NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,523, EXECUTIVE CLEANING SERVICES, INC. et al. and LOCAL 68, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO et al., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

EXECUTIVE CLEANING SERVICES, INC. et al. and LOCAL 68, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO et al.

315 NLRB No. 33.Case Nos. 22-CA-16200 and -16518. September 30, 1994 Howard Edelman, Administrative Law Judge..

Before Gould, Devaney and Cohen.

Wayne Eastman, for General Counsel. Francis X. Dee (Carpenter, Bennett & Morrissey), for AT&T. Anna R. O’Connor, for AT&T. Albert G. Knoll, for Union.

Bargaining Subjects--Mandatory--Layoffs and Subcontracting.--An employer’s decision to lay off employees and subcontract their work to an outside company was a mandatory subject of bargaining, and the employer’s actions in doing so, were unlawful. The employer decided to replace employees in a bargaining unit with those of an independent contractor to perform the same work under similar conditions of employment, based solely upon the size of a wage increase proposed by a union. Therefore, such a condition required bargaining between the union and the employer. Section 8(a)(5).

Back reference: ¶3020.65.

Refusal to Bargain--Avoidance of Bargaining--Oral Modification Improper.--An employer’s refusal to honor a purported oral modification of a collective bargaining agreement with a union was lawful because evidence of an oral agreement may not be used to vary the terms of a contract. Moreover, the evidence presented concerning the oral provision was not sufficiently definite with respect to essential terms and conditions of employment as to be enforceable. Section 8(a)(5).

Back reference: ¶3085.195.

Joint Employers--Fact Finding--Contractual Relationship.--On the facts, two employers were found to be joint employers because one employer exercised extensive control over the other employer’s employees and a bargaining contract relationship that one employer had with a union implicated the other employer that exercised the control over all employees. Section 2(2).

Discrimination--Antiunion Motives--Union Wage Proposals.--By terminating a group of bargaining unit employees because their union proposed increases in rates of pay and changes in other terms of employment, an employer discriminated against them. The employer sought to subcontract out the unit work that was being performed by these employees in retaliation for the union’s bargaining proposals. Section 8(a)(3).

Back reference: ¶4010.409.

Interference--Reprisal for Union Activity--Decertifying and Evicting Union.--In an attempt to interfere with its employees’ right to freely select a bargaining representative, an employer circulated a decertification petition and evicted a union representative from an employee meeting. The employer was attempting to sever its contractual relationship with the union in order to subcontract its work at a lower wage rate. Section 8(a)(1).

Back reference: ¶3830.1105.

Assistance to Unions--Fact Finding--Contract Despite Rival Union.--On the facts, an employer rendered unlawful assistance to a union by executing a collective bargaining agreement with it while another union was actually representing bargaining unit employees. Section 8(a)(2).

From Text of Board’s Decision

On May 21, 1992, Administrative Law Judge Howard Edelman issued the attached decision. Respondent AT&T filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, [1] Respondent AT&T, the General Counsel and the Charging Party each filed answering briefs, and Respondent AT&T filed two reply briefs.

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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, [2] and conclusions [3] as modified and to adopt the recommended Order as modified and set forth in full below.

1. We agree with the judge’s conclusion that the decision to lay off the employees of Executive Cleaning Services (ECS) and subcontract the work to Thru State Maintenance was a mandatory subject of bargaining. There is no contention that this decision involved any capital investment or change in the scope or direction of the joint employers’ business. Rather, AT&T, a joint employer with ECS, decided to replace “employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment ...” based solely on the size of the wage increase proposed by the Union. Fibreboard Corp. v. NLRB, [50 LC ¶19,384] 379 U.S. 203, 215 (1964). [4] Accordingly, this decision was a mandatory subject of bargaining. Id.; see also First National Maintenance Corp. v. NLRB, [91 LC ¶12,805] 452 U.S. 666 (1981); Holmes & Narver, [1992-93 CCH NLRB ¶17,536] 309 NLRB 146, 147 (1992) (decision to lay off employees for economic reasons was mandatory subject of bargaining). [5] By failing and refusing to bargain over this decision, Respondents AT&T and ECS, as joint employers, violated Section 8(a)(5) and (1) of the Act. [6]

2. The General Counsel has excepted, inter alia, to the judge’s finding that AT&T and ECS did not unlawfully repudiate an oral agreement with Local 68 concerning the terms of a successor agreement to the parties’ 1986-1989 contract. We find no merit to this exception.

