Executive Cleaning Services

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 227 (N.L.R.B. 1994)

227
315 NLRB No. 33
EXECUTIVE CLEANING SERVICES
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 credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence 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 Ex-
ecutive 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 em-
ployees 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 de-
certification 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 Execu-
tive 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-bar-
gaining 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 po-
sition 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 Pack-
ing Co., 303 NLRB 386 (1991). Further, to the extent that Lapeer
Foundry & Machine, 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 deci-
sion to lay off employees or to subcontract work is a mandatory sub-
ject 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 employer until after
Continued
Executive Cleaning Services, Inc. and AT&T and
Local 68, International Union of Operating En-
gineers, AFL–CIO and Tower Center Associ-
ates, Party In Interest
Thru State Maintenance, Inc. and Local 68, Inter-
national Union of Operating Engineers, AFL–
CIO and Local 734, Laborers’ International
Union of North America, AFL–CIO, Party In
Interest and Tower Center Associates, Party In
Interest. Cases 22–CA–16200 and 22–CA–16518
September 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS DEVANEY
AND COHEN
On May 21, 1992, Administrative Law Judge How-
ard Edelman issued the attached decision. Respondent
AT&T filed exceptions and a supporting brief, the
General Counsel filed cross-exceptions and a support-
ing brief,1 Respondent AT&T, the General Counsel,
and the Charging Party each filed answering briefs,
and Respondent AT&T filed two reply briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 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 de-
cision 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 ‘‘employ-
ees 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, 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, 452 U.S. 666 (1981);
Holmes & Narver, 309 NLRB 146, 147 (1992) (deci-
sion to lay off employees for economic reasons was
mandatory subject of bargaining).5 By failing and re-
fusing to bargain over this decision, Respondents
AT&T and ECS, as joint employers, violated Section
8(a)(5) and (1) of the Act.6
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
TCA’s February 16, 1989 letter announcing that the decision had al-
ready been reached, and no party contends that any negotiations oc-
curred 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 re-
sponse 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 re-
newal 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 Re-
spondent, is addressed to ECS with copies to the Federal and state
mediation services, ECS’s president, Mannix, testified that he never
received the letter.
8 See, e.g., Interprint Co., 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 Coun-
sel’s claim that a meeting of the minds existed. Cf. Bi-County Bev-
erage Distributors, 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).
10 We find no merit to AT&T’s suggestion that any restoration
order should require only that the parties bargain in good faith con-
cerning restoration, in light of the judge’s finding that the sub-
contracting here violated both Sec. 8(a)(3) and (5). Likewise, there
is no basis for conditioning the restoration order on ECS’s willing-
ness to resume operations at One Tower Center, as AT&T suggests,
because ECS is also a respondent in this case. Any claim that ECS
cannot comply with the Board’s Order may be raised at the compli-
ance stage of these proceedings.
Member Cohen agrees with his colleagues that Respondents
AT&T and ECS violated Sec. 8(a)(5) and (1) by laying off ECS em-
ployees and subcontracting their work to Thru State Maintenance
2. The General Counsel has excepted, inter alia, to
the judge’s finding that AT&T and ECS did not un-
lawfully 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 build-
ings, the judge correctly found that evidence of an oral
agreement may not be used to vary the terms of a writ-
ten agreement. See NDK Corp., 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 employ-
ment 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 subse-
quently 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 ex-
ists, 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 agree-
ment arises only after a meeting of the minds on all
material terms. Roman Iron Works, 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 re-
spect 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 con-
stitute 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 suc-
cessor agreement existed, or that AT&T or ECS un-
lawfully repudiated such an agreement at One Tower
Center in 1989.
AMENDED REMEDY
The General Counsel contends that the judge’s rec-
ommended Order should be modified to include a pro-
vision expressly requiring that ECS be reestablished as
the cleaning contractor at One Tower Center. We find
merit to this exception and shall modify the judge’s
Order accordingly. See Hillside Manor, 257 NLRB
981 (1981), enfd. mem. 697 F.2d 294 (2d Cir. 1982).10
229EXECUTIVE CLEANING SERVICES
without timely notice to or bargaining with Local 68. He also agrees
that requiring the Respondents to restore the status quo by reestab-
lishing ECS as the cleaning contractor at One Tower Center, and re-
instating ECS employees laid off on March 31, 1989, is the appro-
priate remedy for this violation. See, e.g., Hillside Manor, supra. In
light of this conclusion, Member Cohen finds it unnecessary to reach
the 8(a)(3) issue.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
We also shall modify the judge’s Order to include ap-
propriate provisions remedying the 8(a)(3) violations
found and shall modify the remedy and substitute a
new notice to employees with respect to Respondent
Thru State Maintenance to more closely reflect the vio-
lation found against that employer.
ORDER
The National Labor Relations Board orders that the
A. Respondents AT&T and ECS, joint employers,
East Brunswick, New Jersey, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing to recognize and bargain collectively
with Local 68, International Union of Operating Engi-
neers, AFL–CIO, with respect to wages, hours, and
other terms and conditions of employment, including
the decision and effects of subcontracting its cleaning
services, for the following unit of employees:
All custodial maintenance and related categories
of employees employed by Executive Cleaning
Services, Inc. at One Tower Center.
(b) Discontinuing the use of Executive Cleaning
Services, Inc. (ECS), as the cleaning contractor for
AT&T at One Tower Center resulting in the termi-
nation of employees employed by ECS without bar-
gaining collectively and in good faith with the Union.
(c) Discriminating against employees in regard to
hire or tenure of employment for the purpose of dis-
couraging membership in a labor organization by ter-
minating employees in retaliation for the size of the
Union’s wage demands.
(d) Soliciting employees to sign a petition seeking to
decertify the Union as their collective-bargaining rep-
resentative.
(e) Prohibiting authorized union representatives from
lawfully conducting union business in the One Tower
Center facility.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reestablish ECS as the cleaning service contrac-
tor at One Tower Center.
(b) Recognize and bargain with the Union in good
faith as the exclusive representative of the employees
in the unit described above concerning terms and con-
ditions of employment, including any decision and the
effects thereof of subcontracting the cleaning services
at the One Tower Center facility to another cleaning
contractor and, if an agreement is reached, to embody
such agreement in writing.
(c) Reinstate and make whole those employees of
ECS who were laid off on March 31, 1989, for any
loss of pay or other benefits suffered as a result of the
Respondents’ unlawful conduct in the manner set forth
in the remedy section of the judge’s decision.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay
due under the terms of this Order.
