Aramark Educational Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 13, 2008

01-CA-043486 (N.L.R.B. May. 13, 2008)

JD–24-08
Boston, MA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ARAMARK EDUCATIONAL SERVICES, INC.
and Case 1-CA-43486
UNITE HERE LOCAL 26
ARAMARK d/b/a HARRY M. STEVENS, INC.
and Case 1-CA-43657
UNITE HERE LOCAL 26
ARAMARK SPORTS, INC.
and Case 1-CA-43658
UNITE HERE LOCAL 26
Robert DeBonis, Esq.,
Of Boston Massachusetts
For the General Counsel
Michael T. Anderson, Esq.,
Of Boston, Massachusetts
For the Charging Party Union
Michael D. Keffer, Esq.,
Of Philadelphia, Pennsylvania
For the Respondent Employer
DECISION
Statement of the Case
WALLACE H. NATIONS, Administrative Law Judge. This case was tried in Boston,
Massachusetts on October 23 and 24, 2007. The charge in Case 1-CA-43486 was filed
September 27, 20061 and an amended charge was filed on January 19, 2007 by UNITE HERE
Local 26 (herein Union) and a Complaint based thereon was issued on December 21, 2006
against ARAMARK Campus, Inc., herein called by its correct name, ARAMARK Educational

1 All dates are 2006 unless otherwise indicated.
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Services, Inc. (herein ARAMARK Educational or MIT). On December 8, 2006, the Union filed a
charge and then on January 19, 2007 filed an amended charge in Case 1-CA-43657 against
ARAMARK d/b/a Harry M. Stevens, Inc. (herein ARAMARK Stevens or Hynes). The Union
filed a charge in Case 1-43658 on January 19, 2007 against ARAMARK Sports, Inc. (herein
ARAMARK Sports or Fenway). Region 1 issued an Order Consolidating Cases, Amended
Consolidated Complaint and Notice of Hearing (herein Complaint) on March 7, 2007. The
Complaint alleges that ARAMARK Educational, ARAMARK Stevens and ARAMARK Sports or
collectively Respondents or ARAMARK, have engaged in conduct in violation of Section 8(a)(1)
and (5) of the National Labor Relations Act (herein Act). Respondents filed a timely Answer to
the Complaint wherein, inter alia, they admit the jurisdictional allegations of the Complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Union and Respondents,2 I make the
following:
Findings of Fact
I. Jurisdiction
ARAMARK Educational, a corporation, provides food and beverage service at its place
of business at the MIT Faculty Club in Cambridge, Massachusetts. During the calendar year
ending December 31, 2006 purchased and received at its MIT facility goods valued in excess of
$50,000 directly from points outside of Massachusetts and provided food and beverage services
for the Massachusetts Institute of Technology valued in excess of $50,000, an enterprise within
the Commonwealth of Massachusetts.
At all material times, ARAMARK Stevens, a corporation, has provided food and
beverage service at its Fenway Park facility. During the calendar year ending December 31,
2006, ARAMARK Stevens purchased and received at its Fenway Park facility goods valued in
excess of $50,000 directly from points outside of Massachusetts and provided food and
beverage services valued in excess of $50,000 to the Boston Red Sox, an enterprise located
within the Commonwealth of Massachusetts.
At all material times, ARAMARK Sports, a corporation, has provided food and beverage
services at its facility in the Hynes Convention Center. During the calendar year ending
December 31, 2006, ARAMARK Sports purchased and received at its Hynes facility goods
valued in excess of $50,000 directly from points outside of Massachusetts and provided food
and beverage services valued in excess of $50,000 to the Hynes Convention center, an
enterprise located within the Commonwealth of Massachusetts.
The Respondents have admitted and I find that Respondents are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.

2 Respondents’ brief contains certain attachments denoted by capital letters. Some of these
exhibits were not introduced at the hearing and are clearly hearsay. General Counsel has filed a
motion to strike the attachments marked C, D, E, I, K, and L. The motion is granted and these
attachments are not part of the record.
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II. Alleged Unfair Labor Practices
A. Complaint Allegations
The Complaint alleges that at all material times the following individuals have held the
positions set forth opposite their respective names and have been supervisors of Respondents
within the meaning of Section 2(11) of the Act and agents of Respondents within the meaning of
Section 2(13) of the Act:
Meghan King Associate General Manager, MIT Faculty and Catering, ARAMARK
Educational
Richard K. Ellis V. P. Labor Relations, ARAMARK Stevens
Rob Gould Labor Relations, ARAMARK Stevens
Julie Jordan General Manager, ARAMARK Stevens
Isaac Jackson Director of Operations, ARAMARK Sports
Leigh C. Thumith General Manager, ARAMARK Sports
The following employees of ARAMARK Educational, herein called the MIT unit,
constitute a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All full-time and regular part-time employees of the Faculty Club Dining Room and Bar,
and all full-time and regular part-time employees of the Faculty Club Kitchen who work
twenty (20) hours per week or more, including those in the classifications listed in Article
19-Wages, but excluding all other employees including maintenance employees,
hostesses, MIT students employed in any capacity, casual temporary and seasonal
employees, managerial and confidential personnel, office clericals, guards, working
supervisors as defined in the Act.
Since about 1996, and at all material times, the Union has been the exclusive collective
bargaining representative of the Unit, and since that date, the Union has been recognized as
such by Respondent. This recognition has been embodied in successive collective bargaining
agreements, the most recent of which is effective from July 1, 2002 to June 30, 2007(herein the
2002-2007 MIT contract.)
