Kenmore Custodial Services Corp.

National Labor Relations Board - Board Decisions

Feb 5, 1980

247 N.L.R.B. 814 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kenmore Custodial Services Corp. and Service Em-
ployees International Union, Local 254, AFL-CIO.
Case -CA-16224
February 5, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENEI.IO AND TRUESDALE
Upon a charge filed on June 15, 1979,' by Service
Employees International Union, Local 254, AFL-
CIO, hereinafter referred to as the Union, and duly
served on Kenmore Custodial Services Corp., herein-
after referred to as Respondent, the General Counsel
of the National Labor Relations Board, by the Acting
Regional Director for Region 1, issued a complaint on
July 23 against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before an
administrative law judge were duly served on the
parties to this proceeding. Respondent failed to file an
answer to the complaint.
On November 27, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on December 3, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent requested and was granted an
extension of time, until January 2, 1980, in which to
file a response to the Notice To Show Cause; Respon-
dent has failed to file such a response. Therefore, the
allegations contained in the Motion for Summary
Judgment stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
' All dates hereinafter are 1979, unless otherwise indicated
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations in
the complaint, if no answer is filed, or any
allegation in the complaint not specifically denied
or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be admit-
ted to be true and shall be so found by the Board,
unless good cause to the contrary is shown.
The complaint and notice of hearing served on
Respondent specifically stated that unless an answer
to the complaint was filed within 10 days of service
thereof "all of the allegations in the Complaint shall be
admitted to be true and shall be so found by the
Board." According to the uncontroverted allegations
of the Motion for Summary Judgement, counsel for
the General Counsel informed Respondent by regis-
tered letter dated September 4 that it has not complied
with the Board's Rules and Regulations in that it had
not filed an answer to the July 23 complaint and
notice of hearing. This letter, sent after numerous
unsuccessful attempts on the part of counsel for the
General Counsel to contact Respondent by telephone,
further advised Respondent that if its answer to the
complaint and notice of hearing was not received in
the Region I office by September 14, then counsel for
the General Counsel would file a Motion for Summary
Judgment with the Board.
This September 4 letter was returned undelivered,
with the postal marking on the envelope, "Return to
Sender-Unclaimed."
On October 2, counsel for the General Counsel sent
another letter to Respondent, again advising it that it
had not filed an answer to the July 23 complaint and
further advising Respondent that if its answer to the
complaint was not received in the Region I office by
October 15, then counsel for the General Counsel
would file a Motion for Summary Judgment with the
Board.
Two copies of this October 2 letter were sent to
Respondent-one by registered mail and one by first-
class mail. The registered mail letter was returned
undelivered, with the postal marking on the envelope,
"Return To Sender-Unclaimed." The letter sent by
first-class mail was not so returned.
No answer to the complaint had been filed as of the
date of the filing of counsel for the General Counsel's
Motion for Summary Judgment, and Respondent has
not filed any response to the Board's Notice To Show
Cause.
No good cause for failure to file an answer having
been shown, in accordance with the rules set forth
247 NLRB No. 104
814
KENMORE CUSTODIAL SERVICES CORP.
above, the allegations of the complaint are deemed to
be admitted. Accordingly, we find as true all the
allegations of the complaint and grant the Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent Kenmore Custodial Services Corp. is,
and has been at all times material herein, a corpora-
tion duly organized under and existing by virtue of the
laws of the Commonwealth of Massachusetts, with its
principal office and place of business at 858 East
Second Street, Boston, Massachusetts, where it is
engaged in providing janitorial services to commercial
and industrial accounts within the Greater Boston
area.
Respondent, in the course and conduct of its
business, causes, and has caused at all times material
herein, large quantities of cleaning supplies and
equipment used by it in its janitorial services to be
purchased and transported in interstate commerce
from and through various States of the United States
other than the Commonwealth of Massachusetts. In
the course and conduct of its business operations,
Respondent annually provides janitorial services val-
ued in excess of $50,000 to companies which are
engaged in commerce within the meaning of the Act.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Service Employees International Union, Local 254,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNION'S REPRESENTATIVE STATUS
All employees engaged in the Contract Building
Cleaning Industry, wherever employed in the covered
territory performing janitorial services, including all
janitors, porters, cleaners, doormen, elevator opera-
tors, starters, handymen and groundsmen, mainte-
nance tradesmen, if not previously covered by agree-
ments with other unions and if expressly agreed to by
the signatory, but exclusive of: all executive, salaried
supervisors, sales employees, and clerical employees,
hourly paid supervisors, foremen, and all employees
who do not regularly work in excess of 15 hours per
week provided, however, that these employees are not
on a regularly assigned schedule, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
At all times material herein, a majority of the