(e) Post at the One Tower Center, East Brunswick,
New Jersey facility copies of the attached notice
marked ‘‘Appendix I.’’11 Copies of the notice, on
forms provided by the Regional Director for Region
22, after being signed by each Respondent’s authorized
representative, shall be posted by the Respondents im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
B. Respondent Thru State Maintenance, Inc., East
Brunswick, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Recognizing or bargaining with Local 734, La-
borers’ International Union of North America, AFL–
CIO, as the collective-bargaining representative of its
employees at One Tower Center unless or until an
uncoerced majority of the employees in an appropriate
unit designate Local 734 as their representative.
(b) Giving any force or effect to the collective-bar-
gaining agreement executed between Local 734 and
Thru State in 1989 covering its employees at One
Tower Center with respect to rates of pay, hours, and
other terms and conditions of employment.
(c) Maintaining and enforcing any union-security
and checkoff provisions in the above-described collec-
tive-bargaining agreement and deducting union dues
from its employees and remitting such dues to Local
734.
(d) Informing its employees at One Tower Center
that they must become members of Local 734 as a
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 See fn. 11, above.
condition of continued employment and must execute
dues-checkoff cards.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold recognition of Local 734
as the collective-bargaining representative of its em-
ployees at One Tower Center unless and until a free
and uncoerced majority of employees within an appro-
priate unit designate Local 734 as their collective-bar-
gaining representative.
(b) Reimburse its employees at One Tower Center
for any dues, fees, initiation fees, or other moneys de-
ducted from their wages and paid to Local 734 pursu-
ant to the collective-bargaining agreement described
above, with interest, in the manner set forth in the
judge’s decision.
(c) Post at the One Tower Center, East Brunswick,
New Jersey facility copies of the attached notice
marked ‘‘Appendix II.’’12 Copies of the notice, on
forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX I
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail to recognize and bargain collec-
tively with Local 68, International Union of Operating
Engineers, AFL–CIO, with respect to wages, hours,
and other terms and conditions of employment, includ-
ing the decision and effects of subcontracting our
cleaning services, of the following unit of employees:
All custodial maintenance and related categories
of employees employed by Executive Cleaning
Service, Inc. at One Tower Center.
WE WILL NOT discontinue the use of Executive
Cleaning Services (ECS) as the cleaning contractor for
AT&T at One Tower Center without bargaining collec-
tively and in good faith with the Union.
WE WILL NOT solicit employees to sign a petition
seeking to decertify the Union as the collective-bar-
gaining representative of the above unit of employees.
WE WILL NOT discriminate against our employees on
the basis of their participation in protected, concerted
activities by subcontracting our cleaning services and
laying off employees in retaliation for bargaining pro-
posals submitted by the Union.
WE WILL NOT prohibit authorized union representa-
tives from lawfully conducting union business in the
One Tower Center facility.
WE WILL reestablish ECS as the cleaning contractor
for the One Tower Center facility.
WE WILL recognize and bargain with the Union in
good faith as the exclusive representative of the em-
ployees in the unit described above concerning terms
and conditions of employment, including any decision
and the effects thereof of subcontracting the cleaning
services at the One Tower Center facility to another
cleaning contractor and, if an agreement is reached,
embody such agreement in writing.
WE WILL reinstate and make whole those employees
of ECS who were laid off on March 31, 1989, for any
loss of pay or other employment benefits suffered as
a result of our unlawful conduct, with interest.
WE WILL preserve and, on request, make available
to the Board or its agents for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
AT&T AND EXECUTIVE CLEANING
SERVICES, INC., JOINT EMPLOYERS
APPENDIX II
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT recognize or bargain with Local 734,
Laborers’ International Union of North America, AFL–
CIO, as the collective-bargaining representative of our
employees at One Tower Center unless or until a free
and uncoerced majority of our employees within an ap-
propriate unit designate Local 734, Laborers’ Inter-
national Union of North America, AFL–CIO, as their
representative.
WE WILL NOT give any force or effect to the collec-
tive-bargaining agreement executed between Local 734
231EXECUTIVE CLEANING SERVICES
1 This case was a long and complex case. All counsel, throughout
the course of trial and in their briefs demonstrated the very highest
quality of legal excellence.
2 ATT is composed of many different corporations, all wholly
owned and operated by AT&T which were set up to perform various
operations for AT&T. There is no dispute that the 195 Broadway
corporation and other corporations described below were part of
AT&T.
and our corporation in 1989 covering our employees at
One Tower Center with respect to rates of pay, hours,
and other terms and conditions of employment.
WE WILL NOT maintain or enforce any union-secu-
rity or checkoff provisions in the above-described col-
lective-bargaining agreement and WE WILL NOT deduct
union dues from our employees and remit such dues
to Local 734.
WE WILL NOT inform our employees they have to
become members of Local 734 and execute dues-
checkoff cards as a condition of continued employ-
ment.
WE WILL withdraw and withhold recognition of
Local 734 as the collective-bargaining representative of
our employees at One Tower Center unless and until
a free and uncoerced majority of employees within an
appropriate unit designate Local 734 their collective-
bargaining representative.
WE WILL reimburse our employees at One Tower
Center for any dues, fees, initiation fees, or other mon-
eys deducted from their wages and paid to Local 734
pursuant to the collective-bargaining agreement de-
scribed above, with interest.
THRU STATE MAINTENANCE, INC.
Wayne Eastman, Esq., for the General Counsel.
Francis X. Dee, Esq. (Carpenter, Bennett & Morrissey), for
AT&T.
Anna R. O’Connor, Esq., for AT&T.
Albert G. Knoll, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on January 8–10, 17, and 18, April 2,
3, 4, and 5, June 18–21, 1990, and February 19 and 22,
1991, in Newark, New Jersey. The case was based on a con-
solidated complaint dated October 31, 1989, on unfair labor
practice charges filed by Local 68, International Union of
Operating Engineers, AFL–CIO (the Union). The complaint
was amended during the trial, on January 9. The complaint
alleges in substance that American Telegraph & Telephone
(Respondent AT&T) was a joint employer of the employees
of its cleaning contractor, Executive Cleaning Services, Inc.
(Respondent ECS) at the One Tower facility in East Bruns-
wick, New Jersey; that Respondent AT&T violated Section
8(a)(3) and (5) of the Act by terminating Respondent ECS
and subcontracting its cleaning service contract to another
cleaning contractor without affording the Union an oppor-
tunity to bargain over the decision; that Respondent AT&T
violated Section 8(a)(5) of the Act by repudiating an oral
agreement with the Union concerning terms of a successor
collective-bargaining agreement; that Respondents AT&T
and ECS violated Section 8(a)(1) of the Act by soliciting the
employees of Respondent ECS to file a decertification peti-
tion; and that Thru State Maintenance, Inc. (Thru State) vio-
lated Section 8(a)(2) of the Act by assisting and recognizing
Local 734, Laborers’ International Union of North America,
AFL–CIO (Local 734), and entering into a collective-bar-
gaining agreement with Local 734, notwithstanding that
Local 734 did not represent an uncoerced majority of Thru
State employees.