The following employees of ARAMARK Stevens, herein called the Fenway Park Unit,
constitute a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All non supervisory full-time and regular part-time food and beverage employees
including stand leaders, cooks, stand workers, warehouse personnel, beer sellers, suite
attendants, suite runners, bartenders, servers, bussers, runners, utility, catering personnel and
vendors who have actually worked more than ten events after April 12, 1982, who are employed
at Fenway Park, Boston, Massachusetts. Excluded are managers, assistant managers, office
and clerical employees, professional employees, confidential employees, supervisory
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employees and vendors who have not actually worked more than ten events after April 12,
1982.
Since about 1975, and at all material times, the Union has been the exclusive collective
bargaining representative of the Fenway Park Unit, and since that date, the Union has been
recognized as such by ARAMARK Stevens. This recognition has been embodied in successive
collective-bargaining agreements, the most recent of which is effective from January 1, 2004
through December 31, 2008 (herein called the 2004-2008 Fenway Park contract).
The following employees of ARAMARK Sports, herein called the Hynes Unit, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act:
All employees as defined in the collective bargaining agreement effective between the
Union and ARAMARK Sports for the period June 1, 2002 to May 31, 2007 (herein called the
2002-2007 Hynes contract).
At all times since 1988, based on Section 9(a) of the Act, the union has been the
exclusive collective bargaining representative of the Hynes Unit and recognized as such by
ARAMARK Sports.
In September and October, 2006, the Union sent the Respondents a letter wherein it
sought certain information deemed necessary for and relevant to, the Union’s performance of its
duties as the exclusive collective bargaining representative of the involved Units. The
Respondents have, since receipt of those letters, failed and refused to furnish the Union with the
information sought.
About September 1, 2006, the Respondents changed their policy regarding verification
of Social Security numbers for employees who have discrepancies in their Social Security
numbers by disciplining employees who failed to correct such discrepancies. The policy in
question is the response that Respondents make to the so called “no match” lists which the
Social Security Administration periodically sends to employers, noting the names of employees
whose names do not match up with the social security number submitted for them. The change
in policy relates to the hours, wages and other terms and conditions of employment of the
employees in the involved Units and is a mandatory subject of bargaining. The Respondents
implemented the policy change without prior notice to the Union and without affording the Union
an opportunity to bargain with Respondents with respect to the change in policy and its effects.
The complaint alleges that the Respondents’ conduct noted above violates Section 8(a)(1) and
(5) of the Act.
The information sought by the Union related the alleged change in policy. In each
instance the Union sought the following information:
1. A copy of any and all documents reflecting communications, whether written, oral or
electronic, between the Social Security Administration (“SSA”) and ARAMARK
between January 1, 2002 and the present, regarding the social security numbers of
employees of ARAMARK.
2. A copy of any and all documents reflecting communications, whether written, oral or
electronic, between the Department of Homeland Security (“DHS”) and ARAMARK
between January 1, 2002 and the present, regarding the social security numbers of
employees of ARAMARK.
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3. A copy of any and all documents that ARAMARK sent to the SSA or DHS between
January 1, 2002 and the present.
4. A copy of any and all documents that ARAMARK sent to the SSA or DHS between
January 1, 2002 and the present in order to verify employees’ social security
numbers.
5. A copy of any and all documents created or received by ARAMARK between
January 1, 2002 and the present, regarding internal company policies or procedures
for responding to social security “no match” letters.
6. A copy of any and all documents created or received by ARAMARK between
January 1, 2002 and the present, regarding internal company policies or procedures
for verifying employees’ social security numbers with SSA.
7. A copy of any and all documents reflecting ARAMARK’s oral communications with
the SSA, including the SSA’s Employee Verification Service, between January 1,
2002 and the present, regarding verification of social security numbers of employees
of ARAMARK.
8. A copy of any and all documents asking, or reflecting an oral request that,
ARAMARK report back to the SSA regarding social security “no matches” between
January 1, 2002 and the present.
9. A copy of any and all registration forms submitted by ARAMARK to the SSA between
January 1, 2002 and the present to register for the SSA’s Employee Verification
System.
There are two issues framed by the Complaint and facts of this case. These issues are:
1. Did Respondents violate Section 8(a)(5) and (1) of the Act by unilaterally changing
their no-match letter policy and practice by requiring employees, as a condition of
employment, to resolve discrepancies in the SSA information within 90 days?
2. Did Respondents violate Section 8(a)(5) and (1) of the Act by refusing to provide the
Union with Respondents’ communications with the SSA and DHS regarding no-
match matters, and Respondents’ internal documents on current and previous no-
match policies?
B. The Relevant Facts Relating to the Issues Presented
1. Background Concerning the No-Match Issue
SSA maintains earnings information on workers for the purpose of determining eligibility
for Social Security benefits. Employers submit employee wages to SSA on Forms W-2 Wage
and Tax Statements. Sometimes, SSA is unable to match a worker’s name and Social Security
Number (SSN) from the Form W-2 with its own records. Since 1994, SSA has attempted to
correct mismatched records by sending no-match letters to employers requesting corrected
information.
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The language in SSA’s letters downplays the immigration implications of a mismatched
SSN. No-match letters sent in 2006 emphasized that receipt of the letter does not imply that the
employer or employee intentionally gave the government wrong information about the
employee’s name or SSN. The language also cautions that the letter makes no statement about
an employee’s immigration status. The letter goes on to warn employers that they should not
use the letter to take any adverse action against an employee, such as laying off, suspending,
firing, or discriminating against that individual, just because his or her SSN appears on the list.
The letter states that by doing so, the employer could be violating State or Federal law.
