Trane Puerto Rico, Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 15, 2015

12-CA-144599 (N.L.R.B. Oct. 15, 2015)

JD–58–15
San Juan, PR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TRANE PUERTO RICO, INC.
and Case 12-CA-144599
CONGRESO DE UNIONES
INDUSTRIALES DE PUERTO RICO
Nicole Lancia, Esq.,
for the General Counsel
Vanessa I. Marzan-Hernandez, Esq.,
Schuster Usera & Aguilo, LLP
for the Respondent.
Jose A. Figueroa, Union President
Congreso De Uniones Industriales
De Puerto Rico,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This case was submitted to
me by virtue of a Joint Motion and Stipulation of Facts, pursuant to Section 102.35(a)(9)
of the Board’s Rules and Regulations, and an Order issued by Associate Chief Judge
William Cates accepting the stipulation. The stipulation includes references to 32 joint
exhibits, as well as General Counsel’s Exhibit 1, the formal papers in this case.1
The complaint, as amended, alleges that Respondent violated Section 8(a)(5)
and (1), as well as Section 8(d) of the Act, by bypassing the Charging Party Union
(hereafter the Union) and dealing directly with the employees, whom the Union
represents and are covered under a collective bargaining agreement between the Union
and Respondent, in the following manner: Soliciting the employees to sign authorization
forms that allowed Respondent to access employee driving records from the Puerto

1 The joint exhibits contain both a Spanish version (subsection (a) of the numbered exhibit); and an
English version (subsection (b) of the exhibit).
JD–58–15
2
Rico Department of Transportation; and soliciting employees to obtain copies of their
records and submit them to Respondent so they could be considered in disciplinary
proceedings. Such conduct was undertaken, according to the complaint, without prior
notice to the Union and without affording it the opportunity to bargain with respect to the
Respondent’s conduct and its effects.5
The complaint also alleges that Respondent violated Section 8(a)(5) and (1) and
Section 8(d) of the Act by implementing, maintaining and enforcing a new Vehicle Fleet
Policy that changed existing terms and conditions of employment of unit employees
embodied in the applicable collective bargaining agreement, including new limits on the 10
personal use of Respondent’s vehicles by employees and a new disciplinary policy that
resulted in the discipline of a particular employee, Pedro Sanchez, all without the
Union’s consent.
Respondent filed an answer denying the essential allegations in the complaint. 15
Both Respondent and the General Counsel submitted briefs, which I have read and
considered.
Based on the stipulated record, as well as briefs submitted by the parties, I make
the following20
FINDINGS OF FACT
I. JURISDICTION
25
Respondent, a limited liability Delaware Corporation with an office and place of
business located in San Juan, Puerto Rico, is engaged in the sale and service of air
conditioning systems for commercial and residential customers. During a
representative one-year period, Respondent purchased and received, at its San Juan
facility, goods valued in excess of $50,000 directly from outside the Commonwealth of 30
Puerto Rico. I therefore find, as admitted by Respondent, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
I further find, as Respondent also admits, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.35
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
40
Background
Since on or about June 4, 1981, the Respondent has recognized the Union as
the exclusive bargaining representative of the following appropriate unit of employees:
45
All service and maintenance employees employed by [Respondent] at its
San Juan, Puerto Rico facility, excluding all office and clerical employees,
JD–58–15
3
professional personnel, senior service technicians, guards and supervisors,
as defined in the Act.
Such recognition has been embodied in successive collective bargaining agreements,
the most recent of which is effective by its terms from October 1, 2012 to September 30, 5
2016. Since January 1, 2015, the above bargaining unit has consisted of approximately
25 employees, comprised of service and controls employees and warehouse
employees, whose duties include driving Respondent’s vehicles.
The current collective bargaining agreement includes the following provisions10
that are relevant to this case:
Article 35
Article 35, entitled “Company Vehicles,” sets forth rules governing use of 15
Respondent’s vehicles by employees for company-related work and “to transport
themselves to and from home and jobsites.” Among the rules describing employee
responsibilities is one stating that the “employee agrees to drive the unit properly,
following all Puerto Rican traffic laws (emphasis in original).” Employees are
responsible for “paying any fine for violating Puerto Rican traffic laws” and agree to 20
“maintain a current driver’s license, pursuant to Puerto Rican traffic laws.”