On the entire record, including my observation of the de-
meanor of the witnesses, and on a careful consideration of
the posttrial briefs, I make the following
FINDINGS OF FACT1
AT&T is a corporation with an office and place of busi-
ness at One Tower Center in East Brunswick, New Jersey,
where it is engaged in providing telephone communication
services. In the course and conduct of such business AT&T
annually derives gross revenue in excess of $100,000. It also
annually sells and ships from its New Jersey facilities goods
and materials valued in excess of $5000 directly to points lo-
cated outside the State of New Jersey. It is admitted, and I
find, that AT&T is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
ECS is a corporation with an office and place of business
in Highland Park, New Jersey, where it is engaged in provid-
ing commercial cleaning services. ECS during its normal
course of business between March 31, 1989, and March 31,
1990, provided cleaning services for various AT&T facilities
located in New Jersey valued in excess of $50,000. It is ad-
mitted, and I find, that ECS is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
Thru State is a corporation with an office and place of
business in Fanwood, New Jersey, where it is engaged in the
business of providing commercial cleaning services for var-
ious commercial buildings. During the normal course of its
business during the period between March 30, 1988, and
March 30, 1989, it provided services in excess of $50,000
for corporations located in the State of New Jersey which are
directly engaged in interstate commerce. Thru State admits,
and I find, that it is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
The Union and Local 734 are admittedly, and I find, labor
organizations within the meaning of Section 2(5) of the Act.
Beginning in the late 1960s AT&T started to operate cer-
tain facilities in New Jersey. According to the credible testi-
mony of Eugene McNany, then the controller of the 195
Broadway Corporation, a corporation within the AT&T over-
all corporate structure2 with responsibility for AT&T’s real
estate operations, AT&T officials including McNany met
with John and Vincent Giblin, officers of the Union. During
this meeting NcNany stated AT&T knew that it was going
to employ operating engineers at some facilities as its own
employees as well as subcontracting engineering and clean-
ing service work, and it wanted to deal with a reliable labor
organization, namely, the Union. After this initial meeting
the Union negotiated the essential terms of a collective-bar-
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Vincent Giblin essentially corroborated McNany’s testimony ex-
cept that he mistakenly testified that AT&T Official Stan Smith was
present. I conclude that Giblin was a very credible witness, notwith-
standing some errors in recollection some inconsistencies. I was par-
ticularly impressed with his demeanor and with his overall excellent
recollection of relevant details. Throughout his testimony, he ap-
peared to be reliving many of meetings to which he testified.
4 Neither Wetzel nor Bladder testified. Stomski testified and denied
such negotiating. For reasons set forth below I conclude that Stomski
is an incredible witness.
5 Mannix was called as a witness by counsel for the General Coun-
sel pursuant to Rule 611(c) of the Federal Rules of Civil Procedure.
ECS is a respondent to this proceeding and Mannix was a hostile
witness. I have credited his testimony set forth below as it is to an
extent, an admission against his interest, and because of his pre-
sumed and demonstrated hostility against the positions of General
Counsel and the Union, such testimony is entitled to a high degree
of credibility.
gaining agreement which was signed by AT&T’s initial
cleaning contractor, McLean.3 The agreement covered a cer-
tain AT&T facility in Piscataway, New Jersey.
Thereafter, and through at least 1987, the Union rep-
resented the employees of the cleaning contractors subcon-
tracted by AT&T to service AT&T’s Piscataway facilities,
and operating engineers employed by other contractors to
perform engineering services for AT&T at the same loca-
tions.
During the years through at least 1987, AT&T took over
other facilities in New Jersey and collective-bargaining
agreements were entered into with the Union on behalf of
other mechanical and cleaning contractors in the same man-
ner as described above. From time to time there were
changes in the contractors, however the Union always rep-
resented the employees of the successor contractor, because
it was understood by the bidding contractors that the job was
a union job. All collective-bargaining agreements between
the Union and the contractor had the same expiration dates
and were for terms of 3 years.
According to the credible testimony of Giblin, negotiation
of the service and mechanical contractors contracts was han-
dled directly by Giblin for the Union, and Fran Wetzel and
John Bladder of AT&T. At some later point in time Giblin
negotiated both the service and mechanical contracts directly
with Thomas Stomski, AT&T building manager of oper-
ations. As new jobsites opened up in Piscataway, Giblin
would negotiate directly with Wetzel as to the essential terms
for the cleaning service and mechanical contracts. Wetzel
would inform the contractors bidding on the various jobs as
to the essential terms (pay rates) and the contractors aware
of the essential terms would frame their bids with these
terms in mind. When AT&T selected the contractors, Wetzel
would inform Giblin and Giblin would mail a copy of the
Union’s collective-bargaining agreement which the contractor
would sign and return. Eventually, Giblin conducted the
same negotiations with Stomski.4 Sometime in 1984, after di-
vestiture of AT&T Giblin called Stomski and told him he
was having a labor problem reaching a collective-bargaining
agreement with a contractor, Joule, at AT&T’s facility in
Hopewell, New Jersey. Stomski referred him to Jim Griggs
of AT&T. Giblin contacted Griggs and negotiated a collec-
tive-bargaining agreement with Griggs covering Joule’s em-
ployees. Joule refused to sign the agreement and AT&T ter-
minated Joule. Although Griggs was not called as a witness
a court deposition substantially corroborates Giblin’s testi-
mony. There is no evidence that any of the subcontractors
employed by AT&T, whether service or mechanical ever ne-
gotiated collective-bargaining agreements directly with the
Union, nor is there any evidence that the Union organized
the employees employed by these contractors.
As set forth above, ECS was a cleaning contractor who
performed cleaning services for AT&T. Daniel Mannix was
the president and sole owner of ECS. Mannix credibly testi-
fied5 that sometime in 1984, ECS had been awarded various
cleaning contracts for AT&T facilities at various locations
throughout northern New Jersey. Mannix was friendly with
Thomas Stomski who advised him, along with other AT&T
officials, that the facilities were ‘‘Union’’ facilities and the
amount of the labor rates negotiated between AT&T and the
Union. Mannix then submitted bids for these facilities using
the labor rates supplied to him by Stomski and other AT&T
officials in formulating his bid. He received his award based
on his low bid. On being notified by AT&T of his award,
he went to the offices of the Union where he was given an
agreement containing the labor rates negotiated between
AT&T and the Union which he signed without any negotia-
tion.