On June 14, DHS began the rulemaking process and proposed a new rule that would
add receipt of a no-match letter to a list of things that could lead to a finding that an employer
had constructive knowledge of an employee’s unauthorized immigration status. Under the new
rule, DHS proposed to create “safe-harbor” procedures that the employer could follow in
response to a no-match letter to be certain that DHS would not find that the employer had
constructive knowledge that the employee referred to in the letter was not authorized to work in
the United States. The safe harbor procedure called for the employer to check its records for the
source of the mismatch within 30 days. If the discrepancy was not due to error in the employer’s
records, then the employer had to request that the employee confirm his or her information, and
advise the employee to resolve the discrepancy with the SSA within 90 days of the date the
employer received the no-match letter.
On August 15, 2007, DHS concluded its year long rulemaking process and issued the
new rule to be effective on September 14, 2007. However, the U.S. District Court for the
Northern District of California blocked the rule by issuing a preliminary injunction. The Court’s
ruling is under appeal and the rule has never gone into effect.
However, there are laws already in effect which bear on the issues raised by the no-
match letters. In 2006, ARAMARK received no-match letters for its various corporate entities.
The initial letters provided partial lists of SSNs only and no mismatched names. Respondent
requested and received from SSA comprehensive lists of mismatched names and numbers.
Over 4,400 of its employees appeared on the various lists it received for its corporate entities.
The Respondents took the receipt of these no-match lists seriously. Several federal statutes and
regulations require Respondent to ensure that its employees have valid SSNs. The Company
has cited several of them. For example the IRS is authorized to fine a company $50 for each
incorrect SSN that it allows remain incorrect. The Immigration Reform and Control Act of 1986
(IRCA) makes it unlawful for a company to continue to employ an unauthorized alien when it
learns that that alien is unauthorized. The Supreme Court in Hoffman Plastic Compounds, Inc.v.
NLRB, 535 U.S. 137 (2002) interpreted the provisions of the act cited above thusly: “[I]f an
employer unknowingly hires an unauthorized alien, or if the alien becomes unauthorized while
employed, the employer is compelled to discharge the worker upon discovery of the worker’s
undocumented status. Employers who violate IRCA are punishable by civil fines and may be
subject to criminal prosecution. (citations omitted). Federal Courts have held that this Act
creates a constructive knowledge standard for employers, according to which “ a deliberate
failure to investigate suspicious circumstances imputes knowledge.” New El Ray Sausage Co.
v. U.S. Immigration & Naturalization Serv., 925 F.2d 1153 (9th Cir. 1991). I believe these laws
must be taken into consideration in this case.
2. Respondents’ No-Match Policy and Practice Before September 2006.
Two exhibits in the record set forth Respondents’ no-match policy as they existed before
2006, Respondents’ Ex. 7 and GC Ex. 22. R-7 contains a cover memorandum from
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Respondents’ Payroll Department dated December 15, 2000. The exhibit also contains two
documents that both have the title “Social Security Number (SSN) Verification Process
Checklist.” One is undated and the other is dated November 21, 2000. An additional undated
document that is referred to in the memorandum and is titled “Notice to All Applicants and
Employees,” completes the exhibit. The memorandum, checklists, and notice, taken as a whole,
form a confusing mosaic as to what the no-match policy was. It is not clear whether employees
who failed to correct discrepancies in their SSA information “may” or “must” be terminated. The
memorandum states, “If an employee fails to produce an original Social Security Card within the
time allotted, you must terminate his/her employment. However, the checklists state, “If the
employee fails to bring in proper documentation within 3 business days or a valid card within 60
days, if required, then you may terminate the employee for failure to have a valid Social Security
Number.” The notice states, “[A]ll existing employees that have been identified to ARAMARK by
the Social Security Administration as having an error in their Social Security account may also
be required to also produce an original card. NOTE: Employment may not continue if an
employee fails to produce an original Social Security Card within the time allotted.”
GC-22 is titled “Social Security Number (SSN) Verification Process Checklist” and is
dated December 2002. According to this checklist, existing employees who have a SSN
discrepancy are to be informed of the discrepancy. They are then given 3 business days to go
to the SSA, correct the discrepancy, and return to the Company with verification that the
employee has taken corrective action. The checklist continues, “If the employee fails to bring
proper documentation within 3 business days or a valid card within 90 days, then you may
terminate the employee for failure to comply with Company policy.”
Regardless of the ambiguously written policy that was in place, the record evidence
establishes that Respondent’s practice was not to enforce the policy at any of the three
locations at issue in this case: Massachusetts Institute of Technology (MIT); Hynes Convention
Center (Hynes); and Fenway Park (Fenway). Respondent stipulated that prior to 2006, the local
managers at these three locations did not enforce Respondent’s no-match policy at their
locations. Moreover, Respondents’ Vice-President of Labor Relations, Richard Ellis, conceded
in his testimony that Respondents’ written policy was “probably not” enforced in the period
between 2000 and 2006. Ellis explained: “I think part of the problem is that - promulgate these
rules, then we have changes in management ongoing, changes in HR, changes in labor
relations, there’s not the consistency that probably should take place.”
Respondents practiced a lais-sez faire policy at the three locations before September
2006. It simply notified the employees that they were the subject of the no-match letters and left
it up to the employee to decide how to deal with the problem. Employees were allowed to
continue working regardless of whether they ever resolved the discrepancies with SSA. Brian
Lang, the Union’s Vice-President and Staff Director, testified that no employees were disciplined
as a result of no-match letter related problems.