To the extent that the General Counsel contends that Local 68, AT&T, and ECS orally agreed that, as part of the 1986-1989 collective-bargaining agreement, the cleaning employees’ wages at One Tower Center would catch up with those paid at other AT&T buildings, the judge correctly found that evidence of an oral agreement may not be used to vary the terms of a written agreement. See NDK Corp., [1985-86 CCH NLRB ¶17,834] 278 NLRB 1035 (1986). In this regard, although there was a written catchup provision in Local 68’s agreement with the maintenance contractor at One Tower Center, no such provision appears in Local 68’s agreement with ECS.

We also find that the evidence presented concerning the catchup provision is not sufficiently definite with respect to essential terms and conditions of employment to constitute an enforceable successor agreement to the 1986-1989 collective-bargaining agreement. In this regard, the General Counsel has shown that AT&T official Stomski agreed in principle to “catch up” the One Tower Center wage rates in 1989 to those paid at other AT&T facilities, subject to Local 68’s agreement to roll back wages at that location in 1986 below the rates paid the other facilities, and that Local 68 subsequently agreed to a specific rollback figure that was agreeable to AT&T. In December 1988, Local 68 Business Agent Giblin wrote a letter to ECS noting that the existing agreement was expiring and stating “our desire to negotiate a renewal agreement with you.” [7] In February 1989, Local 68 mailed to ECS a proposal for a new contract which included substantial increases in wages and benefits. In his testimony, Giblin conceded that Local 68’s initial proposal for a successor agreement did not fully catch up the One Tower Center wage rates with those paid at the other AT&T buildings. Giblin explained this as a “business decision” to seek a more moderate wage increase in light of the substantial, unexpected increase in the health and welfare plan contribution also contained in the proposal: “We said even though the catch up exists, there’s no way that we can go from $1.05 an hour up to $2.50 an hour in our health and welfare plan and then tell him put these rates of pay up on top of that.”

It is well settled that a collective-bargaining agreement arises only after a meeting ot the minds on all material terms. Roman Iron Works, [1986-87 CCH NLRB ¶18,547] 282 NLRB 725, 726 (1987). It is clear from the above recitation of facts that the parties’ understanding in 1986 fell far short of a meeting of the minds on all material terms of a successor agreement. [8] Moreover, even with respect to wages, the evidence does not support a finding that the parties intended to reopen the contract only as to wages or to predetermine that term without regard to other contractual issues that might arise. Indeed, Local 68’s course of conduct in 1989 would seem to confirm that wages and the other terms which were not addressed or agreed on in 1986 were intended to constitute an integral part of bargaining for a successor agreement. [9] Accordingly, under all the circumstances, we find that the General Counsel has not established that an enforceable oral agreement on wages for a successor agreement existed, or that AT&T or ECS unlawfully repudiated such an agreement at One Tower Center in 1989.