Sometime prior to 1985 AT&T and Tower Developers, a
commercial real estate developer formed a partnership,
Tower Center Associates (Tower), for the purpose of build-
ing and running a facility called the Tower Center complex
which was to consist of two office buildings and a hotel. The
partnership agreement provided that Tower Developers was
to be the managing partner and receive 51 percent of the in-
terest in the partnership for the purpose of distribution of
profits. AT&T was to receive 49 percent. However, overall
management of the venture was to be shared collectively be-
tween the partners.
On September 15, 1985, Tower entered into a lease with
AT&T as a tenant for the occupancy of the entire Tower One
building. The lease was for a term of 15 years. As the sole
tenant of the building, AT&T was responsible for the pay-
ment of operating expenses, which included cleaning costs of
the building. In this connection the lease provided that
AT&T had the exclusive right to select cleaning contractors
to provide the necessary cleaning services.
Sometime during the summer of 1985, Mannix, who was
friendly with Stomski, met with Stomski and asked him if
he could use his influence to have him selected as the clean-
ing contractor for AT&T when it commenced its occupancy
of Tower One. Stomski agreed. It appears that up through the
summer of 1985, Stomski had responsibility for staffing and
plans for operating the building. From summer of 1985
through March 1987 this responsibility was transferred by
AT&T to Jerry Twardy, an AT&T building manager. The
building manager of Tower was Steve Herzog, an employee
of Tower Developers. Herzog testified that as the representa-
tive of the landlord, Tower, which owned the entire complex,
of which AT&T was the sole tenant of Tower One, he was
concerned with the welfare of the entire complex, rather than
only with the maintenance of Tower One. In accordance with
such concern, Herzog obtained an oral agreement from
Twardy to permit him to select the cleaning and mechanical
contractors for Tower One notwithstanding the lease between
233EXECUTIVE CLEANING SERVICES
6 As set forth above, I found Giblin to be a credible witness. I find
his testimony in this connection particularly credible because of
Giblin’s detailed testimony which I do not believe could so easily
be fabricated. Moreover, there would have been no reason for his
presence at this meeting unless it was just such issues that were
being discussed. Stomski incredibly testified that the meeting was set
up because Giblin did not really believe in the reality of the divesti-
ture of AT&T. Stomski testified that during the entire meeting he
explained the divestiture process that had taken place. I find such
testimony incredible for four reasons. First, I was particularly
unimpressed with the demeanor of Stomski. He appeared nervous at
times, was evasive at other times, and vague at other times during
the course of his testimony. Second, his entire testimony consisted
essentially of denials concerning this conversation and almost all
other relevant conversations, prior to and subsequent to the instant
conversation with Giblin, as contrasted with Giblin’s detailed testi-
mony as to these other conversations. Third, if the conversation were
about divestiture, there would be no reason for Larkin’s presence.
and fourth, divestiture had taken place 2 years prior to this meeting.
Giblin had had prior discussions with Stomski concerning the effects
of divestiture at the time it had gone into effect. If at this late date
Giblin still had some lingering questions concerning divestiture, he
could have called Stomski, or some other AT&T official on the
phone, or called his attorney. In any event there was clearly no rea-
son to set up a special meeting to discuss something that was by
now ancient history. I have no problem concluding that Stomski is
not a credible witness.
I note that no party called Larkin as a witness. This is too bad.
His testimony would have probably been most helpful. However, I
do not find the failure of General Counsel to call Larkin in any way
affects the credibility of Giblin.
7 I conclude that Giblin’s January 13, 1986 meeting with Larkin,
his agreement with Larkin as to the rollback rate which was ulti-
mately accepted by AT&T and incorporated in the Union’s collec-
tive-bargaining agreement with Larkin, reinforces my credibility res-
olution concerning the December 1985 meeting with Stomski. I also
believe that Giblin would not have been responsible for mailing out
a collective-bargaining agreement to ECS with a rolled back labor
rate unless he was acting pursuant to what he believed was an agree-
ment with Stomski agreed upon during the the December 1985 meet-
ing.
8 Giblin testified that Larkin told him he had reached Stomski and
that the numbers came from Stomski. There was a hearsay objection
as to this testimony which was sustained.
9 Either way the testimony supports Giblin’s testimony as to the
December 1985 meeting with Stomski.
10 Mannix denied this conversation. In view of my crediblity reso-
lutions concerning Giblin and Mannix set forth above, I credit
Giblin.
Tower and AT&T which gave exclusive authority for such
selection to AT&T. From March 1987 and thereafter,
Stomski had authority for the building operations of Tower
One. At all times he was in a much more responsible posi-
tion than Twardy since he was in charge of AT&T’s building
operations over a wide geographic area which covered sev-
eral States rather than a single building, which defined
Twardy’s authority. Pursuant to Mannix’s request and since
Stomski was pleased with ECS’ services at AT&T’s other fa-
cilities, Stomski recommended to Herzog that ECS be se-
lected as the cleaning service contractor for Tower One.
On December 1985 Giblin of the Union met with Jack
Larkin, president of Larkin Services Corporation, the me-
chanical service contractor who had been selected by AT&T
as the low bidder for the Tower One building, and Stomski.
Giblin was present because it had already been decided by
Herzog, Twardy, or Stomski, or any combination of them, on
behalf of AT&T that Larkins’ employees were going to be
covered by the Union. Giblin credibly testified that from
talking to Larkin prior to the meeting he was informed that
AT&T wanted a reduction in the labor rate from the Union’s
current area rate as a precondition to a union contract be-
tween Larkin and the Union. Giblin credibly testified that
Stomski stated that he wanted to staff Tower One with
Larkin as the mechanical contractor and ECS as the cleaning
contractor, but required a lesser labor rate from the Union’s
current area rate. Stomski then stated that he wanted ECS to
be nonunion. Giblin told Stomski that he couldn’t agree to
that. Giblin insisted that any agreement would have to in-
clude that all employees employed by Larkin and ECS would
have to be union employees. After considerable discussion,
Stomski stated he would agree on the cleaning employees
and mechanical employees being Union if the Union would
agree to a rollback in the wage rate. Giblin stated that he
could agree to a rollback as long as there was a catchup at
some later fixed point in time. Stomski agreed to this in prin-
cipal. It was ultimately agreed that Giblin would get together
with Larkin, come up with some reduced labor rates, and that
Larkin would take these numbers back to Stomski.6
Pursuant to the December agreement, Giblin met with Jack
Larkin Sr. on January 13 and worked out an agreement to
roll back the labor rate for Larkin. Giblin also told Larkin
that he would roll back the labor rate for ECS to the 1984
Piscataway area rate. Giblin told Larkin that this agreement
was conditioned on a catchup in the next collective-bargain-
ing agreement. Larkin was to get back to Stomski with these
rates.
