and recognized as such by Re-
spondent for employees in the units described as ‘‘Unit A’’
and ‘‘Unit B’’1 in paragraph 5 of the complaint, and whether
this unit constitutes a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
2. Whether the Charging Parties are agents of the Union
within the meaning of Section 2(13) of the Act.
3. Whether the Charging Parties’ assertion of their contrac-
tual right and request to audit Respondent’s payroll records
for the purpose of determining whether Respondent has made
appropriate contributions to the Union’s Pension Plan and
Welfare Fund No. 1, is necessary for, and relevant to, the
Union’s performance of its functions as the exclusive collec-
tive-bargaining representative of the units.
4. Whether Respondent’s refusal to permit the Charging
Parties to conduct an audit of its payroll records for the pur-
pose of determining whether Respondent has made appro-
priate contributions to the Union’s Pension Plan and Welfare
Fund No. 1 constitutes a violation of Section 8(a)(5) and (1)
of the Act.
(a) Whether the Charging Parties’ April 8, 1987 letter con-
stitutes a request for information that gives rise to an 8(a)(5)
duty to respond.
(b) Whether the unfair labor practice filed on October 7,
1987, was timely under Section 10(b) of the Act.
(c) Whether, by virtue of executing a settlement agreement
with Respondent in March 1987, the Union has waived its
right or is otherwise estopped from asserting the right to
compel Respondent to submit to an audit.
(d) Assuming the Charging Parties acted as agents of the
Union, whether the audit sought by the Charging Parties is
in any way relevant to Local 47’s role as the exclusive col-
lective-bargaining representative for Respondent’s employees
in units A and B.
B. Background Facts
The Respondent is an Ohio corporation with an office and
place of business in Cleveland, Ohio, where it has been en-
gaged in the performance of janitorial and maintenance serv-
ices for commercial, institutional, and rental buildings. Re-
spondent has operations throughout Ohio and at various loca-
tions around the country, including Cleveland, Akron, Cin-
cinnati, and Dayton, Ohio; Syracuse, New York; Louisville,
Kentucky; and Denver, Colorado Springs, and Pueblo, Colo-
rado. In the greater Cleveland/Akron area, approximately 180
of CPS’ current janitorial employees are arguably represented
by the Union. Approximately 80 to 90 others are represented
by Hotel, Restaurant, Bar and Service Workers Employees
Union Local 10. In Syracuse, CPS’ employees are rep-
resented by SEIU Local 200, and in Denver, they are rep-
resented by SEIU Local 105. In all other cities where Re-
spondent does business and in certain locations in Cleveland,
CPS’ janitorial employees are not represented by any labor
organization. CPS has two affiliated companies in the jani-
torial and maintenance industry that operate on a nonunion
basis, Cleveland Cleaning and Maintenance and GMI build-
ing services.
For some years, Respondent has had a collective-bargain-
ing relationship with the Union. The Union has represented
employees of the Respondent employed at various locations.
The Union and the Respondent have entered into a number
of collective-bargaining agreements covering Respondent’s
employees at various locations.
One such collective-bargaining agreement covered employ-
ees described as ‘‘Unit A’’ in the complaint. That contract
is commonly referred to as the ‘‘Janitorial Agreement.’’ The
most recent of such agreements was effective by its terms
from May 1, 1981, through April 1, 1984. Michael Murphy,
who currently serves as secretary-treasurer and business
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agent for the Union and as trustee for both Charging Parties,
testified that the janitorial agreement covered employees at
various sites. While the parties were involved in negotiations
for a new janitorial agreement the Respondent provided the
Union with a list of locations covered by the agreement.
With respect to this list, CPS offered testimony that by 1987,
it has lost through competitive bidding most of the major ac-
counts previously covered under the janitorial agreement.
Approximately 50 percent of the total number of employees
previously covered under the janitorial agreement when that
agreement expired in 1984 were no longer working for Re-
spondent by 1987.
Pursuant to the terms of the janitorial agreement, Respond-
ent participated in both Local 47 Welfare Fund No. 1 (wel-
fare fund), and Building Service Local 47 Cleaning Contrac-
tors Pension Plan (pension plan).
While the parties did engage in negotiations towards a suc-
cessor agreement, no such agreement was ever reached. Re-
spondent asserts that the parties were unable to reach agree-
ment on new janitorial agreement primarily due to an on-
going dispute between the Union and Respondent concerning
the scope of the unit covered by the Agreement. Specifically,
CPS opposed the Union’s insistence on the continued inclu-
sion of article XXI, which provided in relevant part:
This Agreement hereby covers as an Employer subject
to the full terms of this Agreement any individual pro-
prietorship, partnership, corporation firm, or any other
entity which is engaged in janitorial work and is in any
way a subsidiary or related entity to any Employer cov-
ered by this Agreement. Specifically and without limita-
tion, this Agreement hereby includes any entity engaged
in janitorial work which is operated in whole or in part
by any officer, director, or any person employed by any
Employer covered by this Agreement and further in-
cludes any entity engaged in janitorial work in which
any investor in any Employer covered by this Agree-
ment has any interest of any kind.