Lang gave an example of Respondent Educational’s practice in 2004. Respondent
Educational informed the Union, by letter, that three bargaining unit employees at MIT were the
subject of a no-match letter. A few days later, the Union responded, by letter, setting forth the
Union’s position on the matter. The Union took the position that the Company should take no
action against the employees, and that the Company had fulfilled its obligation by notifying the
employees of the discrepancies. Lang testified that later that month, he met with Hilary Noel,
Respondent Educational’s General Manager at MIT at the time. At the meeting, Noel told Lang
that before she agreed to anything, she would have to check with someone in a higher
management position. Within a week, she informed Lang that the Company agreed with the
Union and would not take any adverse action toward the employees who had showed up on the
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no-match letter.
Respondent’s records corroborate Lang’s testimony. MIT employee Carmen Plasencia
appeared on the 2004 no-match letter. Apparently she did not correct the discrepancy because
she appears again on the 2006 no-match letter. Nevertheless, Plasencia continued to work at
both MIT and Hynes until Respondent changed its policy and suspended her on October 5,
2006.
3. Respondents Change Their No-Match Policy and Practice
In July 2005, Respondents again revised their Social Security Number (SSN) Verification
Process Checklist. The revised checklist provides that employees who are the subject of a no-
match letter have 14 days to begin corrective action and 90 days to fully correct the problem
with SSA. If the employee cannot provide written verification of reapplication or corrective action
or an original Social Security card within the time allowed, then the employer “must terminate
the employee for failure to comply with ARAMARK policy.” There is no evidence that
Respondents ever informed the Union of the revised policy or that the Union was aware of the
revisions until September 2006.
In May 2006, Respondents received no-match letters from SSA identifying 4400
employees nationally whose SSA information had discrepancies. Between May and August,
Respondents went through a process of obtaining the names as well as the SSN’s of the no-
match employees from SSA.
The first opportunity for Respondents to apply their new policy came in September, after
they had obtained the names from SSA. During August, Respondents’ managers had held a
series of internal discussions corporate wide on the new no-match policy. By about September
7, they developed a “protocol” that set forth a procedure for labor relations employees to follow
at Respondents’ unionized facilities. The protocol uses the same timetable as the July 2005
checklist, i.e., 14 days to begin corrective action and 90 days to complete the corrective action.
It also calls for employees who have not begun the corrective action in 14 days to be suspended
and for employees who have not completed the corrective action in 90 days to be terminated.
In early September, even before the finalization of the protocol, Respondents began
implementing their new policy at, inter alia, MIT, Hynes and Fenway.
4. Respondent Educational Implements the Changes at MIT
Respondent Educational and the Union are parties to a collective bargaining agreement
covering about 20 food service employees employed by the Respondent at MIT. The agreement
expired on June 30, 2007. The parties are currently negotiating a successor agreement. Among
other things, the agreement contained the following provisions:
Article 7 – Management
The Union agrees that, subject to the terms of this Agreement, the management of the
Employer’s activities and the direction of the working forces, including but not limited to the
establishment of reasonable working rules and reasonable work schedules, the right to hire,
assign and transfer employees, to layoff employees because of lack of work or funds, and to
discipline or discharge employees for just cause, is vested exclusively in the Employer when not
in conflict with other provisions of the Agreement.
Article 36 – Immigration
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36.1 In the event that an employee who has completed his/her probationary period has
a problem with his/her right to work in the United States, or upon notification by the
INS that an immigration audit or an investigation is being initiated, or when the
Employer receives No Match letter(s) from Social Security, the Employer shall
immediately notify the Union in writing, and upon the Union’s request, agrees to
meet with the Union to discuss the nature of the problem or investigation to see if a
resolution can be reached. Whenever possible, this meeting shall take place
before any action by the Employer is taken.
36.2 The Employer will furnish to any employee terminated because he/she is not
authorized to work in the United States of America a statement stating the
employee’s rights and obligations under this Section of the Agreement.
36.3 Upon request, employees shall be released for up to five (5) unpaid working days
per year during the term of the Collective Bargaining Agreement in order to attend
to INS proceedings and any related matters for the employee and the employee’s
immediate family (parent, spouse, and/or dependent child). The Employer may
request verification of such leave.
36.4 No employee employed continuously since November 16, 1986 (or before as
amended by Congress) shall be required to document immigration status.
36.5 In the event that an employee is not authorized to work in the United States
following his/her probationary period or introductory period, and his/her
employment is terminated for this reason, the Employer agrees to immediately
reinstate the employee to his/her former position, without loss of prior seniority
(i.e., seniority, vacation or other benefits do not continue to accrue during the
period of absence) upon the employee receiving proper work authorization within
twelve (12) months from the date of termination.
36.6 If the employee needs additional time (beyond twelve (12) months, the Employer
will rehire the employee in the next available opening in the employee’s former
classification, as a new hire without seniority, upon the employee providing proper
work authorization within a maximum of twelve additional months. The parties
agree such employees would be subject to a probationary period in this event.
Though since about 2000, the Employer had had in place a procedure for dealing with
no-match letters noted above, it began in 2006 to enforce a uniform policy in this regard
company wide. This enforcement was in contrast to the hit and miss enforcement that had
occurred prior to 2006. The policy had been enforced in some locations around the country, but
was not enforced at the three locations involved in this proceeding. In September, the Union
received its first indication that Respondent Educational was taking a different approach to SSA
no-match letters. By letter to the Union dated September 5, Meghan King, Respondent
Educational’s Associate General Manager at MIT, identified approximately 15 employees at MIT
who had been the subject of the 2006 no-match letter. King’s letter to the Union stated:
“Per our discussion we will need to have the individuals identified confirm their Social
Security information that we received from them upon their hire. If we find that a discrepancy still
exists, they will have three (3) business days to go to the local Social Security office to rectify
the discrepancy. Upon visiting the SS office, they will need to provide ARAMARK with proof the
discrepancy has been resolved. If they are issued a new Social Security card they will have
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ninety (90) days to bring their new card to ARAMARK.”