Article 20
Article 20, entitled “Termination and Discipline,” provides that Respondent may 25
“post reasonable rules and regulations, which . . . are essential to [Respondent’s] good
working order.” The article also states that, “as long as it does not act unreasonably or
arbitrarily, [Respondent] may discipline, suspend or terminate any employee, who . . .
does not meet the set rules.” It also states that, if the Union disagrees with an action
taken by Respondent, it may “make an appeal” under the contractual grievance and 30
arbitration proceeding.
Article 2
Article 2, entitled, “Administration Rights,” amounts to what is known as a 35
management rights clause. Section 1 of the article states as follows:
The Union recognizes the [Respondent’s] exclusive
right to supervise, administrate and direct its maintenance
and service business operations, unless previously 40
negotiated limitations in the agreement are established,
which shall be mandatory for the parties, said administration
rights being stated in this agreement, including but not limited
to: the direction of the work force, hiring, re-hiring, assigning,
transferring, promoting, laying off, relocating, suspending, 45
terminating and disciplining employees; determining the
number of employees in any department, shift or classification;
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4
determining the number and size of the departments; establishing,
revising, suspending and imposing the work schedule, rules and
regulations, determining operations, distributing said services;
determining the service activities to be conducted, the workplace
(including methods, processes, production and distribution 5
methods of said items, directing said activities), and determining
the quality and production levels.
Section 2 of the article provides that the “Union may use the grievance and
arbitration provisions of the agreement “whenever it feels that [Respondent] has 10
exceeded the use of management rights recognized in this article.”
Article 38
Article 38, entitled, “Overall Agreement,” amounts to what is known as a zipper 15
clause. Section 1 of the article states as follows:
No subject or matter stated or indicated in this agreement,
or which has not been specifically stated or indicated, or that
has been omitted, shall be subject to collective bargaining 20
during the term covered by this agreement, except as a
result of a mutual agreement from the parties, even though
said subjects or matters have not been made known or have
been considered by one or both parties at the time of the
negotiations or at the time this agreement was signed.25
Section 2 of Article 38 states as follows: “No agreement, alteration or
understanding that varies, nullifies or modifies any of the terms and conditions stated
here, shall be mandatory for the parties, unless it is placed in writing between them.”
30
Applicable Employee Manual
Respondent maintains an Employee Manual, the most recent version of which
was revised on December 10, 2012 and superseded all prior versions of the manual.
The 2012 Employee Manual (Jt. Exh. 4) contains policies and procedures related to the 35
use of company vehicles and other matters related to company vehicles. The Manual is
“applied concurrently with the collective bargaining agreement in those areas that are
not inconsistent with the terms and provisions of the collective bargaining agreement.”
Stipulation no. 5.
40
The New Fleet Vehicle Policy
On September 16, 2013, Respondent learned from its parent company, Ingersoll
Rand, that it had to comply with Ingersoll Rand’s already-existing Fleet Vehicle Policy,
including specific provisions regarding Motor Vehicle Reports (MVRs). Respondent’s 45
officials modified the policy originally received from Ingersoll Rand in an effort to
JD–58–15
5
“temper it” to local laws and the existing collective bargaining agreement between the
Respondent and the Union.
On October 15, 2014, Respondent’s human resources manager, Sandra
Angueira, sent an email to Union President Jose Alberto Figueroa offering dates to 5
meet and discuss several issues, including the policies and procedures related to the
Fleet Vehicle Policy. Figueroa agreed to meet on October 28, 2014.
On October 27, 2014, Angueira sent an email to Figueroa, attaching a letter
describing Respondent’s new Fleet Vehicle Policy and a copy of the policy itself. The 10
letter states that the new policy is in accord with the requirements of Ingersoll Rand and
would apply to all unit employees that use Respondent’s vehicles. The letter also states
that Respondent intends to implement the policy on January 31, 2015, after bargaining
with the Union. It suggests several specific dates for negotiations in November 2014.
15
On October 28, 2014, Angueira and Respondent’s Attorney, Anabel Rodriguez,
met with Figueroa, as well as Alexander Soto and Victor Vega, who are not only
delegates of the Union but also employees of Respondent. At the meeting, Angueira
repeated the substance of the October 27 letter concerning the new policy, including its
intended implementation date, Respondent’s revision of the corporate policy to make it 20
consistent with the existing collective bargaining agreement, and Respondent’s desire
to bargain over the new policy and its effects. At the meeting, Figueroa told Angueira
and Rodriguez that the Union would provide Respondent with a written response to the
Respondent’s proposal.