On January 15, 1986, Herzog, by letter informed Larkin
that he had been selected as the mechanical contractor, and
a collective-bargaining agreement was executed between
Larkin and the Union which included the agreed-upon rates.
Giblin, believing that since AT&T was agreeable to the
rates worked out for the Larkin agreement was also agreeable
to the rate suggested for ECS, pursuant to his January 13
meeting with Larkin, told Steven McQuire, a union business
representative, to mail Mannix a labor agreement with the
supposedly agreed-upon labor rate. McQuire mailed out such
contract. Shortly thereafter, Mannix called the Union and
told McQuire he couldn’t pay those rates.7
On January 17, 1986, Giblin and McQuire met with
Mannix who told them that the rates were too high, presum-
ably because AT&T would not agree with these rates.
Mannix never cared what the rates were as long as they were
agreeable to AT&T. Giblin credibly testified he walked to
another room and placed a call to Stomski in an effort to
work this out. Stomski was unavailable. Giblin then put in
a call to Larkin Sr., told him the problem, and asked him to
contact Stomski. (Giblin, Larkin, and Stomski were socially
friendly with each other.) Larkin contacted Giblin a few min-
utes later and informed him as to a slightly lower set of rates
that AT&T presumably would agree to.8 Giblin returned to
Mannix, showed him the rates which Mannix indicated were
acceptable. Mannix essentially corroborated Giblin, except
that he testified that he initially presented the rates that
AT&T was looking for to Giblin.9 Giblin then told Mannix
not to forget that there would be a catchup in the rates for
the next contract.10 A collective-bargaining agreement was
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Stomski completely denied this conversation. For the reasons set
forth above, I do not credit Stomski.
12 The evidence set forth in the above paragraph is based on the
credible testimony of Harriette Neyor and Kabba Kamara. I found
both of these witnesses gave detailed and mutually corroborative tes-
timony on this issue as well as testimony concerning ECS’s day-to-
day operations, which was relevant concerning the issue of AT&T
and ECS alleged as a joint employer. Their testimony was generally
candid and forthright, especially on cross-examination, and generally
consistent with their direct. Mannix admitted calling these meetings
and speaking with the employees concerning his AT&T and the
Union. He denied recommending that a decertification petition be
circulated, but admitted that in response to questions he explained
the procedure. In view of my unfavorable credibility resolution con-
cerning Mannix set forth above, I do not credit his testimony.
13 Chessman and Thompson testified that McQuire was asked to
because he did not have a badge. I credit the testimony of McQuire.
McQuire had made frequent visits to this facility before and was fa-
miliar with the proper procedure for entry. Since he was on legiti-
mate union business, there is no reason why he would not follow
such established procedure. On the other hand AT&T and ECS, anx-
ious to avoid any possible labor problem given the present situation
with the Union, might very well be motivated to restrict such visit
by McQuire. Moreover, as set forth below I do not find Chessman
and Thompson to be credible witnesses based on their testimony
concerning the joint employer status of AT&T and ECS.
prepared with the new rates and Mannix signed it. The
agreement was for a 3-year term; it did not include a catchup
provision.
On or about February 24, 1986, ECS and Tower Center
Associates (Tower) executed a service agreement. The costs
of ECS day cleaners were billed directly to AT&T with
Tower as a clerical intermediary, with the costs of the night
porters billed to Tower and passed through to AT&T to the
extent these costs exceeded base year allowances. The direct
billing arrangement for the day porters was adopted because
the day porters were there pursuant to AT&T’s request.
In January 1989, the Union prepared a new collective-bar-
gaining agreement with a labor rate proposal that incor-
porated what Giblin believed was the catchup proposal
agreed to between the Union and AT&T. This agreement
was mailed to Mannix during the first week in February. A
day or so later, Mannix, contacted Herzog about the pro-
posed union agreement and Herzog informed him the rates
were too high. Mannix then called Giblin and informed him
of Herzog’s position. Giblin told Mannix that the rates were
what AT&T had agreed to in 1986.
Giblin thereafter called Stomski and told him of his con-
versation with Mannix and reminded him of the catchup deal
he believed he had with AT&T. Stomski denied that he had
made any such deal.11 Giblin then called Herzog, but Herzog
would not take his call. Giblin then called John O’Brien an
AT&T vice president of building operations and told him
about the catchup agreement. O’Brien told Giblin that the
Union’s rates were excessive but that he believed the matter
could be worked out.
During this period Herzog and Stomski conferred about
the Union’s proposed agreement and agreed that the pro-
posed rates were too excessive. On February 9, Herzog wrote
a memo to Geoffrey Hammond, an AT&T official, which
stated that although AT&T might not want to dispute the rate
increase, it created a difficult situation for Tower Two and
the hotel. Herzog recommended the cleaning service contract
be rebid.
In a letter dated February 16, Herzog informed Mannix
that the cleaning contract would be put out for rebid because
the union rates were too excessive. Mannix responded by a
letter dated February 20 to Herzog informing him that he
was terminating his relationship with the Union and proposed
a more modest wage increase in a new nonunion contract.