Lang responded by letter dated September 12. He reiterated the position the Union had
taken in 2004, i.e., that the Company should take no action against the employees, and that the
Company had fulfilled its obligation by notifying the employees of the discrepancies. The letter
also warned Respondent Educational that:
“[N]or should you demand that employees correct the error in their names or social
security numbers with the SSA. If you discipline an employee for failing to do so, you will violate
the collective-bargaining agreement’s “just cause” prohibition. . . . In sum, we want to schedule
a meeting on this matter. You should not demand that employees correct their records with the
Social Security Administration.”
Lang also spoke by telephone with King on or about September 12. He told her not to
take any adverse action. King responded that she was being told by the corporate office that
she had to follow the policy set forth in her September 5 letter.
On or about September 21, King sent Lang copies of the letters that were being sent to
three bargaining unit employees at MIT. The letters stated that the employees were being given
14 days to go to SSA to start the process of correcting the no-match, and that they would be
given 90 days to complete the correction process. Lang responded by letter dated September
21. He requested various items of information. He also objected to Respondent Educational’s
implementation of a new No Match policy without bargaining with the Union.
5. Respondent Stevens Implements the Changes at Hynes
Respondent Stevens and the Union are parties to a collective bargaining agreement
covering about 500 food service employees employed by the Respondent at the Hynes
Convention Center and the Boston Convention and Exhibition Center (Hynes). The agreement
was effective by its terms from June 1, 2002 to May 31, 2007. It has been extended while the
parties are negotiating a successor agreement. The agreement contains a similar immigration
provision and an identical management rights provision as found in the MIT agreement.
On about September 13, Isaac Jackson, the Director of Operations for Respondent
Stevens at Hynes, spoke to Lang by telephone. He explained that some bargaining unit
employees had appeared on a no-match letter. He asked Lang what he was supposed to do.
Lang said that Respondent Steven’s only obligation was to notify the employees and let them
know that they could go to SSA if they wanted to. Lang said he would send him a letter. By letter
dated September 13, Lang set forth the Union’s position. He reiterated the position that the
Union had taken in 2004 and in its letter to Meghan King at MIT the previous day, i.e., that the
Company should take no action against the employees, that the Company had fulfilled its
obligation by notifying the employees of the discrepancies, that the Company should not
discipline employees for failing to correct their SSA information, and that the Union wanted to
meet on the matter.
Lang spoke by telephone on September 29 with Jackson’s boss, Leigh Thumith. She
was the General Manager at Hynes at the time. She told him that Rob Gould, Labor Relations
Director for Respondent Stevens, would be calling him to discuss the no-match issue. Later on
September 29, Lang sent a letter to Thumith. Lang stated that he had still not heard from Gould.
He also objected to Respondent Stevens’ implementation of the new no-match policy without
bargaining with the Union. He also requested items of information. Thumith responded with an
undated letter that the Union received soon after September 29. Thumith refused to bargain
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about the no match issue stating:
“Please understand, however, that our compliance with I-9 verification procedures is not
subject to negotiation with the Union, but rather is dictated by federal law.”
During the week between September 29 and October 7, Lang spoke to Gould by
telephone. They spoke about the no-match situation with respect to Hynes and Fenway. Gould
explained that the new no-match policy was Company wide. Lang told Gould that the new policy
was a change and that he needed information about the change. Gould went through the
protocol and Lang reiterated the Union’s position. Gould took the position that it was perfectly
legitimate for the Company to implement the new no match policy despite the Union’s
opposition. The conversation ended with Gould and Lang agreeing to disagree.
6. Respondent Sports Implements the Changes at Fenway.
Respondent Sports and the Union are parties to a collective bargaining agreement
covering about 2000 food service employees employed by the Respondent at Fenway Park.
The basic agreement has been in effect since 1998 and the most recent addendum agreement
is effective by its terms from January 1, 2004 to December 31, 2008. The agreement contains
no immigration provision and has the following management rights clause:
Article 34 – Management Rights
A. The Company retains the exclusive right to plan, determine, direct and control the
nature and extent of all its kitchen, dining room, bar and allied operations, and/or
maintenance requirements, and to install or introduce any new or improved
production methods or facilities and to maintain, efficient operations. The Company
retains its inherent right to direct and control its working force personnel, to
determine the number of employees required, and to designate the type of position,
assignments and reassignments which it deems any employee is qualified to fill.
B. The Company shall have the right to make such reasonable rules and regulations as
it may deem necessary and proper for the conduct of its business, and the Company
may, after negotiations with the International Union, change or make other rules or
regulations; provided, however, that such rules and regulations shall not be
inconsistent with or be in modification of this Agreement.
In Lang’s telephone conversation with Rob Gould described above, Lang learned that
Respondent Sports was implementing its new no match policy at Fenway. On October 7, after
speaking with Gould, Lang sent a letter to Julie Jordan, Respondent Sports’ General Manager
at Fenway Park. The letter was a request for information and a statement of the Union’s
opposition to the new no match policy without first bargaining with the Union. The letter was
identical to those sent to the MIT and Hynes.
Genevieve McFarland, Respondent Sports’ Human Resources Director at Fenway in
2006, testified about the seasonal nature of employment at Fenway. The employees are laid off
during the off season (October through March) and are reinstated according to seniority in April.