25
On November 6, 2014, Respondent sent an email response to Respondent,
stating the Union’s position as follows: “[T]he policy and the law between the parties are
contained in the Collective Bargaining Agreement. It was negotiated like this between
the parties. Therefore, we do not agree to renegotiate.”
30
In an email response to Figueroa, dated November 12, 2014, Angueira attached
a letter setting forth Respondent’s position. The letter stated that the new policy
includes matters that are not covered in Article 35 of the existing agreement. It listed
several of those matters, including the installation of a Global Positioning System (GPS)
in its vehicles, the establishment of a procedure to obtain the MVRs of employees and 35
the tracking of those records, as well as a point system for possible traffic infractions
that might result in employee discipline. It also listed establishment of a training
program for employee compliance with the new policy and other safety measures.
In another email with letter attached, dated November 19, Angueira told Figueroa 40
she had not yet received a response from Figueroa to her communication from the
week before and suggested new dates for bargaining, including several dates in
December. Figueroa responded in an email to Angueira, dated November 21, 2014,
stating as follows:
45
The request to reopen the Agreement to negotiate article 35 is not accepted
by the Union. The article can be negotiated when the time comes in 2016.
JD–58–15
6
Article 38 of the agreement clearly establishes that your request has to be
agreed between the parties. Therefore, the Union has been clear from the
beginning regarding this issue. If the Company insists on implementing a
policy on vehicles, I will have no other recourse than to file a charge with the
National Labor Relations Board.5
On December 4, 2014, Rodriguez emailed Figueroa restating Respondent’s
disagreement with the Union’s position and restating its position that certain matters in
the new policy were not covered under the collective bargaining agreement.
Respondent also restated its request for bargaining on several dates in December.10
The parties agreed to meet, and did meet, on December 16, 2014, but no
progress was made and each party adhered to the positions earlier expressed. In an
email from Rodriguez to Figueroa, dated the same day, she summarized the positions
of the parties and restated the Respondent’s position that topics in the new policy were 15
not covered in the bargaining agreement. She also asserted that “management rights
empowered [Respondent] to adopt the necessary rules and measures to manage its
labor force.”
There were no further communications between the parties until January 13, 20
2015, at which time Figueroa sent Rodriguez an email response to her email of
December 16. In that response, Figueroa restated the Union’s position, as set forth in
his November 21 email to Angueira, and said he would file a charge with the Labor
Board.
25
On February 1, 2015, Respondent implemented the new Fleet Vehicle Policy it
had proposed to the Union and began applying it to the bargaining unit employees. The
policy is set forth in Jt. Exh. 17, which is summarized below.
The 18-page Fleet Vehicle Policy states that it will apply “concurrently” with “what 30
is provided in the employee manual and the collective bargaining agreement.” It
describes employee responsibilities when driving Respondent’s vehicles in some detail.
For example, the policy prohibits personal use of company vehicles, with no specified
exception, in contrast with Article 35 of the collective bargaining agreement, for
employees to transport themselves “from their home to the job sites.” In addition, the 35
new policy requires that all authorized drivers “give permission” to Respondent “to
access initial and periodic reports from the Department of Motor Vehicles.” If
permission is not given, the Respondent may cancel the employee’s authorization to
drive company vehicles and invoke “disciplinary actions including termination.”
40
The policy also provides for a system of points “to weigh risks regarding the
eligibility criteria from the record of the driver.” These points are not necessarily the
same points utilized by state or other jurisdictions governing drivers’ licenses.
Respondent is permitted to review an employee’s driving record annually to apply its
own point system, determine driver eligibility, and, based on its review, revoke the 45
employee’s driving privilege. Respondent’s point system results in the categorization of
drivers into certain levels. Drivers at level II are required to take additional safety
JD–58–15
7
training; those at level III may lose their authorization to drive, at least during a pending
investigation. The policy sets forth detailed examples of “unacceptable driving
performance,” that may result in revocation of authorization to drive, discipline, including
termination, and reimbursement for losses because of serious or intentional negligence.