In Respondent’s view, insistence on this language was un-
lawful because it would have required CPS to extend rec-
ognition to the Union with respect to nonunion entities oper-
ating in Cleveland based solely on some remote relationship
to CPS and its officer and directors. The Union attempted to
enforce article XXI in 1982 by suing both CPS and Cleve-
land Cleaning Maintenance in Federal district court seeking,
in effect, to bind Cleveland Cleaning and Maintenance to the
janitorial agreement.
CPS filed an unfair labor practice charge with the Board
on November 16, 1984, alleging that the above quoted por-
tions of article XXI was illegal, and the Union’s insistence
on it violated the Act. Complaint issued; however, the Board
proceeding was dismissed pursuant to the parties’ March
1987 settlement agreement, but no successor janitorial agree-
ment was ever agreed to between the parties. Subsequent to
the failure of negotiations, Respondent implemented a series
of changes or modifications to the expired agreement. The
Union was informed of these changes by letters from various
agents of the Respondent. The letters which are pertinent to
the instant matter modified the Respondents’ obligation to
make contributions to the welfare and pension funds.
By letter dated May 14, 1984, Respondent informed the
Union that it would make no pension contributions for new
employees at new accounts and would contribute $0.10 per
hour to the Welfare fund only for employees working at ac-
counts within Cuyahoga County. The letter further informed
the Union that no contributions would be paid to the welfare
fund or the pension fund for employees servicing accounts
in Summit County or Portage County or any other county
other than Cuyahoga and Lorain Counties.
By letter dated November 29, 1985, the Union was in-
formed that effective January 1, 1986, Respondent would no
longer contribute to the welfare fund. To date Respondent
continues to participate in the pension fund. The parties also
entered into a supplemental agreement in relation to sites
covered by the janitorial agreement.
The Union and the Respondent have been signatory to a
series of agreements covering employees listed as ‘‘Unit B’’
in the complaint, the most recent of which was effective by
its terms from November 7, 1982, through November 6,
1985. The date of execution of the agreement is March 27,
1987. The contract as signed on that date as a result of the
settlement of a series of disputes between the parties and was
the end result of lengthy settlement discussions. The contract
is commonly referred to as the ‘‘Site Agreement’’ or
‘‘Downtown Agreement.’’
Pursuant to the terms of the site agreement, Respondent
has participated in the pension fund and continues to do so
for the employees employed at the remaining location, 3101
Euclid, Cleveland. Under this agreement, the Respondent was
never obligated to make any contributions to the welfare
fund. By letter dated August 7, 1985, Respondent terminated
the site agreement effective November 6, 1985, and the
Union sent Respondent a similar letter dated August 21,
1985.
Finally, the parties have entered into a separate collective-
bargaining agrement for Respondent’s employees working at
the Erieview Plaza Building downtown Cleveland. This rep-
resents the parties’ first contract at that site and is effective
by its terms from December 20, 1985, through January 15,
1989. Pursuant to the provisions of the Erieview agreement,
Respondent participates in the Union’s pension fund.
As will be discussed in more detail, the Trustees of both
funds are charged with the responsibility of ensuring that em-
ployers who participate in the funds are in compliance with
their obligations as set forth in various collective-bargaining
agreements. Trustees of the funds derive their power to act
from trust documents in the collective-bargaining agreements.
Murphy testified that the Union negotiates provisions of the
collective-bargaining agreements which require an employer
to contribute to the funds. Administration of the funds is del-
egated to the Trustees.
The collective-bargaining agreements at issue, as well as
the trust instruments, permit the Trustees to conduct audits
of Respondent’s payroll records to determine whether Re-
spondent has fulfilled its responsibilities as outlined in the
collective-bargaining agreements. Such audits have, in fact,
been conducted in the past.
In May 1980, the Charging Parties sued CPS in Federal
district court seeking to recover allegedly delinquent con-
tributions for the years 1975 through 1977 and the period
from January 1 through June 30, 1979. The 1980 dispute
over allegedly delinquent contributions and the Charging Par-
139COMMERCIAL PROPERTY SERVICES
ties’ right to conduct an audit arose primarily because Re-
spondent objected to the request for audit 4 years after con-
tributions were made. Because of the nature of its business
and the big turnover in employees, CPS insisted that audits
be conducted in a more timely fashion in order to minimize
auditing mistakes.
When the Federal court litigation was resolved in June
1980, it was agreed between CPS and the Charging Parties
that CPS would permit an audit, but that it would not be as-
sessed any penalties for any deficiencies dating back to the
years 1975 through 1977. It was also agreed that the audit
would be completed within 90 days of execution of the set-
tlement agreement. The settlement agreement also contained
a provision requiring that future audits of CPS by the Charg-
ing Parties ‘‘shall be conducted expeditiously.’’ CPS con-
tends that it understood ‘‘expeditiously’’ to mean within 90
days after the June 30 end of its fiscal year.
Twice in 1983, the Charging Parties requested and CPS re-
fused to permit an audit of its business records. Con-
sequently, the Charging Parties brought suit against CPS in
Federal district court (the ‘‘Matonis suit’’) seeking to recover
allegedly delinquent contributions owed pursuant to the jani-
torial agreement. The Matonis suit also sought to compel
CPS to submit to an audit of its business records. This law
suit is still pending in Federal district court.
By letter dated July 15, 1985, the Charging Parties re-
quested an audit of CPS’ payroll records to ascertain whether
CPS had made appropriate contributions for the period July
1, 1984, through June 30, 1985. Though that audit was com-
menced, the parties disagree as to whether it was completed.