She testified that in October, she met with the two bargaining unit employees who were the
subjects of the 2006 no match letter. She also testified that she told them that if they wanted to
return in April 2007, they would have to provide documentation that they had valid SSNs. She
also testified that typically, employees returning at the start of a season who had worked the
previous season were not considered new hires and did not have to fill out I-9 forms.
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7. Meetings with the International Union
Respondents’ Vice-President of Labor Relations, Richard Ellis, testified that he had
multiple conversations with two officials from the UNITE HERE International Union, Kurt
Edelman and Jim Dupont. UNITE HERE’s International constitution authorizes representatives
of the International Union to bargain and reach agreements on behalf of the local unions. Any
agreement Ellis and the International Union might have reached would have been binding on
the local Union in this case. The conversations took place beginning about late September
2006 and early January 2007. Ellis testified that he and Dupont agreed that the Respondents
would freeze the no-match procedure until they could meet and negotiate a resolution to the
dispute. On or about January 8, 2007, Ellis and Dupont had a face to face meeting. Ellis
described what happened:
“[W]e met for about two hours, exchanged positions, talked about clearly their position
was we didn’t have to do it, clearly ours was we did. We tried to work out some language. I gave
him a copy of documents that we would be willing to agree to. He took them and called me back
probably around January 25th, said that there would be no resolution to the matter and I said
okay, then we would continue the process the way it started.”
Ellis testified that Respondents then went back to implementation of their new no match
policy as they had been doing earlier, without objection from the International Union.
8. Respondents Suspend Employees
Respondents’ records indicate that in about October and November, several employees
were indefinitely suspended for violating the new no match policy. At MIT Gorge Aquirre and
Carmen Plasencia were suspended on about October 5. At Hynes, Consuelo Buenrostro,
Wilson Melgar, Alejandro Silva, Ana Vargas, Maria Salmoran, Ana Martinez, Silvia Vargas,
Sandra Montoya, Agnaldo Arruda, James Coakley and Maria Martinez were suspended. At
Fenway, about October 1, Dario Roldan and Jose Luissy were suspended. At the start of the
new baseball season in 2007, one of these employees came back to work with a new social
security card and the other employee failed to show up seeking re-employment.
C. Respondents Refuse to Provide Information to the Union
In his September 21 letter to Meghan King, Lang requested information regarding
Respondent Educational’s apparent change in its no match policy. The information requested is
set out about at pages four and five of this decision. Lang sent similar requests to Respondents
at Hynes and Fenway. Other UNITE HERE locals sent similar requests. International Union
official Kurt Edelman told Richard Ellis that similar requests were going to be made at all of
Respondent’s locations nationwide. When Ellis said that Respondent preferred to just deal with
the request on the International level, Edelman rejected this approach and reiterated that the
requests would be made by the locals.
Although the requests on their face are broad, Lang testified that they were meant to
apply only to the MIT, Hynes and Fenway facilities, not all of ARAMARK’s facilities. In response
to a question from General Counsel, Lang testified that Respondent never sought clarification
as to how broad the request was meant to be. However, at a different part of his testimony,
Lang admitted that in a telephone conversation with Respondent’s official Ted Bennett, Bennett
asked and Lang replied as follows:
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“…[h]e said well what information exactly do you want. I said I want exactly the
information that was on the original information request and he said can’t you narrow it down. I
said no and that’s where it was left.”
At MIT, King responded to Lang’s request by letter dated September 25. Without giving
any reason, she stated that she would not comply with the request. She referred any further
question to Ted Bennett, Senior Director of Labor Relations at ARAMARK’s Corporate Office in
Philadelphia. Shortly after receiving King’s letter, Lang telephoned Bennett. He asked Bennett to
comply with the information request. He also asked Bennett why Respondent was changing its
no match policy without notifying and bargaining with the Union. Bennett did not respond to the
question about the change and said he would get back to Lang about the information request.
At Hynes, in response to the Union’s information request, Leigh Thumith sent Lang an
undated letter at the end of September. She said that she was investigating the Union’s
information request and would provide the appropriate information after Respondent Stevens
had compiled the documents. Thumith never provided any of the requested information.
Lang testified that he spoke by telephone in late September with Rob Gould. According
to Lang, he told Gould that the new no match policy was a change and he would need
information. According to Lang, Gould told Lang that the information that he had requested at
Fenway and Hynes was “out of bounds.” Gould testified that this conversation took place on
September 24 while he was on vacation and before the written information requests had been
sent. Gould remembered Lang asking for an employee list and Gould said he would provide
one. He did not follow through if indeed he said he would. On this point, to the extent there is a
difference between Lang’s and Gould’s testimony, I credit Lang. His references to the
conversation in correspondence that he wrote to the Company at the time corroborate his
testimony.
Local 26 did receive a positive response to its information requests from Richard Ellis
acting on information requests made by the International Union. He responded by separate
letters dated November 20 (MIT and Fenway) and December 12 (Hynes). The letters were
nearly identical, with the only difference being the employee suspension information on the last
page of the attachment. Attached to the letters were the documents listed below:
l. A document titled Social Security Number (SSN) Verification Process for New Hires
and Current Employees with SSN Discrepancies (Updated July 2005);
2. Documents titled “Letter I” and “Letter II” that instructed employees as to what they
needed to do to correct SSN discrepancies.
3. A document titled “Social Security Number Verification Request for New Hires”;
4. A document titled “Social Security Number Verification”;
5. A document titled “Social Security Card Notice to All Applicants and Employees;”
6. A no match letter dated April 7, with all employee names and SSN’s redacted;
7. A computer printout with the names of bargaining unit employees who were
suspended for not complying with Company policies.
After reviewing the letter and documents, Lang concluded that the information was not
fully responsive to the Union’s information request. He wrote to Bennett on December 8. He
reiterated the Unions request for all the information he had originally requested. He also
enclosed a copy of the original request.