5
Training of Employees on the New Policy
On February 4, 6, and 18, 2015, Respondent held training sessions on the new
Fleet Vehicle Policy for its employees, including the bargaining unit employees
represented by the Union. During the training sessions, Angueria explained the new 10
policy. She said that, if Respondent received notification of proposed disciplinary action
from its Fleet Services Department, employees would have to provide Respondent with
a copy of their MVR so that Respondent could “compare the information contained in
the employee’s MVR with the report prepared by its Fleet Services Department.”
Respondent did not inform the Union of the dates on which it would be holding those 15
training sessions and no Union officers were invited to, or were present at, these
training sessions, although, as indicated, Respondent had notified the Union of the
implementation date of the policy and shared a copy of the policy with the Union.
During the above training sessions, Respondent distributed copies of the Fleet 20
Vehicle Policy to the employees, as well as a document explaining the “driver risk level
points system” that was part of the Fleet Vehicle Policy, and a document explaining the
traffic points system promulgated by the Puerto Rico Department of Transportation. At
these training sessions, Human Resources Manager Angueira mentioned that the new
policy would be effective as of February 1, 2015. She also reviewed aspects of the new 25
policy, including a comparison of the Puerto Rico Department of Transportation MVR
structure with the Ingersoll Rand MVR disciplinary structure. She further stated that, if
Respondent received any notification of proposed disciplinary action from Respondent’s
Fleet Services Department, employees would have to provide Respondent with a copy
of their MVRs so that Respondent could compare the information contained in the 30
employee’s MVR with the report prepared by its Fleet Services Department. Unit
employees were required to sign an acknowledgement form that they had received a
copy of the new policy.
Respondent Secures Authorizations to Obtain Employee Driving Records35
Beginning in May 2013 and continuing through August 2015, Respondent
requested and obtained signed electronic forms from unit employees authorizing
Respondent to access their Motor Vehicle Records (MVRs). Most of the authorizations
were secured in September and October 2014. The employees who signed these forms 40
were not new hires and Respondent did not communicate to the Union that it intended
to request that employees sign these forms.
45
JD–58–15
8
The Discipline of Employee Pedro Sanchez
On March 2, 2015, Respondent issued a disciplinary warning to unit employee
Pedro Sanchez, pursuant to the new Fleet Vehicle policy. Sanchez was presented a
letter by his supervisor that stated Sanchez had reached Level III driving status under 5
the new policy and directing that Sanchez complete a series of actions as result. For
example, Sanchez was required to provide a copy of his MVR every 3 months for the
next year, agree to certain safety policies, complete driver education programs and
notify Respondent of any changes in his driving privileges. Sanchez was required to
sign a copy of the letter. J. Exh. 22(a). See also Stipulation nos. 24-28.10
Sanchez filed a grievance contesting the disciplinary action under the current
collective bargaining agreement. The grievance went through step 2 of the contractual
grievance procedure with a denial by Respondent. On April 21, 2015, the Union filed a
grievance concerning Sanchez’s discipline before the Puerto Rico Department of Labor, 15
Conciliation and Arbitration Bureau. The parties selected an arbitrator, but, at the time
of the stipulation, no notice of hearing on the matter had issued. The parties have
stipulated that, to date, the above discipline of Sanchez is the only discipline
Respondent has issued to any unit employee for “having too many points on his driver’s
license, based on the 2015 Fleet Vehicle Policy.” Stipulation no. 29.20
B. Discussion and Analysis
General Principles
25
An employer’s duty to bargain is set forth in Section 8(a)(5) and 8(d) of the Act.
An employer violates Section 8(a)(5) and (1) of the Act by unilaterally changing the
wages, hours or other terms and conditions of employment of represented employees—
mandatory subjects of bargaining—without first providing their exclusive bargaining
representative with notice and meaningful opportunity to bargain about the change. 30
NLRB v. Katz, 369 U.S. 736 (1962). Mandatory subjects include those matters that are
“plainly germane to the ‘working environment’” and “not among those ‘managerial
decisions, which lie at the core of entrepreneurial control.’” Ford Motor Co. v. NLRB,