On February 27, Mannix conducted two meetings, one
with the day employees and the second with the night em-
ployees. At these meetings Mannix told his employees that
their collective-bargaining agreement with the Union was ex-
piring the next day and that without the Union in the shop
they might not lose their jobs. Mannix told the employees
that the the best way to save everybody’s job was to sign
a petition and vote the Union out. He pointed out that if the
employees agreed to this they could put their names on a pe-
tition. A petition was circulated and the employees signed
the petition. A similar meeting was conducted and a petition
circulated among the night employees.12
On February 28, Union Representative McQuire received
a telephone call from Neyor who told him of the planned de-
certification petition to be filed with the Board. McQuire
went to visit Tower One. Union officials were permitted to
visit the Tower One facility to conduct union business pro-
vided they followed certain security procedures. McQuire
credibly testified that he had made a number of visits to this
facility and was familiar with the security procedures and
that he followed the established procedures on his February
28 visit which included signing in at the AT&T security desk
and obtaining a badge. After obtaining his badge he went to
the ECS office where he met ECS Supervisors Razzaq and
Chessman. He told them that their meetings with the employ-
ees were illegal. Chessman left the office and returned a few
minutes later with George Thompson, an AT&T supervisor
and a security officer. Thompson accused McQuire of being
in the building without proper authorization. McQuire said he
had a badge. Thompson claimed he had not signed in and
was unauthorized. Rather than pursue the matter McQuire
left.13
ECS employees continued to perform cleaning services for
AT&T at Tower One until March 31. On March 3, the Union
filed unfair labor practice charges which formed the basis of
the instant complaint. Following the filing of such charges
Giblin continued to press for negotiation of a new collective-
bargaining agreement with ECS by contacting AT&T offi-
cials and Mannix from ECS. On March 13, Giblin spoke
with Jack Pierson, an AT&T supervisor who reported to
O’Brien. Giblin suggested extending the ECS agreement
from month to month pending a resolution of the Union’s
charges with the Board. Giblin proposed reduced labor rates
from those originally proposed in the original agreement sub-
mitted to Mannix. Pierson stated that he would take it up
with O’Brien. Some days later O’Brien called Giblin and
told him that ECS was being terminated and that a new
cleaning contractor would be employed. During this same pe-
riod Giblin also called Mannix and proposed significantly re-
duced rate proposals over the original rate proposals. Mannix
told Giblin that it was too late.
On March 31, the ECS employees were terminated. At
some point in time in March, Thru State and Tower entered
into a contract for Thru State to perform the cleaning serv-
ices for the One Tower. Thru State was presently performing
235EXECUTIVE CLEANING SERVICES
14 Both Neyor and Kamara impressed me as credible witnesses.
Their testimony was very detailed. They gave specific examples of
such assignments. Moreover their their testimony was forthright and
consistent on both cross-and direct examination. Chessman and
Thompson both essentially testified that Thompson never made such
assignments. However, the corroborative and detailed testimony of
Neyor and Kamara impressed me more than the bare denials of
Thompson and Chessman.
cleaning services for Tower Two. On April 1, Thru State and
Local 734 entered into an initial collective-bargaining agree-
ment. As of this date Local 734 had obtained an authoriza-
tion card from a majority of the Thru State employees per-
forming cleaning services for Tower Two. At this time there
were no employees hired by Thru State to perform cleaning
services for Tower One. On April 3, Thru State began per-
forming cleaning services for Tower One with 37 nonunion
employees that were hired on or about March 31 by Thru
State. No employees formerly employed by ECS were hired
by Thru State. Local 734 obtained authorization cards for
these employees on March 5.
During the period that ECS performed cleaning services
for AT&T the ECS employees were under the supervision of
ECS Supervisor Jeff Chessman. He hired employees when
necessary and also fired or disciplined employees when nec-
essary. In addition he also made most of the daily work as-
signments. However, ECS employees (porters) Neyor and
Kamara testified credibly that on a daily basis Thompson, an
AT&T supervisor, was present in the morning in the ECS of-
fice, that he looked over the timecards, that he made some
work assignments to ECS employees on a more or less daily
basis as cleaning problems came up and Chessman was not
in the area. There were other occasions when Thompson told
Chessman to increase or decrease the number of ECS em-
ployees performing various tasks in different locations of the
building.14
Analysis and Conclusions
The central issue in this case is whether AT&T and ECS
are joint employers.
The Board has held that one employer is a joint employer
with another employer when the employers share or codeter-
mine matters governing the essential terms and conditions of
employment of the other employer’s employees. Clinton’s
Ditch Co., 274 NLRB 728 fn. 3 (1985). The Board agreed
with the administrative law judge that where an employer
sought to be named as a joint employer, participates in the
collective-bargaining process of the other employer’s em-
ployees, or is involved directly or indirectly in the wages or
other terms of employment such participation in negotiations
and control, direct or indirect, is sufficient to establish a joint
employer relationship. Id. at 738, 739. Similarly, the Board
has held that where an employer has demonstrated authority
to determine labor relations policies and terms and conditions
of employment of the employees of another employer then
it is a joint employer with such other employer. Pulitzer
Publishing Co., 242 NLRB 35, 36 (1979). In Pulitzer such
authority was found to exist based on a finding that during
the final negotiating session between the union and
Berberich, Pulitzer’s director of labor relations, negotiated
with representatives of the union on those issues which were
holding up a final agreement, the most important of which
was a productivity bonus for Berberich’s employees.
The credited facts in this case concerning the Giblin De-
cember 1985 meeting with AT&T’s representative Stomski
establishes that the Union dealt strictly with AT&T to estab-
lish whether the shop was to be a union shop and if so what
the pay rates were to be. After such agreement was reached
a contract would be prepared and ECS would sign it. There
were no negotiations with ECS. During this meeting,
Stomski stated he wanted to staff Tower One with Larkin as
the mechanical contractor and ECS as the cleaning contrac-
tor. Stomski initially told Giblin that the Union could rep-
resent Larkin’s employees, but at a lower labor rate than the
Union’s current area standard. However, he wanted ECS to
be nonunion. When Giblin insisted that the cleaning service
contract must be Union, Stomski agreed but insisted that
there would have to be a rollback in the rate. Giblin agreed
providing there was a catchup when the next agreement
would be negotiated. It was ultimately agreed that Giblin
would come up with some numbers for both Larkin and ECS
which would reflect their agreement. Ultimately, such num-
bers were agreed on and collective-bargaining agreements
were executed between the Union and Larkin and ECS.
However, there was no negotiation between the Union and
the contractors. All negotiations were between Union Rep-
resentative Giblin and AT&T Representative Stomski. There
was no catchup provisions provided for in the agreements.
The facts further establish that all prior agreements be-
tween the Union and the mechanical and cleaning contractors
performing work for AT&T were always negotiated in the
same manner from the late 1960s when AT&T first began
operating out of New Jersey to date. The negotiations as to
the rates contained in the service contracts ultimately exe-
cuted between the service contractor and the Union were ne-
gotiated entirely between AT&T and the Union. AT&T
would then release the agreed-upon labor rates to the me-
chanical and cleaning contractors bidding on the job and se-
lect the low bidder who would then execute without negotia-
tion, the collective-bargaining agreements prepared for them
with the rates agreed on with AT&T.
Accordingly, I conclude that based on AT&T’s negotiation
for the essential labor rates at the 1986–1989 collective-bar-
gaining agreement between ECS and the Union, AT&T was
a joint employer with ECS.
The General Counsel contends that AT&T exercised such
control over the day-to-day operations of ECS employees at
its Tower One facility that by such control a joint employer
relationship was established. In this connection it was estab-
lished that all hiring, firing, and discipline of ECS’s employ-
ees was handled exclusively by ECS supervisors. In addition,
ECS supervisors also made most of the daily work assign-
ments. However, there were occasions on a daily basis that
AT&T Supervisor Thompson also made work assignments.