Within a month of the December 8 letter, Bennett telephoned Lang. As noted above,
Bennett asked Lang exactly what information he wanted. Lang said he wanted exactly the
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information that was on the original information request. Bennett asked if Lang could narrow it
down. Lang said no. The Union had not received any information other than the November 20
and December 12 correspondence in response to its information requests.
Lang testified as to why the Union needed the information it requested at the three
facilities. He explained that the Union needed the information described in paragraph 1 of its
requests in order to ascertain if SSA was putting new requirements on Respondents with
respect to their handling of no-match letters. That is why the request goes back to 2002, so that
the Union can determine how the SSA requirements have evolved over time.
Lang testified that the Union needed the information requested in paragraph 2 of its
requests because it was aware that DHS had proposed the safe harbor provision and the Union
was trying to find out if the Respondents’ no-match policy was related to the DHS proposal and
whether the DHS was directing Respondents to do what they were doing.
Lang testified that the Union needed the information requested in paragraph 3 to see if
the SSA’s instructions on no-match letters had changed since 2002. The Union also needed the
letters to determine the names of employees who had been the subject of the letters in the past.
The Union needed the information requested in paragraphs 4, 8 and 9 of its requests in order to
determine if there was a change in the way Respondents were relating to DHS and SSA
regarding the verification of employee SSNs.
Lang testified that the information requested in paragraphs 5, 6 and 7 of the Union’s
requests was relevant to the issue of how Respondents’ no-match policy had changed over the
years since 2002. The Union suspected there had been a change but it was trying to determine
the nature of the change.
D. Did the Respondents Violate the Act by Failing and Refuse to Bargain over the
Change in its Policy Regarding No-Match Letters
Absent the clearly expressed consent of the union, an employer violates Section 8(a)(5)
by changing a term or condition of employment without first bargaining to impasse with the
Union. NLRB v. Katz, 396 U.S. 736 (1962). The rules governing the imposition of employee
discipline are mandatory subjects of bargaining. United Cerebral Palsy of New York City, 347
NLRB No. 60, slip op. at 5 (2005). In addition, the establishment of a new condition of continued
employment and new grounds for discipline are mandatory bargaining subjects. Where
employees are disciplined for failing to comply with a unilaterally changed policy, such a change
is material, substantial and significant. Toledo Blade Co., 343 NLRB 385 (2004). An employer
can make unilateral changes to such mandatory bargaining subjects only if the union clearly and
unmistakably waives its right to negotiate over the changes. See Metropolitan Edison Co. v.
NLRB, 460 U.S. 693 (1983); Provena St. Joseph Medical Center, 350 NLRB No. 64 (2007);
California Offset Printers, Inc. 349 NLRB No.71 (2007).
First it is clear to me for the reasons set forth in the factual discussion at an earlier point
in this decision that Respondents have made a significant change in their policy regarding no
match letters, and further, their total about face in their enforcement of the policy by itself
requires notice and bargaining upon request of the affected Union. A change from lax
enforcement to more stringent enforcement must be bargained over. United Rentals, 350 NLRB
No. 76, slip op. at 2 (2007).
Respondents take the position that that the Union has waived its right to bargain over
the changes in the no match policy and/or its decision to enforce the policy more stringently
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because, 1) the Union did not request to bargain over these changes, 2) any request made was
not timely, 3) the contracts at Hynes and MIT already address the no match policy changes, and
4) the Respondents did in fact agree to meet and bargain over the changes, albeit at the
International Union level.
The first two reasons given are not supported by the facts. Upon being notified of the
changes at MIT in letter from King to Lang, the Union requested a meeting over the changes in
a letter sent to King the next week. Lang sent a similar letter requesting a meeting over the
changes to Issac Jackson, Director of Operations at Hynes on September 13. The information
request sent by Lang to Julie Jordan, ARAMARK’s General Manager at Fenway on October 7
impliedly requests bargaining stating: “There is another reason that you may not implement the
proposed regulation before it is adopted. In the past, ARAMARK has received Social Security
Administration no-match letters and has not taken the steps that it is now taking. ARAMARK
may not change its employment policies without bargaining with Local 26.” This letter was sent
about a week after Lang was informed of the changes that would take place at Fenway. I find
that the Union made timely request for bargaining over the changes to the no-match policy at
each of the involved facilities and they went unheeded at the local level.
The collective bargaining agreements at Hynes and MIT do cover the subject of no
match letters without much specificity. In the first paragraph, they call for the Company to inform
the Union in writing when a no match letter is received and upon request of the Union, to meet
to see if the problem presented can be mutually resolved. The second paragraph calls for the
Company to furnish any employee terminated because the employee is not authorized to work
in the U.S. his or her rights and obligations under this portion of the collective bargaining
agreement. ARAMARK’s new policy is more restrictive and specific than the existing contract
language and perhaps, more importantly, will be enforced whereas there was no enforcement of
the no-match policy before September 2006. The complete change in the enforcement feature
of the policy requires bargaining, upon request, as noted above.
On the other hand, I believe Respondents’ fourth defense to be a valid one. While
Bennett and Gould notified Lang of the impending no-match policy enforcement, Ellis
concurrently notified his counterparts at UNITE HERE’s International Union of those changes.