441 U.S. 488, 498 (1979).
35
It is well settled that an employer violates Section 8(a)(5) and (1) if it bypasses
the union representing its employees and instead deals with them directly on mandatory
subjects. Direct dealing by its very nature undermines employee confidence in the
effectiveness of their bargaining representative. Gene’s Bus Co., 357 NLRB No. 85,
slip op. 5 (2011). And, as the Supreme Court has stated, a union’s status as exclusive 40
bargaining representative exacts a “negative duty” to “treat with no other.” Medo Photo
Supply Corp. v. NLRB, 321 U.S. 678, 684 (1944). In El Paso Electric Co., 355 NLRB
No. 95, slip op. 2 (2010), the Board, citing relevant authorities, restated the established
criteria for finding that an employer has engaged in unlawful direct dealing. Those
criteria are as follows:45
(1) that the [employer] was communicating with union-represented employees;
JD–58–15
9
(2) the discussion was for the purpose of establishing or changing wages, hours
and terms and conditions of employment or undercutting the union’s role in
bargaining; and (3) such communication was made to the exclusion of the union.
5
Under Section 8(d), it is also clear that, once an agreement is struck, an
employer may not change terms and conditions of employment that are governed by a
collective bargaining agreement during the term of that agreement, absent the consent
of the union representing the employees. An employer who does so violates Section
8(a)(5) and (1) of the Act. See C&S Industries, Inc., 158 NLRB 454, 456-459 (1966); 10
and Mead Corp., 318 NLRB 201, 202 (1995). In such cases, the gravamen of the
violation is contract modification. Thus, the General Counsel must show that there is a
contract provision that the employer has modified. An employer’s defense is either that
the union has consented to the change or that its view of the contract had a “sound
arguable basis,” demonstrating that there was in fact no unlawful modification of the 15
contract. Bath Iron Works Corp., 345 NLRB 499, 501-502 (2005), affirmed, sub nom.,
Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007). See also San
Juan Bautista Medical Center, 356 NLRB No. 102, slip op. 3 (2011); and American
Electric Power, 362 NLRB No. 92 (2015).
20
In interpreting collective bargaining agreements in connection with unfair labor
practice determinations, the actual intent of the parties is given controlling weight. To
determine the parties’ intent, the Board looks first to the language of the contract, then
to relevant extrinsic evidence, such as past practice or bargaining history. Mining
Specialists, 314 NLRB 268, 268-269 (1994). Moreover “when evaluating whether a 25
contract provision privileges one party to act unilaterally and without the other party’s
consent,” the Board “adheres to a strict standard.” Chemical Solvents, Inc., 362 NLRB
No. 164, slip op. at 6 (2015).
Respondent Has Violated the Act30
Applying the above principles to the facts in this case, I find that Respondent
unilaterally, and without the Union’s consent, modified the existing bargaining
agreement by rescinding the right of employees to use company vehicles to transport
themselves to and from their homes and job sites, by requiring employees to give 35
permission for Respondent to access their driving records, and by imposing on
employees a disciplinary point system that impacted their ability to drive company
vehicles and their job tenure. I also find that the Respondent engaged in unlawful direct
dealing with employees thus bypassing the Union, by soliciting authorizations from
employees for it to secure their driving records from the Department of Motor Vehicles40
and by requiring them to submit those records to Respondent, without giving the Union
prior notice and opportunity to bargain on those matters. Respondent’s conduct in
these respects violated Section 8(a)(5) and (1) of the Act.
Respondent’s new Fleet Vehicle Policy that was implemented mid-contract and 45
without the consent of the Union clearly modified the existing collective bargaining
agreement. First of all, it negated the explicit provision in Article 35 of the existing
JD–58–15
10
contract permitting employees to use company vehicles to transport themselves from
their jobsites to their homes and back again. Instead, the new policy lists uses of
company vehicles that do not include the contractual right of employees to transport
themselves to and from their homes and jobsites.2
5
In addition, the Fleet Vehicle Policy sets forth new rules governing use of
company vehicles, including a new and elaborate point system by which Respondent
may evaluate employee driving records resulting in penalties that include loss of driving
privileges, discipline and termination. Nothing in Article 35 that governs use of company
vehicles contains such a disciplinary point system and penalties or gives Respondent 10
the unilateral right to impose such a system with penalties. Nor does Article 35 say
anything about the provision in the new policy that permits Respondent to obtain
employee authorization to secure driving records in order to monitor and enforce the
new disciplinary point system. In these respects, Respondent’s new policy also
modifies the existing contract and its regulation of use of company vehicles. Indeed, in 15
its answer to this complaint, Respondent admitted that its Fleet Vehicle Policy “includes
aspects that are not, and have never been part of the parties’ collective bargaining
agreement and/or their bargaining history.” G.C. Exh. 1(i). Thus, implementation of the
new Fleet Vehicle Policy was an unlawful contract modification under Section 8(d) of the
Act and an unfair labor practice under Section 8(a)(5) and (1) of the Act.20
Respondent’s attempt to defend its modification of the existing contract is without
merit. It has not shown that it had a “sound arguable basis” in the bargaining
agreement for implementing the new Fleet Vehicle Policy. In its initial communications
with the Union on this issue, Respondent in effect conceded that it had no contractual 25
basis for implementing the new policy without the Union’s approval. It repeatedly asked
the Union to bargain over the matter. It was only after the Union refused to consent to
any changes in the existing agreement or to reopen bargaining in the middle of the
contract that Respondent attempted to rely on contract language to justify the changes.