In Respondent’s view the auditors had done all they needed
to do to ascertain CPS’ compliance with its contractual com-
mitments. The auditors had a different view due to a long-
standing dispute as to the scope of bargaining unit rep-
resented by the Union.
On April 8, 1987, the Charging Parties, purportedly acting
as agents of the Union, requested Respondent to allow them
to audit Respondent’s payroll records for the purpose of de-
termining whether Respondent had made appropriate con-
tributions to the Union’s welfare and pension funds. Re-
spondent, to date, has refused to permit the Charging Parties
to perform the requested audit. General Counsel contends
that Respondent’s failure to permit the Charging Parties to
have access to its payroll records constitutes a violation of
Section 8(a)(1) and (5) of the Act as the requested informa-
tion is necessary for, and relevant to, the Union’s perform-
ance of its function as the exclusive collective-bargaining
representative of employees of Respondent.
C. Representative Status of the Union with Respect to
and the Appropriateness of ‘‘Units A and B’’
1. ‘‘Unit A’’
Section 8(a)(5) of the Act makes it an unfair labor practice
for an employer to refuse to bargain collectively with the
representatives of its employees, subject to the provisions of
Section 9(a). One of the provisos of Section 9(a) is that the
exclusive representative for purposes of collective bargaining
must represent a majority of the employees ‘‘in a unit appro-
priate for such purposes.’’
General Counsel contends that the Union has, since at
least May 1, 1981, been the designated exclusive collective-
bargaining representative of employees in ‘‘Unit A,’’ that
‘‘Unit A’’ is an appropriate unit, and that since the date has
been recognized as such by Respondent. Such recognition
has been embodied in a series of collective-bargaining agree-
ments, the most recent of which was effective from May 1,
1981, through April 30, 1984. Further, since at least May 1,
1981, the Union, by virtue of Section 9(a) has been, and is,
the exclusive collective-bargaining representative of employ-
ees in an appropriate unit for the purpose of collective bar-
gaining with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
Murphy testified that the Union and the Respondent have
been parties to at least three 3-year agreements covering the
employees of Respondent in the unit described in the com-
plaint as ‘‘Unit A.’’ This unit description is as follows:
All of Respondent’s employees engaged in janitorial
work at sites not covered by site agreements, excluding
any such employees working fifteen hours or less in an
account where only one employee is engaged, if such
account is not owned or operated by an entity which
operates in more than one location serviced by the em-
ployer, excluding also office clerical employees and su-
pervisors as defined in the Act.
Respondent contends that the above-described unit is no
one appropriate for collective-bargaining stressing that it has
no apparent geographic limitations and could conceivably
cover all of its employees nationwide. It further contends that
the General Counsel failed to meet her burden of proof by
adducing evidence to support this broad unit or even any
portion of it, noting that no evidence was offered that the
Union was ever certified as the collective-bargaining rep-
resentative for ‘‘Unit A’’ and no evidence was offered on
common management, common supervision, employee inter-
change, similarity in wages, hours or working condition, or
evidence of any other criteria recognized by the Board as
being significant in determining the appropriateness of a bar-
gaining unit.
I disagree with Repondent’s contentions in this reard Gen-
eral Counsel has shown that the Union has represented CPS’
janitorial and cleaning employees throughout the course of
all three janitorial agreements. The unit description is taken
from the most recent collective bargaining agreement be-
tween the parties. There is no evidence that the unit has ever
been comprised of other classifications of employees nor is
there any evidence that classifications of employees have
been improperly excluded from the unit. The parties have a
substantial bargaining history involving employees in this
kind of unit. In determining appropriate bargaining units, the
Board has long given substantial weight to prior bargaining
history. The Board is reluctant to disturb units established by
collective bargaining as long as those units are not repugnant
to Board policy or so constitued as to hamper employees in
fully exercising rights guaranteed by the Act. See Buffalo
Broadcasting Co., 242 NLRB 1105 (1979); Great Atlantic &
Pacific Tea Co., 153 NLRB 154 (1965). The Board has also
held that bargaining history may be determinative on the
issue of the appropriateness of a bargaining unit because it
is the only evidence adduced regarding the unit issue. Puerto
Rico Marine Management, 242 NLRB 181 (1979).
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Further, the parties have apparently limited the geographic
scope of the unit by means of lists of jobs covered. Such a
list was introduced into the record by Murphy. Murphy testi-
fied that many of sites involved at the time the contract ex-
pired are still serviced by Respondent’s employees at this
time. These sites are G.G. Nela Park, Austin Company, Cuy-
ahoga County Libraries, Rockside Plaza, Huntington Banks
and Severance. While Respondent has lost some of the ac-
counts covered by the janitorial agreement, the Respondent
has never notified the Union that it was withdrawing recogni-
tion from it as the exclusive collective-bargaining representa-
tive of employees in ‘‘Unit A’’ for that or any other reason.
