Team Clean, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 2006

348 N.L.R.B. 1231 (N.L.R.B. 2006)

TEAM CLEAN, INC.
348 NLRB No. 86
1231
Team Clean, Incorporated and Unite Here! Local 5.
Case 37–CA–6905–1
December 7, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, KIRSANOW, AND WALSH
On January 13, 2006, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply.
The National Labor Relations 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,1 and conclusions and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Team Clean, Incorporated,
Honolulu, Hawaii, its officers, agents, successors, and
assigns shall take the action set forth in the Order.

1 The Respondent excepted only to the judge’s decision to deny its
request to defer to arbitration the parties’ dispute over the Union’s
request for information. The Board has consistently refused to defer
information disputes to arbitration. See, e.g., Shaw’s Supermarkets,
339 NLRB 871 (2003); United Technologies Corp., 274 NLRB 504
(1985); General Dynamics Corp., 268 NLRB 1432 (1984).
Members Schaumber and Kirsanow view the information request to
be encompassed by the parties’ contractual arbitration clause and would
defer the request to arbitration. In the absence of a majority to reverse
Board precedent in this case, however, they agree to apply current
Board law and adopt the judge’s decision.
Chairman Battista notes that under Collyer Insulated Wire, 192
NLRB 837 (1971), a fundamental prerequisite for deferral to arbitration
is that the issue be arbitrable. In this case, the arbitration clause covers
disputes “concerning the interpretation or application of, or compliance
with provisions of this Agreement.” The agreement contains no con-
tractual provision as to information. Thus, the informational dispute is
not arbitrable, and Chairman Battista would not defer.
Chairman Battista does not pass on whether the informational alle-
gation would be deferrable if it were covered by the arbitration clause.
He recognizes that there is Board law stating that information allega-
tions are not deferrable even if covered by a contractual arbitration
clause. In an appropriate case, he would reconsider that doctrine.
However, for the reasons set forth above, it is unnecessary to reach that
issue here.
Dale K. Yashiki, Esq., for the General Counsel.
Bryan P. Andaya, Esq. (Imanaka, Kudo & Fujimoto), of Hono-
lulu, Hawaii, for the Respondent.
Jennifer Cynn, Esq., of Honolulu, Hawaii, for the Union.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried by telephone conference call on December 13, 2005.
The parties were represented by counsel located in Honolulu,
Hawaii, and I was located in Los Angeles, California. At the
conclusion of the hearing and following closing arguments I
issued a bench decision pursuant to Section 102.35(a)(10) of
the Board’s Rules and Regulations, setting forth findings of fact
and conclusions of law. In accordance with Section 102.45 of
the Board’s Rules and Regulations, I certify the accuracy of the
portion of the transcript containing the bench decision as cor-
rected below; it is attached as Appendix A. [Corrections to
transcript omitted from publication.]
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Team Clean, Incorporated, Honolulu, Ha-
waii, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to bargain collectively by failing to furnish
UNITE HERE! Local 5 and failing to furnish UNITE HERE!
Local 5 in a timely fashion, with requested information that is
relevant to fulfilling its role as the collective-bargaining repre-
sentative of the unit employees.
(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 effec-
tuate the policies of the Act.
(a) Provide UNITE HERE! Local 5 with the information
concerning the bargaining unit members’ current addresses and
telephone numbers, rates of pay, and weekly work schedules.
(b) Within 14 days after service by the Region, post at its fa-
cility in Honolulu, Hawaii, copies of the attached notice marked
“Appendix.”2 Copies of the notice, on forms provided by the
Regional Director for Region 37, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,

1 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.
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1232
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since May 2,
2005.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain collectively by failing to fur-
nish UNITE HERE! Local 5, and failing to furnish UNITE
HERE! Local 5 in a timely fashion, with requested information
that is relevant to fulfilling its role as the collective-bargaining
representative of the unit employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL provide UNITE HERE! Local 5 with the informa-
tion concerning the bargaining unit members’ current addresses
and telephone numbers, rates of pay, and weekly work sched-
ules.