Respondent first took the position that nothing in Article 35 covered the new policy, 30
which was not accurate because, as discussed above, the new policy clearly negated
the provision in Article 35 that permitted employees to use company vehicles to
transport themselves between their homes and jobsites; and it also added an elaborate
point system governing discipline that was not present in Article 35. Later, Respondent
took the position that the management rights clause of the contract (Article 2) permitted 35
it to implement the new Fleet Vehicle Policy, because it had the right, under that clause,
to “adopt the necessary rules and measures to manage its work force.”
Neither of the Respondent’s arguments mentioned above amounts to a “sound
arguable basis” in the contract itself to justify the modifications it made by implementing 40
the new Fleet Vehicle Policy. Article 35 does not permit Respondent to take away the
right of employees to use company vehicles to transport themselves to and from their

2 Respondent’s contention (Br. 27-28) that it has “never limited the bargaining unit use of the
company vehicle for the specific circumstances described (sic) CBA” misses the mark. The new Fleet
Vehicle Policy by its terms does not permit that contract right and thus employees run the risk of
disciplinary action for using their company vehicles in accordance with the existing contract.
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11
homes and jobsites or to impose a disciplinary point system regulating the use of
company vehicles. Mere silence in Article 35 does not justify the significant changes
implemented by Respondent or provide a “sound arguable basis” for such changes.
Nor does Article 2, the management rights clause, provide such a basis for the 5
changes. Contrary to Respondent’s contention (Br. 9-11), Article 2 does not amount to
a clear and unmistakable waiver by the Union to object to contract modifications of the
sort implemented here. Respondent is correct in its assertion that general language in
a management rights clause is insufficient to create a clear and unmistakable waiver,
but it is incorrect in asserting that the clause in this case is specific enough. See 10
Rangaire Co., 309 NLRB 1043, 1052 (1992). Nothing in Article 2 refers to Article 35 or
the use of company vehicles. Although Article 2 gives Respondent “the exclusive right
to supervise, administrate and direct its maintenance and service business operations,”
that general language is itself limited by the phrase stating, “unless previously
negotiated limitations in the agreement are established.” Article 35 governing the use of 15
company vehicles is such a negotiated limitation. Moreover, the broad zipper clause in
Article 38 of the collective bargaining agreement makes it clear that not only Articles 35
and 2, but also the remainder of the collective bargaining agreement constitute all the
issues negotiated by the parties and no changes or additions may be made to anything
in the agreement without the consent of the other party. Article 38 thus unambiguously 20
precludes the changes without the Union’s consent. See Mead Corp., cited above, 318
NLRB at 202-203.3
The above makes clear that the four corners of the bargaining agreement offers
no sound basis for Respondent’s implementation of the new Fleet Vehicle Policy. Nor 25
does reference to bargaining history or past practice offer such support. Respondent
does not rely on bargaining history, about which the stipulated record is silent. But, in
an apparent attempt to show that past practice supports its position, Respondent
peppers its brief with references (see, for example, Br. 11, 25-28) to the employee
manual and its language that the manual is to be applied “concurrently” with the existing 30
bargaining agreement. Any reading of the manual, however, is limited by the terms of
the bargaining agreement. Nothing in that agreement mentions the employee manual.