Indeed, the evidence establishes that Respondent continues
to recognize the Union as the exclusive collective-bargaining
representative of employees in ‘‘Unit A’’ and continues to
deal with it as such. As noted above, the parties were not
able to reach a successor agreement to the one ending in
1984. However, subsequent to the failure of negotiations, Re-
spondent implemented a series of changes or modifications
to that agreement. Respondent informed the Union, by letter,
of its intent to modify the contract in certain respects. The
letters began in 1984 and continued through late 1985. Fur-
ther, in or about June 1987 Respondent sent the Union a
copy of an ‘‘Employee Disciplinary Notice’’ involving an
employee who worked for respondent at the Chagrin Falls
Huntington Bank. That is one of the sites covered by the
janitorial agreement. In or about April 4, 1988, Respondent
sent the Union a copy of such a notice involving an em-
ployee employed by Respondent at the Maple Heights Coun-
ty Library, also a site covered by the janitorial agreement.
On April 5, 1988, Murphy wrote to the Respondent inform-
ing it that the subject employee had filed a grievance and
asking for a meeting with regard thereto. Murphy testified
that he met with representatives of Respondent in mid-to-late
April 1988 to discuss the merits of the grievance. Respond-
ent continues to participate in the pension fund with regard
to ‘‘Unit A’’ employees.
On this issue, for all the reasons set forth above, I find
that the Union has been, and is, the exclusive collective-bar-
gaining representative of employees in ‘‘Unit A’’ which is
an appropriate unit for purposes a of collective bargaining
within the meaning of Section 9(b) of the Act, and that Re-
spondent has and continues to recognize it as such.
2. ‘‘Unit B’’
General Counsel contends that the Union has, since at last
November 7, 1982, been the designated exclusive collective-
bargaining representative of employees in ‘‘Unit B,’’ an ap-
propriate unit, and since that date has been recognized as
such by Respondent. Such recognition has been embodied in
successive collective-bargaining agreements, the most recent
of which was effective, by its terms from November 7 1982,
through November 6, 1985. Further, since at least November
7, 1982, the Union, by virtue of Section 9(a) of the Act, has
been, and is, the exclusive collective-bargaining representa-
tive of employees in an appropriate unit for the purposes of
collective bargaining.
As discussed earlier, the parties have entered into series of
agreements covering employees in unit B. Those agreements
are commonly referred to as the site agreements. The unit
description is taken from the most recent collective-bargain-
ing agreement between the parties and reads as follows:
All of Respondent’s regular employees engaged in jani-
torial work at the Ohio Savings Plaza, Penton Plaza,
Caxton, 3101 Euclid, One Playhouse, and 666 Euclid
Buildings in Cleveland, Ohio, excluding any such em-
ployees working fifteen hours or less in an account
where only one employee is engaged, office employees
and supervisors as defined in the Act.
There is no evidence that the unit has ever been comprised
of other classifications of employees nor is there any evi-
dence that any classifications of employees has ever been im-
properly excluded from the unit. The date of execution of the
contract is March 27, 1987. This contract was signed as a
result of the settlement of a number of disputes which ex-
isted between the parties, It is clear, therefore, that as of
March 27, 1987, the Respondent still recognized the Union
as the exclusive collective-bargaining representative of em-
ployees in ‘‘Unit B.’’
The record establishes that, at the present time, the only
site listed in the unit description which is still serviced by
employees in ‘‘Unit B’’ is the 3101 Euclid site. The Re-
spondent has never withdrawn recognition from the Union on
that, or any other basis. For all the reasons I found ‘‘Unit
A’’ appropriate, I also find ‘‘Unit B’’ appropriate. Moreover
as the request to audit extends back in time, most or all of
the sites listed in the unit description would be involved. Re-
spondent continues to participate in the union pension plan,
making contributions for employees at the 3101 Euclid site.
I find for the reasons set forth immediately above and
those set out in my findings with respect to ‘‘Unit A,’’ that
the Union has been, and is, the exclusive collective-bargain-
ing representative of employees in ‘‘Unit B,’’ which is an
appropriate unit, for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act, and that Re-
spondent has, and continues to recognize it as such.
D. Are the Charging Parties Agents of the Union
Within the Meaning of Section 2(13) of the Act?
General Counsel contends that the Charging Parties are
agents of the Union within the meaning of Section 2(13) of
the Act and the Respondent denies this relationship. Re-
spondent acknowledges the principle that as part of an em-
ployer’s 8(a)(5) obligation to bargain with a labor organiza-
tion representing its employees, an employer has a duty to
respond to the labor organization’s request for relevant infor-
mation. However, an employer does not owe such an obliga-
tion to provide information to entities other than a labor or-
ganization with which it has a duty to bargain.
As noted, Murphy is a Trustee of both funds as well as
union officer. Murphy testified that both funds have an equal
number of management and union representatives. The duties
of trustees of both funds include reviewing collective-bar-
gaining agreements, checking compliance therewith, approv-
ing audits and approving expenditures of funds. The Trustees
for both funds derive their power to act from the trust docu-
ments in the collective-bargaining agreements. The Union ne-
gotiates those provisions of the collective-bargaining agree-
ments which would require an employer to contribute to the
pension and/or welfare fund. The administration of the funds
is then delegated to the Trustees.
141COMMERCIAL PROPERTY SERVICES
As noted, pursuant to the provisions of the janitorial agree-
ment, the Respondent participated in both the welfare and
pension funds.