¹	In a letter dated September 9, 1992, Local 68, International Union of Operating Engineers, AFL-CIO informed the Board that it joins in the exceptions filed by the General Counsel.
²	Respondent AT&T has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950, enfd. 188 f.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The judge made several errors in his decision: the correct date on which Local 734 obtained authorization cards for One Tower Center was April 5, 1989, not March 5 as stated by the judge; the judge mistakenly referred to a Local 174 rather than Party in Interest Local 734, Laborers’ International Union of North America, AFL-CIO, in several places in his decision; and the judge misspelled the name of Local 68 Business Agent Steven McGuire.
³	In adopting the judge’s finding that Respondents AT&T and Executive Cleaning Services are joint employers we rely additionally on Whitewood Oriental Maintenance, 292 NLRB 1159 (1989), enfd. sub nom. Texas World Service Co. v. NLRB, 928 F.2d 1426 (5th Cir. 1991). We agree with the judge that Executive Cleaning Services and AT&T, as joint employers, violated Sec. 8(a)(1) by soliciting employees to sign a petition to decertify the Union and by denying McGuire, an authorized union representative, access to the One Tower Center facility. In addition to the factors cited by the judge in support of these findings, we note that before circulating the decertification petition, Executive Cleaning Services advised AT&T that it intended to sever its relationship with Local 68 and that an internal AT&T memorandum indicates that AT&T was willing to renew ECS’s cleaning contract, on a nonunion basis, if this effort was successful. With regard to the expulsion of McGuire, we note that AT&T Supervisor Thompson confiscated Union Representative McGuire’s badge and demanded that he leave the building, at Executive Cleaning Services’ request. We find no merit to AT&T’s argument that the 8(a)(3) and (5) allegations should be dismissed because the Union assertedly did not give timely notice of its intent to modify the parties’ collective-bargaining agreement as contemplated by Sec. 8(d) Jet Line Products, 229 NLRB 322, 322-323 (1977) (8(d) requirements applicable only in the case of a strike or lockout). Likewise, AT&T’s claim that the 1986-1989 collective-bargaining agreement between Executive Cleaning Services and Local 68 was automatically renewed for 1 year pursuant to a contractual renewal provision in the absence of timely notice is without merit, as the Respondents never took the position that Local 68’s contract proposal was untimely or refused to bargain on that basis, and Local 68 continued its efforts to contact the Respondents for negotiations. See Hassett Maintenance Corp., 260 NLRB 1211 fn. 3 (1982).
⁴	Technically, ECS’s contract was with Tower Center Associates (TCA), a partnership which owned the One Tower Center building but was itself 49 percent owned by AT&T. For the reasons stated by the judge, we agree that TCA was AT&T’s agent for the purpose of selecting ECS as the cleaning contractor for One Tower Center in 1986 and for the purpose of not renewing ECS’s contract in 1989.
⁵	We disavow the judge’s reliance on Otis Elevator Co., 269 NLRB 891 (1984), as that decision was overruled by Dubuque Packing Co., [1991-92 CCH NLRB ¶16,687] 303 NLRB 386 (1991). Further, to the extent that Lapeer Foundry & Machine, [1987-88 CCH NLRB ¶19,558] 289 NLRB 952 (1988), relies on Otis, we also disavow the judge’s reliance on Lapeer. See Holmes & Narver, above, 309 NLRB at 147 fn.3. In light of the above, we do not rely on the judge’s discussion of the circumstances in which a decision to lay off employees or to subcontract work is a mandatory subject of bargaining. Member Cohen regards the decision in this case as falling within the ambit of category 3 of First National Maintenance.
⁶	It is undisputed that neither AT&T nor ECS notified Local 68 of the decision to terminate ECS’s cleaning contract at One Tower Center and subcontract the work to another until after TCA’s February 16, 1989 letter announcing that the decision had already been reached, and no party contends that any negotiations occurred with respect to the subcontracting decision or the subsequent layoffs. Likewise, neither AT&T nor ECS ever responded to Local 68’s initial proposal for a successor to the 1986-1989 agreement with ECS with any counterproposals. AT&T merely announced that the ECS cleaning contract would not be renewed. ECS’s only response was to tell Local 68 in early February that its proposed rates were too high. On February 20, ECS advised TCA that it intended to “terminate” its relationship with Local 68 and proposed a renewal of its cleaning contract with TCA on a “non-Union” basis. When Local 68 subsequently unilaterally reduced its demands, ECS responded that it was “too late.”
⁷	Although the letter, which was placed in evidence by the Respondent, is addressed to ECS with copies to the Federal and state mediation services, ECS’s president, Mannix, testified that he never reveived the letter.
⁸	See, e.g., Interprint Co., [1984-85 CCH NLRB ¶17,101] 273 NLRB 1863 (1985) (no meeting of the minds because, inter alia, the agreement lacked commencement and termination dates).
⁹	We also note that Local 68’s contract proposals which included wages at variance with those that would have been required under the alleged catchup agreement is inconsistent with the General Counsel’s claim that a meeting of the minds existed. Cf. Bi-County Beverage Distributors, [1988-89 CCH NLRB ¶15,208] 291 NLRB 466, 468-469 (1988) (meeting of the minds found where parties, inter alia, acted in a manner consistent with the existence of an agreement).

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,523, EXECUTIVE CLEANING SERVICES, INC. et al. and LOCAL 68, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO et al., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

EXECUTIVE CLEANING SERVICES, INC. et al. and LOCAL 68, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO et al.

315 NLRB No. 33.Case Nos. 22-CA-16200 and -16518. September 30, 1994 Howard Edelman, Administrative Law Judge..

Before Gould, Devaney and Cohen.

Wayne Eastman, for General Counsel. Francis X. Dee (Carpenter, Bennett & Morrissey), for AT&T. Anna R. O’Connor, for AT&T. Albert G. Knoll, for Union.

Back reference: ¶3020.65.

Back reference: ¶3085.195.

Back reference: ¶4010.409.

Back reference: ¶3830.1105.

From Text of Board’s Decision

...