And since nothing in the bargaining agreement gives Respondent the green light to
unilaterally apply the manual to unit employees, the bargaining agreement takes
precedence over the manual. Indeed, the parties stipulated that the reference to the 35
manual being applied “concurrently” with the bargaining agreement was meant to
restrict its application only to areas that are “not inconsistent with the terms and
provisions of the collective bargaining agreement.” Stipulation no. 5. Respondent
implicitly recognized this restriction when, according to the stipulation (no. 7), its officials

3 Respondent’s contends (Br. 11) that the management rights clause and Article 20, the clause
regarding termination and discipline, show that the Union “waived its right to bargain “over the
amendments to the Employee Manual and the provisions included in the Fleet Vehicle Policy.” But
neither of those provisions mentions the employee manual or Article 35, which governs the regulation of
employee use of company vehicles. And since there is no other reference to the employee manual in the
bargaining agreement, the zipper clause language in Article 38 effectively trumps Respondent’s position.
Thus, that portion of the Board’s decision in Provena St. Joseph Hospital Center, 350 NLRB 808, 815
(2007), relied on by Respondent, is clearly distinguishable from this case.
JD–58–15
12
modified the Fleet Vehicle Policy originally forwarded to them by its parent to “temper it”
to the collective bargaining agreement. This view is confirmed by the broad contractual
zipper clause in Article 38, which states that everything that could have been bargained
was reflected in the contract and bans Respondent from making changes without the
consent of the Union. Finally, it does not appear that the manual was ever used as a 5
basis for disciplining employees for improperly driving company vehicles. The
stipulation of the parties refers to only two instances of discipline of employees for that
purpose prior to implementation of the new Fleet Vehicle Policy. Both referenced Article
35 of the agreement, thus indicating that discipline for improper driving was predicated
on Article 35 and not on the employee manual. See no. 32 of the stipulation and Jt. Exh. 10
28.
Accordingly, I find that, by implementing its new Fleet Vehicle Policy without the
Union’s consent, Respondent modified the existing bargaining agreement in violation of
Section 8(a)(5) and (1), as well as 8(d), of the Act This violation includes the application 15
of the Fleet Vehicle Policy to discipline employee Pedro Sanchez. It is settled law that if
unlawfully imposed rules or policies are a factor in an employee’s discipline, that
discipline violates Section 8(a)(5) and (1). See Great Western Produce, 299 NLRB
1004, 1005 (1990).4
20
In addition, Respondent’s implementation of the provision in the new policy
permitting it to obtain authorizations or otherwise to secure employee driving records
amounted to direct dealing with employees over terms and conditions of employment—
a violation of Section 8(a)(5) and (1) of the Act, that is related to, but separate and apart
from, modification of the contract. The Fleet Vehicle Policy states that all employees25
“must give permission to the company to access initial and periodic reports from the
Department of Motor Vehicles” under penalty of losing their driving authorization and
possible disciplinary action. (Joint Exh. 17(b), p. 8, section H.). It was stipulated that
Respondent sought and obtained such authorizations from employees without first
notifying the Union and giving it an opportunity to bargain over the matter. It was also 30
stipulated that, in the February 2015 training sessions, without having notified the Union
or given it an opportunity to be present, Respondent told employees the new policy
required employees to provide a copy of their driving records in order to determine
whether disciplinary action should be taken. It is also clear that such direct dealing was
for the purpose of changing existing terms and conditions of employment since such 35
authorizations and submissions were not previously required. Nor was the Union
consulted so the direct dealing naturally undercut the Union’s role as exclusive
bargaining representative. Thus, under the criteria set forth in the El Paso Electric case,
cited above, Respondent’s direct dealing clearly violated Section 8(a)(5) and (1) of the
Act.40

4 In view of my finding on contract modification issue, I do not reach the General Counsel’s
alternative contention (Br. 25-27) that the new policy was implemented as a fait accompli. Nor do I reach
the Respondent’s defense to that contention (Br. 16-22)—that it gave the Union sufficient notice and
opportunity to bargain.
JD–58–15
13
Respondent defends its acknowledged direct dealing by asserting (Br. 28-32)
that (1) it had always had the authority to review employee driving records under its
employee manual, which, in its view, amounted to an existing term and condition of
employment; and (2) the direct dealing allegation is time-barred under Section 10(b) of
the Act. Those defenses are without merit. Respondent’s first point misses the 5
gravamen of the violation, which is soliciting and obtaining employee authorizations and
thereafter confirming this requirement in the training sessions for the new Fleet Vehicle
Policy. If, as Respondent suggests, it already had the right to obtain employee driving
records, why did it seek employee authorizations? Obviously there was a reason and
that reason was based on the implementation of the new Fleet Vehicle Policy, which 10
required access to the driving records. That policy was thus not only a contract
modification, but also a new and changed condition of employment. Moreover,
Respondent’s position is based on an erroneous reading of its employee manual that,
as shown above, must be read as being consistent with and not contradicting the
existing bargaining agreement. Nothing in the collective bargaining agreement gave the 15
Respondent the right to solicit and obtain employee authorizations to secure their
driving records. The zipper clause in Article 38 confirms that view.