In addition there were other occasions when he would in-
crease or decrease the number of ECS employees assigned
by an ECS supervisor to perform a given cleaning task.
Thompson was also present on a daily basis in the ECS of-
fice and looked over the timecards of ECS employees.
The Board has held that when one employer exercises ex-
tensive control over another employer’s employees, a joint
employer relationship is established. W. W. Grainger, Inc.,
286 NLRB 94, 96 (1987). However the facts in Grainger,
236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
are clearly distinguishable from the facts of the instant case.
In Grainger, the employer exercised complete and exclusive
control over the other employer’s employees’ daily work ac-
tivities. Further, such control extended beyond the day-to-day
direction of employees and included such matters as effec-
tively recommending discipline, evaluating the work per-
formance of employees, determinating vacation time, and the
right to require removal of employees.
It is clear the control exercised over ECS employees by
AT&T falls far short of that exercised by Grainger, and in
my opinion far short of the type of control necessary to es-
tablish a joint employer. However, since my finding of a
joint employer status between AT&T and ECS is based on
AT&T’s collective-bargaining relationship with the Union, I
conclude that its limited supervision of ECS employees and
presence in ECS’ office simply reinforces my conclusion of
the joint employer relationship between AT&T and ECS.
It may be contended by AT&T that during the December
1985 period, Stomski had no authority to bargain or select
contractors for AT&T. I find such contention without merit.
The lease between Tower and AT&T gave AT&T the exclu-
sive right to select the cleaning and mechanical contractors
for Tower One. Moreover, Stomski was an important AT&T
official with broad authority and responsibilities concerning
the selection of contractors and engaging in collective-bar-
gaining negotiations with labor organizations, particularly the
Union throughout all of AT&T’s New Jersey facilities.
Therefore, I conclude that at all times material, including the
December 1985 meeting, Stomski had actual, or at the very
least, apparent authority to bargain with the Union and select
or effectively recommend the selection of contractors for
AT&T at Tower One.
Both AT&T and Tower contend that it was Tower which
had the authority to select the mechanical and cleaning con-
tractors at the Tower One facility, and not AT&T. In this
connection, the lease between Tower and AT&T for the
Tower One facility clearly and unequivocally vested sole and
complete authority in AT&T, the tenant of Tower One, to se-
lect such contractors. I conclude the terms of such legal in-
strument binding. Clearly the Union had a right to rely on
the terms of the lease agreement. Moreover, its initial deal-
ings concerning obtaining an agreement to select union
cleaning and mechanical contractors were with Stomski, an
AT&T official with whom the Union had other similar deal-
ings with at other AT&T facilities in New Jersey. In any
event, nobody from AT&T or Tower ever informed the
Union that AT&T did not have authority to select contractors
and negotiate with the Union as they had always done in the
past, or that contrary to the specific terms of the lease be-
tween AT&T and Tower, AT&T had surrendered its right to
select such contractors. Therefore, I conclude that any deci-
sion by AT&T as tenant to delegate its powers to Tower (of
which AT&T was an equal partner) and specifically to
Herzog, an agent of Tower, amounted to a decision to select
Tower and Herzog as its agent. This is a basic principal of
agency. Restatement, 2d Agency § 1. Moreover, AT&T was
an equal partner with the Landis group in Tower and any at-
tempt by AT&T, the tenant in Tower One, to separate itself
from the actions of Tower, of which it is an equal partner,
amounts to no more than a shabby attempt by AT&T, the
tenant, to escape responsibility for its actions by attempting
to shield itself behind its partnership.
Having concluded that AT&T and ECS are joint employ-
ers, the next issue to be resolved is whether AT&T was re-
quired to bargain with the Union concerning its decision to
replace ECS as its cleaning contractor at the Tower One fa-
cility. There is no dispute that at the time the ECS agreement
with AT&T expired, the Union was the collective-bargaining
representative of ECS’ employees.
The Board has held that an employer violates Section
8(a)(5) of the Act by failing to bargain with a union concern-
ing a decision to subcontract out work. In Otis Elevator Co.,
269 NLRB 891 (1984), The Board interpreted the Supreme
Court’s decision in First National Maintenance Corp. v.
NLRB, 452 U.S. 666 (1981), as follows: ‘‘The critical factor
to determine whether the decision is subject to mandatory
bargaining is the essence of the decision itself, i.e., whether
it turns upon a change in the nature or direction of the busi-
ness, or turns upon labor costs; not its effect on employees
nor a unions ability to offer alternatives.’’ The Board also
held that included within Section 8(d) of the Act are all deci-
sions which turn on a reduction of labor costs. See also Du-
buque Packing Co., 303 NLRB 386 (1991) (which involved
a decision to relocate rather then to subcontract). The Board
has also held such obligation extends to a joint employees
situation similar to the instant case. W. W. Grainger, Inc.,
supra; Clinton’s Ditch Co., supra; and Sunmaid Growers of
California, 239 NLRB 346 (1978).
The facts of the instant case conclusively establish that
ECS was terminated by AT&T exclusively because in
AT&T’s opinion the labor rates proposed by the Union were
too high. This is evidenced by Mannix’s credible testimony
that in 1989 when he presented the Union’s proposed rates
to Herzog, he was told by Herzog that such rates were unac-
ceptable. When Giblin was so informed by Mannix he at-
tempted to contact Stomski but when unable to do so con-
tacted AT&T Representative O’Brien who confirmed that the
Union’s proposed rates were too high. Later, on or about
March 13, 1989, Pierson, an AT&T representative, spoke
with Giblin concerning the rates proposed by the Union.
Giblin indicated he was flexible on the rates and suggested
the possibility of extending the ECS contract on a month-to-
month basis, but AT&T was unwilling to do so.
Accordingly, I conclude that AT&T by replacing ECS
with Thru State failed to bargain with the Union concerning
its decision to discontinue ECS in violation of Section
8(a)(5) of the Act. Moreover, since the decision to dis-
continue the services of ECS was clearly motivated by the
labor rate demands of the Union, I further conclude that the
resulting termination of the ECS employees is violative of
Section 8(a)(3) of the Act. In view of my finding that AT&T
and ECS are joint employers, I also conclude that AT&T and
ECS, joint employers, violated Section 8(a)(1), (3), and (5)
of the Act.