TEAM CLEAN, INCORPORATED
APPENDIX A
38
speak for itself—but it did contain some basic—I think, origi-
nally contained the name of the employee, social security num-
ber, hire date, total wages and some other information regard-
ing the union dues.
I would like to note that an improvement was made pursuant
to the request beginning the 2005 monthly union dues report
where the Employer added the following category to the infor-
mation provided—in addition to what was already being pro-
vided, the property at which each employee works as requested
by the Union and also in Exhibit 16 with the October 2005
monthly reports. Again, another effort to attempt to comply
with the Union’s request.
But other than that, Judge, I have no further comments and I
would submit on the record.
JUDGE KOCOL: All right. Thank you, Mr. Andaya.
Pursuant to the Board’s rules and regulations the following
shall constitute my decision in this case. The facts are fully set
forth in the stipulation of facts. On through some the material
facts now, the charge in this case was filed by the Union on
July 21, 2005. And, incidentally, all
39
dates are in 2005 unless I otherwise indicate.
And it was served on Respondent, the charge was, on July
22. The first amended charge in this case was filed by the Un-
ion on September 16th and a copy was served on Respondent
on September 19th.
At all times material, Respondent, a corporation with an of-
fice and a place of business in Honolulu, Hawaii, has been en-
gaged in the business of providing cleaning services.
During the 12-month period ending August 31, Respondent
in conducting its business operations that I have described pro-
vided services valued in excess of $50,000 to other enterprises
within the State of Hawaii, including Sheraton Hotels in Wai-
kiki, Hilton Hawaiian Village Beach Resort and Spa, and Ka-
hala Mandarin Oriental Hotel.
At all times material Respondent has been an employer en-
gaged in commerce within the meaning of 2(2), (6) and (7) of
the National Labor Relations Act, and the Union has been a
labor organization within the meaning of 2(5) of the Act.
At all times material Brian K. Benz, has held the position of
vice president of operations for Respondent and has been a
supervisor within the meaning of section 2(11) and an agent of
Respondent
40
within the meaning of section 2(13).
At all times material Florence Ramiscal—I’m sorry; I’ll spell
that—R-a-m-i-s-c-a-l has held the position of human resources
director and has been a supervisor within the meaning of sec-
tion 2(11) and an agent of Respondent within the meaning of
section 2(13) of the Act.
The following employees constitute an appropriate unit for
purposes of collective bargaining within the meaning of Section
9(b) of the act. “All employees performing at work covered by
the September 1, 1992 collective bargaining agreement be-
tween Respondent and the Union.”
At all times since at least September 1, 1992, based on Sec-
tion 9(a) of the Act, the Union has been the designated exclu-
sive collective bargaining representative of the unit and since
then the Union has been recognized as the representative by
Respondent.
This recognition has been embodied in a collective bargain-
ing agreement effective from September 1, 1992, until such
time as the Employer discontinues operations or until the par-
ties mutually agree to reopen or terminate that agreement.
TEAM CLEAN, INC. 1233
41
On or about May 2, Union organizer Lito Rigor requested by
letter that Respondent furnish the Union with “copies of senior-
ity listings with date of hire, current wages including weekly
work schedule, for Hilton Team Clean, Sheraton Team Clean
and Kahala Mandarin Team Clean.”
On about May 25, Rigor sent a second request, the letter
stated “attached is a copy of the letter that was faxed to you last
May 2, 2005 requesting information for all Team Clean em-
ployee.”
The parties have agreed—the General Counsel and the Un-
ion have agreed that the second letter requests nothing more
than what was requested in the first letter of May 2.