UNITE HERE’s Constitution authorizes representatives of the International Union to bargain and
reach agreements on behalf of the local affiliates. Any agreement Ellis and the International
might have reached would have been binding on Local 26. Upon receiving the notification from
Lang, the International Union requested bargaining over the changes. Over the next several
months, Ellis and officials of the International Union discussed and negotiated the issue over the
phone and then in January met face to face to bargain. During these discussions, ARAMARK
froze the implementation of the changes. The discussions throughout the fall of 2006 and the
face to face meeting included exchanges of proposals. However the parties could not reach
agreement on whether the Company would change its no-match policy or the extent of the
change. As evidenced by letters sent by Local 26 to the Company, the Union’s position is fixed,
it wants no enforcement of the Employer’s no-match policy. The Respondent’s position is
equally fixed, it wants to comply with existing immigration law and implement its no-match
policy. The International Union walked away from negotiations saying no resolution of the
parties differences could be reached.
Bargaining with the International rather than the individual locals makes perfect sense as
the changes were taking place nationwide and would affect all of the International Union’s locals
at ARAMARK facilities. The parties, in my opinion, did bargain over the changes at the
International Union level and could not reach agreement. Though I believe that the
Respondents may have violated the Act by their September conduct, I find they cured this
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violation by agreeing to bargain with the International Union and then freezing implementation
while bargaining took place. I find that the parties did bargain as the law demands and reached
impasse. This impasse is effective with respect to Local 26. Therefore I find no violation of the
Act and will recommend this portion of the Complaint be dismissed.
E. Did Respondents Violate the Act by not Providing Local 26 Information Requested.
As with its bargaining obligation, Respondents chose to respond to the International
Union and provide it with information with copies to the locals with which it had a bargaining
relationship. Ellis advised the International Union what he would produce, produced it to the
International, and never had an objection from the International Union. ARAMARK also
received information requests from local unions other than local 26. It responded identically as it
did with Local 26 and provided them with the information provided to the International Union.
Other than a local in Washington, none objected. The Washington local filed a charge with the
involved Region and it was dismissed. As the changes proposed were nationwide, I agree with
Respondent that dealing with the International Union rather than a number of local unions was
the only sensible approach. Further, I agree with Respondent that Local 26’s information
requests were overly broad, and not limited in any way. Though Lang testified that the requests
were meant to apply only to Fenway, Hynes and MIT, it is not clear from the testimony that this
limitation was expressed to Respondents. Local 26 has refused to narrow the scope of its
information requests though urged to do so by Respondents. Thus most of the requests are
overbroad, and unnecessarily burdensome to comply with as they require production of
information for employees not part of the bargaining unit. They also seek historical information
on employees that is meaningless in the context of the changes made to the no-match letter
policy in 2006. I also find the information requested to be of only marginal relevance at best.
I believe the information that was requested and that is relevant to the local’s role has
either been provided in the material supplied pursuant to the International Union’s request or
satisfied by material produced at hearing pursuant to the General Counsel’s subpoena or by
stipulation. Local 26 has now received, by virtue of Aramark’s response to the General
Counsel’s subpoena, the no-match letters covering MIT, Hynes and Fenway in 2006. Even if it
were practical to gather the same information for the years 2002-05, I cannot see what
relevance the historical information would have had for Local 26 in 2006. By virtue of
ARAMARK’s informal communications and its response to the International Union’s request,
Local 26 knew which of its members wree affected by the no-match policy in 2006 and how they
would have been treated. I do not believe Local 26 needed anything more to effectively
represent its members in 2006 and subsequent years. I see no reason to order the production of
this historical information, given the difficulty in gathering it, its marginal relevance and
considering the information obtained by Local 26 from the General Counsel’s subpoena. In a
similar vein, Respondent has provided a sample 2006 no-match letter received in 2006 and has
received from SSA no instructions beyond what is contained in that letter and virtually identical
letters in 2002-05.
Local 26’s requests for all communications between ARAMARK and DHS and SSA have
not shown to be relevant enough to the Local’s role as representative to require the
Respondents to reply. Even before the DHS began its rulemaking, the Respondents already
had a clear duty under existing federal immigration laws to follow up on no-match letters to
ensure that its workforce was authorized to work in the US. ARAMARK was subject to civil and
criminal penalties if it failed to do so. Lang testified that Local 26 wanted to see whether the
government’s instructions to ARAMARK, or ARAMARK’s policy had changed. First, if that was
the extent of Lang’s need for information, a look at the Policy (which ARAMARK provided to
Local 26) and a simple request for copies of instructions from the government would have
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sufficed. Moreover, a historical look at ARAMARK’s practices would not assist Local 26 in
representing employees in 2006. Knowing the names of ARAMARK employees on no-match
lists prior to 2006 would not have any meaning as nothing happened to them and they would not
be affected unless their names came up on the 2006 no-match letter or a subsequent one.
As noted, ARAMARK has supplied information on the matter of its no-match policy to the
International Union, without complaint, and a copy of that information response was given to
Local 26. By virtue of that response, and the response to General Counsel’s subpoena, Local
26 in my opinion has received everything requested in its request that is even marginally
relevant and not overly broad. Local 26’s refusal to limit the scope of its request makes it
unreasonable to require Respondents to further respond. Given my ruling on the lawfulness of
the changes in the no-match policy, and my discussion of Respondents’ response to the
information requests, I do not find that Respondents have violated the Act. I will recommend
dismissal of this portion of the Complaint.
Conclusions of Law
1. Respondents ARAMARK Educational Services, Inc., ARAMARK d/b/a Harry
M. Stevens, Inc., and ARAMARK Sports, Inc. are employers engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
2. UNITE HERE Local 26 is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent’s did not commit the unfair labor practices alleged in the
Complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER
The complaint is dismissed.
Dated, Washington, D.C. May 13, 2008
____________________
Wallace H. Nations
Administrative Law Judge

3 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 purposes.