With regard to the welfare fund, article XII reads in perti-
nent part:
Section 1. Signatory to Plan
The Employer, by becoming signatory to this agree-
ment, agrees to be bound by the trust document estab-
lishing the Local No. 47 Welfare Fund No. 1 and the
Employer further hereby agrees to abide by all the rules
and regulations promulgated by the Trustees of said
fund, not inconsistent with this agreement.
Section 4. Examination of Employer’s Records
For any period of time not already audited by audi-
tors for the Trustees of the Welfare Fund, said auditors
shall be permitted to examine the Employer’s payroll
records, journals, general ledgers, tax returns as they
may apply to payroll only, and any other business
records required by the auditors to determine such Em-
ployer’s compliance with the coverage, reporting and
contributions provisions of this Agreement and of the
welfare fund . . . .
Section 6. Collection Action
The Trustees of the welfare fund may take any ac-
tion necessary and appropriate to enforce payment of
the contribution, fees and expenses, costs and liquidated
damages due from an Employer, including, but not lim-
ited to, proceedings at law and equity.
Identical provisions regarding the pension fund are found
at article IX of the janitorial agreement.
Pursuant to the terms of the site agreement, the Respond-
ent also agreed to be bound by the terms of the Pension
Trust document. Likewise, with regard to the Respondent’s
employees covered by the Erieview agreement, the Respond-
ent agrees to be bound by the terms of the Pension Trust
document. The Pension Trust document itself makes ref-
erence to the collective-bargaining agreement. The document
states that participating employers make contributions to the
trust funds in such amounts as are specfied in the collective-
bargaining agreements.
The following language is found in the amendment to the
pension plan dated September 2, 1979:
B. Examination of Employer’s Records and
Underpayment
B. Examination of Employer’s Records and Under-
payment of Contributions For any period of time not al-
ready audited by the Trust Fund’s auditors, they shall
be permitted to examine the Employer’s payroll
records, journals, general ledgers, tax returns as they
may apply to the payroll only, and any other business
records required by the auditors to determine such Em-
ployer’s compliance with the coverage, reporting and
contribution provisions of this pension plan. Such ex-
amination will be conducted by an accountant selected
by the Trustees, and unless otherwise agreed in writing
between the Trustees and an Employer, such examina-
tion will not be conducted more frequently than once
a year.
The trust instrument for the welfare fund also references
the collective-bargaining agreement. The following language
is found at page 1 of the document:
That whereas the Union and the Employers have en-
tered into a collective-bargaining agreement, which, in
addition to the other provisions, establishes the Local
No. 47 Welfare Fund No. 1 and provides that each Em-
ployer—signatory shall pay to such Fund, a sum of
money as set forth in the current collective-bargaining
agreement . . . .
. . . the said sums . . . are for the purpose of provid-
ing insurance and other benefits to those of its employ-
ees who are covered by the said Collective Bargaining
Agreement . . . .
By letter dated April 8, 1987, Melvin Schwarzwald, in his
capacity as attorney for the trustees of the pension plan and
welfare fund, inquired whether CPS would submit to an
audit. The letter was sent ‘‘in regard to the pending lawsuit
which was brought by the pension plan and Welfare Fund’’
against Respondent. The stated purpose of an audit was ‘‘to
let it be established if there are any further disputes between
the parties.’’ The letter was not sent directly to CPS, but to
the attorney representing CPS in the Matonis suit. Respond-
ent seems to question whether this is an information request
and I hereby find that it is a proper request.
Respondent contends that the Trustees of the pension plan
and welfare fund cannot, as a matter of law, be agents of
Local 47 because of the role they play and the responsibil-
ities they possess under both the Employment Retirement
and Income Security Act of 1974, as amended, and Section
302(c)(5) of the Labor Management Reporting Act, as
amended. It urges that such a finding is mandated by the
holding of the Supreme Court in NLRB v. Amax Coal Co.,
453 U.S. 322 (1981).
However, in NLRB v. Teamsters Local 449, 728 F.2d 80,
88 (2d Cir. 1984), the circuit court spoke to this issue:
This is not to say that pension trustees can never act
as union agents and be subject to the Board’s jurisdic-
tion. That is a question implicitly left open by the Amax
decision, and one that we do not reach today. In Grif-
fith Co., 660 F.2d at 410, the court said that action by
the trustees may be attributed to the union in at least
three factual situations:
1. Where provisions of a collective bargaining agree-
ment remove the discretion to administer the trust funds
solely for the benefit of the employees of the trust fund
(Turner Brooks, 161 NLRB 229 (1966));
2. Where the trustees’ actions were in fact directed
by union officials (Jacob Transfer, Inc., 227 NLRB
1231, 1232 (1977)); or
3. Where the trustees’ acts were undertaken in their
capacities as union officials rather than as trustees
(NLRB v. Construction & General Laborers’ Union
Local 1140, 557 F.2d 16, 21 (8th Cir. 1981)).
See also Service Employees Local 1-J (Shor Co.), 273
NLRB 921, 931 (1984).
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find that the facts of the instant proceeding compels the
finding that the Charging Parties are agents of the Union
under both situations (1) and (2) set out above. The Union,
as the collective-bargaining representative, has the duty to
police the terms of the collective-bargaining agreement. The
Union is charged with the responsibility of ensuring that its
members receive benefits to which they are entitled. The
union has delegated certain of those responsibilities to the
Trustees. Further, the Respondent acceded to that delegation.