On or about June 24, the Union requested that Respondent
furnish the Union with “an updated seniority list containing our
members’ names, addresses, phone numbers, the property the
member works at, which department he or she works in and his
or her rate of pay” and “updated weekly work schedules for the
Team Clean members who are working at the Sheraton Hotels
in Waikiki, the Hilton Hawaiian Village Beach Resort and Spa,
and the Kahala Mandarin Oriental Hotel.”
On or about July 28, the Union filed
42
grievance number 613-05. The Union claimed the grievance—
the Union—I’m sorry. The Union claimed in the grievance that
quote—I’m sorry—no quote, that the Employer violated Sec-
tion 13 of the collective bargaining agreement.
Section 13 of the collective bargaining agreement provides
“the purpose of seniority is to accord consideration to senior
employees in recognition of their length of service to their em-
ployer. Seniority is intended to provide maximum work oppor-
tunity to senior employees.”
On or about August 9, the Union filed grievance number
682-05 with Respondent alleging that Respondent’s unit—
bargaining unit employees were not provided the proper wage
rate.
Now, on or about August 24, Respondent through its attor-
neys, submitted its position statement to the charge in which it
argued in large part for a deferral of the instant charge to arbi-
tration.
In a letter dated August 24, Respondent acknowledged re-
ceipt of the Union’s request for information dated May 2, May
25th and June 24 and informed the Union that Respondent con-
sidered the information request to be related to the grievances
43
that I’ve described previously.
Now, at all times relevant, Respondent has provided to the
Union monthly dues reports. These dues reports lists the em-
ployee’s name, social security number, hire date, release date,
total wages, union dues and initiation fees.
The Respondent prepared a monthly union dues report for
the month of July and provided it to the Union.
Beginning the August 2005 monthly dues report Respondent
added the following category to its report, in addition to that
which had been provided in previous months; the Respondent
included the property at which each employee works, so it’s
clear by at least some point in September, Respondent began
providing that information that the Union had requested in its
June 24 letter.
To date, Respondent has not received the following re-
quested information: Bargaining unit members’ current ad-
dresses; bargaining unit members’ current telephone numbers;
each bargaining unit members’ current rate of pay; the weekly
work schedules for bargaining unit members by property, the
Sheraton Hotels in Waikiki, the Hilton Hawaiian Village Beach
Resort and Spa and the Kahala Mandarin
44
Oriental Hotel.
Respondent contends it does not maintain a seniority list and
the Union has no knowledge to the contrary.
Those are my findings of fact.
With regard to the legal standard, under Section 8(a)(5) in
one of the Act, the Employer must provide to Union requested
information that has at least probable relevance and use to the
Union in fulfilling its role as the collective bargaining represen-
tative of the employees. NLRB v. Acme Industrial Co., 385
U.S. 432 (1967); U.S. Postal Service, 280 NLRB 685 (1986).
The standard used to ascertain relevancy is similar to that
used in discovery. The requested information need not be dis-
positive, it only need have some bearing on the issue. The W-L
Holding Co., 272 NLRB 1239 (1984). The duty to supply in-
formation includes the duty to do so in a timely fashion. Mary
Thompson Hospital, 296 NLRB 1245, 1250 (1989). And un-
justified delay in providing requested and relevant information
violates Section 8(a)(5) of the Act. Finn Industries, Inc.—
that’s spelled F-i-n-n Industries, Inc. 314 NLRB 556 (1994).
The first issue I’m going to address is
45
Respondent’s contention that this matter should be deferred to
arbitration.
It’s been the Board’s consistent policy for decades, virtually
since the issuance of the General Counsel’ guidelines back in
the 1970s in that request for information matters are not de-
ferred to arbitration. I have read the decision cited by Respon-
dent wherein the two board members indicated willingness to
overrule that precedent, but, of course, I’m bound by Board
precedent and I may not follow the dissenting opinions.
So based upon that reasoning, the fact that the Board law
remains such that refusals to provide information are not de-
ferred under Collyer, the request for deferral is denied.