employees of Respondent in the above-described unit
have designated or selected the Union as their repre-
sentative for the purpose of collective bargaining with
Respondent. At all times material herein, the Union
has been the representative for the purpose of collec-
tive bargaining of a majority of the employees in the
said unit, and by virtue of Section 9(a) of the Act has
been and is now the exclusive representative of all the
employees in the said unit for the purpose of collective
bargaining with respect to rates of pay, wages, hours
of employment, or other conditions of employment.
IV. THE UNFAIR I ABOR PRACTICES
Since on or about January 15, and continuing to
date, the Union has requested Respondent to furnish
the Union with the names of all employees, their dates
of hire, their hours of work, their hourly rate, and
their job location. Since on or about January 15,
Respondent has failed and refused to furnish the
above-described information.
We find that this information is necessary for, and
relevant to, the Union's performance of its function as
the exclusive collective-bargaining representative of
the employees in question. Accordingly, we find that
since on or about January 15, and at all times
thereafter, by refusing to provide the Union with the
above-described information, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (I) of the Act.
V. THE EFFECT OF THE UNFAIR ABOR
PRACTICES UPCN COMMERCE
The activities of Respondent set forth in section Iv,
above, occurring in connection with its operations
described in section , above, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, provide the Union with the above-described
information.
815
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
i. Respondent Kenmore Custodial Services Corp. is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Service Employees International Union, Local
254, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees engaged in the Contract Building
Cleaning Industry, wherever employed in the covered
territory performing janitorial services, including all
janitors, porters, cleaners, doormen, elevator opera-
tors, starters, handymen and groundsmen, mainte-
nance tradesmen, if not previously covered by agree-
ments with other unions and if expressly agreed to by
the signatory, but exclusive of: all executive, salaried
supervisors, sales employees, and clerical employees,
hourly paid supervisors, foremen and all employees
who do not regularly work in excess of 15 hours per
week provided, however, that these employees are not
on a regularly assigned schedule, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The above-named labor organization has been
and is now the exclusive representative of all employ-
ees in the aforesaid appropriate unit for the purpose of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing, since on or about January 15, 1979,
and at all times thereafter, to furnish the Union with
the names of all employees, their dates of hire, their
hours of work, their hourly rate, and their job
location, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) of the At.
6. By the aforesaid refusal to provide information,
Respondent has interfered with, restrained, coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Kenmore Custodial Services Corp., Boston, Massa-
chusetts, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to provide the Union with the names of
employees, their dates of hire, their hours of work,
their hourly rate, and their job location. The appropri-
ate unit is:
All employees engaged in the Contract Building
Cleaning Industry, wherever employed in the
covered territory performing janitorial services,
including all janitors, porters, cleaners, doormen,
elevator operators, starters, handymen and
groundsmen, maintenance tradesmen, if not pre-
viously covered by agreements with other unions
and if expressly agreed to by the signatory, but
exclusive of: all executive, salaried supervisors,
sales employees, and clerical employees, hourly
paid supervisors, foremen and all employees who
do not regularly work in excess of 15 hours per
week provided, however, that these employees are
not on a regularly assigned schedule.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act:
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, provide the Union with the
names, dates of hire, hours of work, hourly rate, and
job locations of the employees in the above-described
unit.
(b) Post at its Boston, Massachusetts, facility copies
of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region , in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
: In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
816
KENMORE CUSTODIAL SERVICES CORP.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Angency of the United States Government
WE WILL NOT refuse to provide Service Em-
ployees International Union, Local 254, AFL-
CIO, the names of our employees in the unit
described below, their dates of hire, their hours of
work, their hourly rate, and their job location.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, provide Service Em-
ployees International Union, Local 254, AFL-
CIO, with the names, dates of hire, hours of
work, hourly rate, and job locations of the
employees in the following unit:
All employees engaged in the Contract Build-
ing Cleaning Industry, wherever employed in
the covered territory performing janitorial
services, including all janitors, porters, clean-
ers, doormen, elevator operators, starters,
handymen and groundsmen, maintenance
tradesmen, if not previously covered by agree-
ments with other unions and if expressly
agreed to by the signatory, but exclusive of: all
executive, salaried supervisors, sales employ-
ees, and clerical employees, hourly paid super-
visors, foremen and all employees who do not
regularly work in excess of 15 hours per week
provided, however, that these employees are
not on a regularly assigned schedule.
KENMORE CUSTODIAL SERVICES CORP.
817