One of those delegated responsibilities is policing the collec-
tive-bargaining agreement to the extent that the Trustees
must ensure that the Respondent makes proper contributions
to the pension plan and welfare fund. The delegation of au-
thority gives the Charging Parties the duty to periodically
audit the Respondent’s payroll and other specified records to
achieve this end.
Further, I find that the language of the delegation of au-
thority constitutes an ongoing express direction by the Union
and its officials to periodically audit Respondent’s records to
ensure compliance with the terms of the collective-bargaining
agreement and trust agreements. This delegation of authority
and direction by the Union clearly does not contravene the
teachings of the Supreme Court in Amax, supra at 2774, that
‘‘the trustees have an obligation to enforce the terms of the
collective bargaining agreement regarding employee fund
contributions against the employer ‘for the sole benefit of the
beneficiaries of the fund.’’
In L & M Carpet Contractors, 218 NLRB 802 (1975), the
Board concluded that ‘‘the trustees of a trust fund which has
been provided for by the collective-bargaining agreement are
agents of each of the parties to such agreement’’ where the
trustees request an audit of a contributing employer’s payroll
records. Contrary to the urging of Respondent, I believe this
case still to be valid precedent within the factual framework
of the instant proceeding.
The Trustees were acting within the scope of their author-
ity in seeking to audit the books of Respondent. As the par-
ties agreed to permit the Trustees to administer the funds, the
only method available to the Union to determine whether Re-
spondent had fulfilled its obligations to union members, was
to seek the assistance of the Trustees, its agents for this pur-
pose. While the Trustees ability to act on behalf of the Union
may be limited by contract, trust agreement, and their statu-
torily imposed fiduciary directions, they were clearly operat-
ing within that scope in this matter. I find for all the reasons
set out above that the Charging Parties are agents of the
Union within the meaning of Section 2(13) of the Act insofar
as their specific actions in this proceedlng are concerned.
E. Was the Charging Parties’ Request for Information
Necessary for and Relevant to the Union’s Duties as
the Collective-Bargaining Representative of
Respondent’s Employees?
General Counsel contends that the Charging Parties asser-
tion of their contractual right and request to audit Respond-
ent’s payroll records for the purpose of determining which
Respondent has made appropriate contributions to the
Union’s pension plan and welfare fund is necessary for, and
relevant to, the Union’s performance of its functions as the
exclusive collective-bargaining representative of the units.
General Counsel further contends that Respondent’s refusal
to permit Charging Parties to conduct such an audit con-
stitutes a violation of Section 8(a)(1) and (5) of the Act. Re-
spondent denies the relevancy of the request.
As discussed above, the Trustees of the funds derive their
power to act from the collective-bargaining agreement. Such
responsibilities are delegated to the Trustees. One of their
primary responsibilities is to ensure that participating em-
ployers make appropriate contributions to the funds. Murphy
testified that employers who participate in the funds send in
monthly contribution report forms to the administrative office
of the appropriate fund. Those reports provide only an alpha-
betical listing of employees on whose behalf contributions
are being made. The reporting forms do not identify at which
accounts an employee may be working during the reporting
period. Employer contributions to the fund are based on
hours a particular employee works. The location at which an
employee works will also determine the appropriate contribu-
tion as evidenced by the contracts as well as the letters modi-
fying the janitorial agreement. Murphy’s testimony estab-
lishes that the only way for the funds’ Trustees to ascertain
whether contributions reported are adequate for the hours
worked is to audit an employer’s payroll records.
The record clearly establishes that such audits have been
conducted in the past. By letter dated July 15, 1985, Charles
Drake, accountant for the Trustees, wrote to Respondent re-
questing access to Respondent’s books for the purpose of
conducting an audit to determine whether Respondent had
complied with its contractual obligations regarding fund con-
tributions. That audit would cover the periods July 1, 1983,
through June 30, 1984, and July 1, 1984, through June 30,
1985. The Respondent agreed to permit the audit, as of
course it was required to do by contract, and the audit began
in September 1985.
Murphy testfied that the audit described above was begun
but was not completed. According to Murphy the audit was
postponed because of ongoing settlement discussions be-
tween the parties concerning fund delinquencies. Those set-
tlement discussions which were only partially successful,
were concluded in the spring of 1987. As noted earlier, the
site agreement was signed on March 27, 1987, as part of
these settlement discussions. When Murphy wrote to Re-
spondent requesting that the settlement agreement be signed
by March 19, 1987, Patrick Cassesse, Respondent’s president
reminded Murphy, by letter dated March 13, 1987:
As you are well aware, we have been meeting for al-
most one year now in an effort to resolve all pending
NLRB and court cases. Due to the complexity of these
cases and the substantial amount of money involved,
this process has required a significant effort on both our
parts to determine the potential liability and explore
possible solutions.
The settlement agreement has finally executed by the
Union and the Respondent on March 27, 1987. The Union
and the Respondent were not able to resolve all of their dif-
ferences regarding arrearages in the pension and welfare
fund. This is true despite the fact that such matters were
often discussed during settlement negotiations.