Turning now to the merits of the case. I first want to address
the issue of seniority lists. And I will dismiss the allegation in
the complaint concerning seniority lists because the evidence
shows and I have found essentially that the Union has been
provided on a monthly basis with the name and hire date of all
bargaining unit employees. That is sufficient for the Union to
create its own seniority list if it so desires.
The General Counsel has argued that the
46
seniority lists alone, and that is the date of hire alone, is of not
much value because there is—the seniority is determined by
location.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1234
However, I agree with Respondent that the request of May 2
and May 24 aren’t specifically requests seniority lists by loca-
tion, and that by providing the date of hire Respondent has
effectively supplied the information concerning the seniorities.
Turning now to the other information requests. Concerning
the bargaining unit’s current address, I find merit in that allega-
tion. I note that Respondent argues that with regard to the au-
thorization card signed, they apparently have the address on
them, but the request the Union made was for current ad-
dresses. And the Union—I’m sorry—and the Respondent has
an obligation to provide that information that is presumptively
relevant and the information that may have been supplied on
the authorization cards is not necessarily the current address of
the employees.
I also find merit in the allegation that Respondent failed to
provide the current telephone numbers for the same reason I
have indicated previously.
47
With regard to the request for bargaining unit members rate
of pay, I differentiate between the wages which Respondent has
provided to the Union in the monthly reports and which I find
no merit in any allegation that the Respondent has failed to
provide wages.
I dwell on that a moment because there’s been no request in
terms from the Union—in terms of whether they want weekly
wages, monthly wages et cetera. And I think that the Union’s
monthly dues report adequately supplies the Union with any
information requested concerning wages.
But with regard to rates of pay, that’s different. I don’t see
in the union report any indication—the union’s dues reports any
indication that rates of pay have been supplied to the Union, so
I find merit in the allegation that Respondent has unlawfully
failed to provide the employees current rate of pay.
I’ve already dealt with the seniority lists. I dismiss that alle-
gation.
Finally, I find merit in the allegation that Respondent has
failed to provide the weekly work schedules for bargaining unit
members in the three properties at issue in this proceeding.
48
The fact that they are posted every week is not a defense.
The Respondent is obligated to supply the Union with the in-
formation, not merely the employees. And again, this is infor-
mation that is presumptively relevant to the Union’s obligations
to represent its employees and to police the contract.
With regard to the delay of information. There’s only one
delay allegation outstanding and that is the information con-
cerning the property in which each employee works.
I found above that this information was requested in the June
24th letter—let me be sure I have that date right. Yes, the June
24th letter, and it was not supplied to the Union until some time
in September of over two months.
I have found no justification for that delay in this record, so I
conclude that the Respondent has unlawfully delayed in provid-
ing the Union with the information concerning the location in
which the unit members were working.
In sum, I find that the conclusions of law are as follows: That
by failing to provide the Union the information that was re-
quested concerning bargaining unit members’ current ad-
dresses, current telephone numbers, current
49
rate of pay and weekly work schedules at the Sheraton Hotel,
the Hilton Hawaiian Village Beach Resort and Spa and the
Kahala Mandarin Oriental Hotel Respondent violated section
8(a)(5) and (1) of the Act, and that by delaying and providing
the information concerning the property at which the unit em-
ployees worked, Respondent also violated section 8(a)(5) and
(1) of the Act.
I find no violation concerning the request or the hire dates of
the employees, the seniority list of the employees or the wages
of the employees.
I shall in the due course serve upon the parties my written
order in this case. I want to thank all the parties for their cour-
tesy and corporation.
Hearing nothing more on this case, the hearing is now
closed. Thank you all very much.
MS. YOSHIKI: Thank you, Your Honor.
MR. ANDAYA: Thank you, Judge.
JUDGE KOCOL: Bye-bye.
MS. YOSHIKI: Bye.
MR. ANDAYA: Bye.