Counsel for the General Counsel contends that during the
December 1985 meeting, Stomski agreed with the Union to
provide for a catchup in the rates in the succeeding 1989 col-
lective-bargaining agreement equal to those of employees
covered by contracts between the Union and cleaning con-
tractors at AT&T facilities in the Piscataway area, in ex-
change for the rollbacks agreed to for the 1986 agreement.
However, the specific terms of such catchup were never
agreed on, nor was such catchup agreement included in the
written 1986–1989 collective-bargaining agreement ulti-
237EXECUTIVE CLEANING SERVICES
mately executed between ECS and the Union. The Board
does not permit evidence of an oral agreement to vary the
terms of a written agreement, NDK Corp., 278 NLRB 1035
(1986). Accordingly, I conclude there is insufficient evidence
to establish the existence of a catchup agreement to be con-
tained in any future collective-bargaining agreement executed
between the Union and AT&T as a joint employer with ECS.
The credible testimony of ECS employees Neyor and
Kamara clearly establishes that Mannix, in an attempt to
maintain its cleaning contract with AT&T, solicited its em-
ployees to sign a petition authorizing the filing of a petition
to decertify the Union. Such testimony is corroborated by
Mannix’s February 20, 1989 letter to Herzog stating his deci-
sion to sever his relationship with the Union. I conclude such
solicitation is violative of Section 8(a)(1) of the Act. Yellow-
stone Plumbing, 286 NLRB 993, 1002 (1987). Since I have
concluded that AT&T and ECS are joint employers, I con-
clude that AT&T and ECS violated Section 8(a)(1) by un-
lawfully soliciting a decertification petition.
The credible testimony of Union Representative McQuire
establishes that on February 28, immediately after being in-
formed of Mannix’s attempt to solicit a decertification peti-
tion, he visited the Tower One facility and after complying
with the appropriate procedures of signing in and obtaining
a visitor’s badge, attempted to meet with Mannix to discuss
his attempt to decertify the Union. He so informed ECS Rep-
resentative Chessman of such intention. Chessmen left and
contacted AT&T Representative Thompson who confronted
McQuire and told him he had to leave, notwithstanding
McQuire’s insistence that he had followed the proper proce-
dure for visitation and had a right to be present. I conclude
that given ECS’ and AT&T’s knowledge of the purpose of
McQuire’s visit and their concern that he might cause labor
problems they asked him to leave, notwithstanding his com-
pliance with visitation procedures and his legitimate union
purpose for such visit. I further conclude that by such action
AT&T and ECS as a joint employer violated Section 8(a)(1),
Walton Mfg. Co., 126 NLRB 697 (1960).
It is not disputed that Thru State recognized and signed a
collective-bargaining agreement with Local 734 on March
31, 1989, at a time when it employed no employees to serv-
ice Tower One. Thru State employees began servicing Tower
One on April 1, but did not sign Local 734 authorization
cards until April 5. I conclude that such conduct by Thru
State constitutes unlawful assistance in violation of Section
8(a)(1) and (2) of the Act.
CONCLUSIONS OF LAW
1. AT&T is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. ECS is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
3. At all times material, AT&T and ECS are joint employ-
ers of the employees of ECS.
4. Thru State is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
5. The Union and Local 734 are labor organizations within
the meaning of Section 2(5) of the Act.
6. At all times material, the following unit of employees
constitutes a unit appropriate for bargaining within the mean-
ing of Section 9(b) of the Act:
All custodial maintenance employees and related cat-
egories of employees employed by ECS at AT&T’s
Tower One facility.
7. AT&T and ECS, as joint employers, failed and refused
to bargain collectively with the Union concerning the deci-
sion to discontinue the services of the employees described
above in paragraph 6 of this section within the meaning of
Section 8(a)(1) and (5) and Section 8(d) of the Act.
8. AT&T and ECS, as joint employers, discriminated and
terminated the employees described and set forth in para-
graph 6 of this section, because of the rates of pay and other
terms and conditions of employment proposed by the Union
in collective-bargaining negotiations with the joint employer,
in violation of Section 8(a)(1) and (3) of the Act.
9. AT&T and ECS, as joint employers, initiated, encour-
aged, and circulated a petition among the employees set forth
and described in paragraph 6 of this section, seeking to de-
certify the Union in violation of Section 8(a)(1) of the Act.
10. AT&T and ECS, as joint employers, prevented and
evicted a union representative from meeting representatives
of ECS and the employees set forth and described above in
paragraph 6 of this section, at AT&T’s Tower One facility
in furtherance of their unlawful activities described above in
paragraph 9 of this section.
11. Thru State unlawfully assisted Local 734 by granting
recognition and executing a collective-bargaining agreement
with Local 734 covering its service employees performing
cleaning services for AT&T at its Tower One facility, not-
withstanding that Local 734 did not represent a majority of
such employees, in violation of Section 8(a)(1) and (2) of the
Act.
REMEDY
As the Supreme Court observed ‘‘our task in applying
Section 10(c) is to take measures designed to recreate the re-
lationships that would have been had there been no unfair
labor practice.’’ Franks v. Bowman Transportation, 424 U.S.
747, 769 (1975). Therefore, I conclude that ordering Re-
spondents AT&T and ECS, as joint employers, to bargain
with the Union concerning the decision to intimate ECS with
the resultant layoff of its employees performing work at Re-
spondent AT&T’s Tower One facility and to reinstate such
employees with backpay, constitutes the appropriate remedy
for such decision bargaining violation Lapeer Foundry &
Machine, 289 NLRB 952, 955 (1988). The joint employer’s
backpay liability shall run from the date of the layoffs until
the date the employees are reinstated to their same or sub-
stantially equivalent positions or have secured equivalent po-
sitions of employment elsewhere. Backpay shall be based on
the earnings the employees would have received during the
applicable period less any interim earnings computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987). Re-
spondents AT&T and ECS, a joint employer, shall also be
ordered to bargain with the Union concerning the decision to
terminate the services of ECS at the Tower One facility caus-
ing the layoff of its employees, and the effects of that deci-
sion, Lapeer Foundry & Machine, supra.
I shall also recommend that Respondent Thru State be or-
dered to withdraw and withhold recognition from Local 174
238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as the collective-bargaining representative of its employees at
the Tower One facility unless a free and uncoerced majority
of Respondent Thru State’s employees, within an appropriate
unit designate Local 174 as their representative. I shall fur-
ther recommend that Respondent Thru State reimburse its
employees assigned to work at Tower One for any dues, ini-
tiation fees, or other moneys deducted from their wages and
paid to Local 174 pursuant to the collective-bargaining
agreement between Thru State and Local 174 covering its
employees at Tower One, together with interest as computed
above.
[Recommended Order omitted from publication.]