By letter dated April 8, 1987, Melvin Schwarzwald, coun-
sel for the Union and Fund Trustees, wrote to Respondent’s
then counsel, enclosing documents to complete the imple-
mentation of the settlement agreement. The letter went on to
143COMMERCIAL PROPERTY SERVICES
request that the Trustees be permitted to audit the Respond-
ent’s books to establish whether there were any further dis-
putes between the parties. The audit was requested through
June 30, 1986, but ‘‘preferably up to date.’’ Finally the letter
requested that Respondent’s attorney contact Schwarzwald
concerning the audit as well as any settlement possibilities
Respondent has refused to permit the Trustees to audit any
of its books or records. Cassesse testified that Respondent re-
fused to permit the audit because he felt that the Trustees
would look far beyond whatever scope of responsibility they
had. However, it should be noted that Cassesse never offered
to turn over any books or records to be audited nor was he
willing to discuss seriously possible limitations on the audit
to allay his fears.
The Trustees, as agents for the Union, sought information
from Respondent in order to determine whether unit employ-
ees were receiving appropriate benefit contributions. The
record establishes that the Trustees could only secure this in-
formation through an audit, the same procdure used in the
past.
It is well settled that, on request, an employer has a duty
to provide the union with information which is relevant to
the union in carrying out its statutory duties and responsibil-
ities. An employer’s refusal to furnish a union information
which is relevant to the Union’s proper performance of its
collective-bargaining responsibilities is an unfair labor prac-
tice under the Act. NLRB v. Acme Industrial Co., 385 U.S.
432, 435–436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S.
149, 151–154 (1956).
The sole criterion for determining whether information
must be produced is its relevance or reasonable necessity for
the Union’s proper performance of its representative role.
Where the information requested concerns wage rates, job
description, and other information pertaining to employees
within the bargaining unit, the information is presumptively
relevant. Pfizer, Inc., 268 NLRB 916 (1984); Boeing Co.,
182 NLRB 421, 425 (1970); Curtiss-Wright Corp., 145
NLRB 152 (1963), enfd. 347 F.2d 61, 69 (3d Cir. 1965);
Timken Roller Bearing Co., 138 NLRB 15 (1962) enfd. 325
F.2d 746, 750 (6th Cir. 1963), cert. denied 376 U.S. 971
(1964).
It is clear that the information sought herein is presump-
tively relevant. The Union has the duty to monitor or police
the collective-bargaining agreement and the trust agreements
created therein. The Union, through its agents, is seeking in-
formation to determine whether Respondent has properly
contributed to the benefit plan of unit employees. Respondent
admittedly has participated in both funds during the relevant
time periods and continues to participate in the pension fund
to date. Respondent has agreed to undertake an obligation to
contribute to these funds on behalf of bargaining unit em-
ployees. The Union represents those employees. The Union,
through its agents, seeks to determine whether Respondent
has fulfilled its obligation to unit members. The only way to
determine this is through an audit of its records. Respondent
has permitted such audits, as it is obliged to do, in the past.
Respondent’s refusal to do so now amounts to a violation of
Section 8(a)(1) and (5) of the Act.
F. Is the Charging Parties Action Barred by
Section 10(b) of the Act?
In its amended answer, Respondent contends that the un-
fair labor practice charges alleged in the complaint are barred
by Section 10(b) of the Act. As noted earlier, the request for
information occurred on April 18, 1987. The instant charge
was filed on October 7, 1987. Respondent has never re-
sponded to the Union’s information request. Therefore, both
the request for, and the refusal to, provide information oc-
curred within the period permitted under Section 10(b) of the
Act. While the information which is sought may have been
generated more than 6 months prior to the filing of the
charge, both the request for the information and Respond-
ent’s refusal to provide that information occurred within 6
months of the time the charge was filed.
Respondent argues that prior requests for some of the in-
formation sought herein. The last such request prior to the
instant one was made by letter dated July 15, 1985, from the
Trustee’s accountant to Respondent. This audit was allowed
by CPS and begun. However, at some unidentified point
thereafter, CPS considered the audit complete and evidently
refused to let it proceed further though the Union and the
Trustees’ consider this audit incomplete. The period covered
by this audit was July 1, 1983, through June 30, 1985. Mur-
phy testified that the audit was not completed because of set-
tlement discussions between the parties. As soon as those
settlement discussions were completed, and no resolution
achieved with I regard to the potential delinquencies at issue,
the Charging Parties requested the information at issue here-
in. I disagree. Clearly, if the Trustees considered the 1985
audit incomplete, Respondent’s refusal to allow its comple-
tion would have given rise to an unfair labor practice charge
as did its 1987 refusal. The Trustees have chosen to seek
remedy for the earlier refusal in Federal court, but could
have also sought relief from the Board. They did not and I
find that their request to audit Respondent’s books for the
period July 1, 1983, through June 30, 1985, is barred by Sec-
tion 10(b) of the Act.
I find that the instant unfair labor practices are not barred
by Section 10(b) of the Act nor does that Section operate to
limit the Charging Parties’ access to Respondent’s books to
a period of time 6 months before the charge was filed. The
audit request validly seeks to audit records back to July 1,
1985, the first date beyond the scope of the incomplete audit.
Because of litigation and prolonged settlement discussions,
no interim audit was requested and under the circumstances,
the failure to request an audit prior to April 1987 is reason-
able.
G. Have the Charging Parties Waived Their Right
to an Audit?