¹	In a letter dated September 9, 1992, Local 68, International Union of Operating Engineers, AFL-CIO informed the Board that it joins in the exceptions filed by the General Counsel.
²	Respondent AT&T has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950, enfd. 188 f.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The judge made several errors in his decision: the correct date on which Local 734 obtained authorization cards for One Tower Center was April 5, 1989, not March 5 as stated by the judge; the judge mistakenly referred to a Local 174 rather than Party in Interest Local 734, Laborers’ International Union of North America, AFL-CIO, in several places in his decision; and the judge misspelled the name of Local 68 Business Agent Steven McGuire.
³	In adopting the judge’s finding that Respondents AT&T and Executive Cleaning Services are joint employers we rely additionally on Whitewood Oriental Maintenance, 292 NLRB 1159 (1989), enfd. sub nom. Texas World Service Co. v. NLRB, 928 F.2d 1426 (5th Cir. 1991). We agree with the judge that Executive Cleaning Services and AT&T, as joint employers, violated Sec. 8(a)(1) by soliciting employees to sign a petition to decertify the Union and by denying McGuire, an authorized union representative, access to the One Tower Center facility. In addition to the factors cited by the judge in support of these findings, we note that before circulating the decertification petition, Executive Cleaning Services advised AT&T that it intended to sever its relationship with Local 68 and that an internal AT&T memorandum indicates that AT&T was willing to renew ECS’s cleaning contract, on a nonunion basis, if this effort was successful. With regard to the expulsion of McGuire, we note that AT&T Supervisor Thompson confiscated Union Representative McGuire’s badge and demanded that he leave the building, at Executive Cleaning Services’ request. We find no merit to AT&T’s argument that the 8(a)(3) and (5) allegations should be dismissed because the Union assertedly did not give timely notice of its intent to modify the parties’ collective-bargaining agreement as contemplated by Sec. 8(d) Jet Line Products, 229 NLRB 322, 322-323 (1977) (8(d) requirements applicable only in the case of a strike or lockout). Likewise, AT&T’s claim that the 1986-1989 collective-bargaining agreement between Executive Cleaning Services and Local 68 was automatically renewed for 1 year pursuant to a contractual renewal provision in the absence of timely notice is without merit, as the Respondents never took the position that Local 68’s contract proposal was untimely or refused to bargain on that basis, and Local 68 continued its efforts to contact the Respondents for negotiations. See Hassett Maintenance Corp., 260 NLRB 1211 fn. 3 (1982).
⁴	Technically, ECS’s contract was with Tower Center Associates (TCA), a partnership which owned the One Tower Center building but was itself 49 percent owned by AT&T. For the reasons stated by the judge, we agree that TCA was AT&T’s agent for the purpose of selecting ECS as the cleaning contractor for One Tower Center in 1986 and for the purpose of not renewing ECS’s contract in 1989.
⁵	We disavow the judge’s reliance on Otis Elevator Co., 269 NLRB 891 (1984), as that decision was overruled by Dubuque Packing Co., [1991-92 CCH NLRB ¶16,687] 303 NLRB 386 (1991). Further, to the extent that Lapeer Foundry & Machine, [1987-88 CCH NLRB ¶19,558] 289 NLRB 952 (1988), relies on Otis, we also disavow the judge’s reliance on Lapeer. See Holmes & Narver, above, 309 NLRB at 147 fn.3. In light of the above, we do not rely on the judge’s discussion of the circumstances in which a decision to lay off employees or to subcontract work is a mandatory subject of bargaining. Member Cohen regards the decision in this case as falling within the ambit of category 3 of First National Maintenance.
⁶	It is undisputed that neither AT&T nor ECS notified Local 68 of the decision to terminate ECS’s cleaning contract at One Tower Center and subcontract the work to another until after TCA’s February 16, 1989 letter announcing that the decision had already been reached, and no party contends that any negotiations occurred with respect to the subcontracting decision or the subsequent layoffs. Likewise, neither AT&T nor ECS ever responded to Local 68’s initial proposal for a successor to the 1986-1989 agreement with ECS with any counterproposals. AT&T merely announced that the ECS cleaning contract would not be renewed. ECS’s only response was to tell Local 68 in early February that its proposed rates were too high. On February 20, ECS advised TCA that it intended to “terminate” its relationship with Local 68 and proposed a renewal of its cleaning contract with TCA on a “non-Union” basis. When Local 68 subsequently unilaterally reduced its demands, ECS responded that it was “too late.”
⁷	Although the letter, which was placed in evidence by the Respondent, is addressed to ECS with copies to the Federal and state mediation services, ECS’s president, Mannix, testified that he never reveived the letter.
⁸	See, e.g., Interprint Co., [1984-85 CCH NLRB ¶17,101] 273 NLRB 1863 (1985) (no meeting of the minds because, inter alia, the agreement lacked commencement and termination dates).
⁹	We also note that Local 68’s contract proposals which included wages at variance with those that would have been required under the alleged catchup agreement is inconsistent with the General Counsel’s claim that a meeting of the minds existed. Cf. Bi-County Beverage Distributors, [1988-89 CCH NLRB ¶15,208] 291 NLRB 466, 468-469 (1988) (meeting of the minds found where parties, inter alia, acted in a manner consistent with the existence of an agreement).

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,523, EXECUTIVE CLEANING SERVICES, INC. et al. and LOCAL 68, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO et al., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

From Text of Board’s Decision

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Footnotes

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,523, EXECUTIVE CLEANING SERVICES, INC. et al. and LOCAL 68, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO et al., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

From Text of Board’s Decision

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Footnotes