Respondent contends that, if the Charging Parties are
agents of the Union, the Union has waived its and their right
to compel an audit of Respondent’s books. The Respondent
reasons that the settlement agreement entered into between
the Union and Respondent on March 27, 1987, includes a
provision that the parties agree not to file an unfair labor
practice charge on any issue which was raised, or could have
been raised, in any prior unfair labor practice proceeding.
That agreement reads, in pertinent part:
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 I have found the request to be barred by Sec. 10(b) of the Act insofar as
it seeks an audit of Respondent’s books for a period of time prior to June 30,
1985.
such proscription against refiling shall be limited to un-
fair labor practice charges which relate to conduct oc-
curring prior to the execution of this agreement . . . .
According to Respondent, the Union thereby clearly and
unmistakably waived its right to request information by way
of the April 1987 letter. I disagree. Respondent had not re-
fused the Charging Parties access to its books until April
1987, after the settlement was signed. Thus the action by Re-
spondent which gives rise to the instant proceeding did not
occur prior to the execution of the settlement agreement.
Moreover, the parties understood at the time the settlement
agreement was signed that it did not resolve all matters in
dispute, and the potential arrearages not resolved would be
dealt with in a separate fashion. I cannot find that the Union
or the Trustees should be charged with the knowledge that
Respondent would refuse to allow an audit from the ending
date of the last one (June 30, 1985).
Respondent also argues that the Union is barred from ob-
taining the requested information by the terms of a 1980 set-
tlement agreement between the Trustees and Respondent.
Paragraph 3 of the agreement states in pertinent part:
3. It is further agreed that audits . . . shall be con-
ducted expeditiously.
While the April 1987 audit request involves a period of
time from 19832 to the present, this fact cannot be viewed
in isolation. The entire question of potential arrearages, in-
cluding audits, became involved in extensive settlement ne-
gotiations between the parties. Those negotiations included
proposals to settle all arrearages or anticipated arrearages in
fund contributions, thus obviating the need for an audit. Set-
tlement discussions concluded in March 1987 with no solu-
tion regarding all arrearages. The final documents to effec-
tuate that agreement were transmitted to Respondent on April
8, 1987. In that same letter, the request for information was
made. Such request must be considered, by any definition, to
be expeditious. The Union has not, therefore, failed to assert
its right for an unreasonable or an unexplained length of
time.
I find therefore, that the Charging Parties, as agents of the
Union, are not barred from obtaining the requested informa-
tion by virtue of Respondent’s claimed waiver or by the doc-
trine of laches and/or estoppel.
CONCLUSIONS OF LAW
1. Respondent, Commercial Property Services, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, Service, Hospital, Nursing Home and Public
Employees Union, Local 47, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Charging Parties, Building Service Local 47 Clean-
ing Contractors Pension Plan and its Trustees and Local 47
Welfare Fund No. 1 and its Trustees, are agents of the Union
within the meaning of Section 2(13) of the Act.
4. The following employees of Respondent, designated
herein as ‘‘Unit A,’’ ‘‘Unit B,’’ and ‘‘Unit C,’’ constitute
units appropriate for collective bargaining within the mean-
ing of Section 9(b) of the Act:
‘‘Unit A’’
All of Respondent’s employees engaged in janitorial
work at sites not covered by site agreements, excluding
any such employees working fifteen hours or less in an
account where only one employee is engaged, if such
account is not owned or operated by an entity which
operates in more than one location serviced by the em-
ployer, excluding also office clerical employees and su-
pervisors as defined in the Act.
‘‘Unit B’’
All of Respondent’s regular employees engaged in jani-
torial work at the Ohio Savings Plaza, Penton Plaza,
Caxton, 3101 Euclid, One Playhouse, and 666 Euclid
Buildings in Cleveland, Ohio, excluding any such em-
ployees working fifteen hours or less in an account
where only one employee is engaged, office employees
and supervisors as defined in the Act.
‘‘Unit C’’
All of Respondent’s regular employees employed as
freight operators, janitors, day matrons, cleaners and
dock attendants at Erieview Plaza Building, excluding
any such employees working fifteen hours or less per
week, office employees, guards and supervisors as de-
fined in the Act, and employees employed by the Em-
ployer at any other building.
5. The Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)(1) and
(5) of the Act by refusing to allow, on proper request, an
audit of its payroll records for the period July 1, 1985, to
the present for the purpose of determining whether Respond-
ent has made appropriate contributions to the Union’s pen-
sion plan and welfare fund No. 1. for Respondent’s employ-
ees in the units set out above.
6. The information requested by the Charging Parties, as
agents for the Union, is information necessary for, and rel-
evant to, the Union’s performance of its functions as the ex-
clusive collective-bargaining representative of the units set
out above.
7. The unfair labor practices found above are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (5) of the Act, it is recommended that Re-
spondent be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
145COMMERCIAL PROPERTY SERVICES
Specifically, it is recommended that Respondent be or-
dered to furnish the Charging Parties the information re-
quested on or about April 18, 1987, permitting the Charging
Parties to audit Respondent’s payroll records for its employ-
ees in ‘‘Units A, B, and C,’’ as described herein, for the pe-
riod July 1, 1985, to the present for the purpose of determin-
ing whether Respondent has made appropriate contributions
to the Union’s pension plan and Welfare Fund No. 1.
[Recommended Order omitted from publication.]