Nor is the direct dealing allegation barred by Section 10(b) of the Act.
Respondent asserts that, as early as the 2012 employee manual, employees knew that 20
they had to authorize Respondent to obtain their driving records. As indicated above,
however, the employee manual may not be inconsistent with the collective bargaining
agreement; and Respondent’s effort to utilize employee driving records was a crucial
part of the new Fleet Vehicle Policy. As also indicated above, the gravamen of the
direct dealing violation here is soliciting and obtaining employee authorizations and 25
confirming during the training sessions that the authorizations were required under the
new Fleet Vehicle Policy—not whatever theoretical right Respondent had to seek and
obtain authorizations under the employee manual. Most of those authorizations were
obtained within 6 months of the filing of the original charge on January 15, 2015; others
and all of the training sessions, pursuant to the new Fleet Vehicle Policy, were dated30
before the amended charges filed on March 4 and May 1, 2015. See G.C. Exh. 1(a), (c)
and (e).5
Finally, contrary to Respondent’s contention (Br. 33), this case is not well suited
to resolution by arbitration under the standards set forth in applicable Board law. See 35
generally San Juan Bautista Medical Center, cited above, 356 NLRB No. 102, at slip op.
2. First of all, the new Fleet Vehicle Policy specifically contradicts the contractual right
of employees to use company vehicles to transport themselves between their homes
and their jobsites. On that point, there is no contract language to interpret. Nor does
anything else in the contract, including the management rights clause, justify 40
modification of Article 35 on the use of company vehicles to create a new disciplinary
point system for employees driving company vehicles. Any doubt on this score is
eliminated by reference to the broad zipper clause in Article 38. Thus, the matter here is
less about contract interpretation than about the significant alteration of the contract and

5 In reading Joint Exh. 25, I found that only 3 of the authorizations were dated outside the Section
10(b) period.
JD–58–15
14
the affront to the Union’s right under Section 8(d) to consent to mid-contract
modifications. In any event, even if the contract modification issue were viewed as
deferrable, the direct dealing issue, which is clearly statutorily based, is not. And it is
well settled that the Board will not defer a case if one issue is deferrable and another,
with which it is intertwined, is not. In those circumstances, the Board does not favor 5
“piece-meal deferral of complaint allegations.” Gene’s Bus Co., cited above, 357 NLRB
No. 85 at slip op. 6-7.
Conclusions of Law
10
1. By dealing directly with employees in soliciting their authorizations to secure
driving records from the Department of Motor Vehicles and soliciting them to
submit copies to Respondent, without giving the Union that had the exclusive
right to represent those employees notice and opportunity to bargain over the
matter, Respondent bypassed the Union and violated Section 8(a)(5) and (1) 15
of the Act.
2. By unilaterally, and without the Union’s consent, implementing its new Fleet
Vehicle Policy, thus modifying the existing collective bargaining agreement
insofar as it rescinded the right of employees to transport themselves to and
from their homes and jobsites, required employees to grant Respondent 20
permission to access their driving records, and imposed on employees a new
disciplinary point system that impacted their ability to drive company vehicles
and their job tenure, Respondent violated Section 8(a)(5) and (1) of the Act.
3. By applying its unlawfully implemented Fleet Vehicle Policy to discipline
employee Pedro Sanchez, Respondent violated Section 8(a)(5) and (1) of the 25
Act.
Remedy
Having found that Respondent committed unfair labor practices within the 30
meaning of the Act, I shall order it to cease and desist from such conduct and take
certain affirmative action designed to effectuate the purposes of the Act. More
specifically, Respondent will be ordered to rescind its new Fleet Vehicle Policy, which
was unlawfully implemented without the Union’s consent, and also the authorizations by
employees for Respondent to obtain their driving records, which were secured without 35
notification to or bargaining with the Union. Since its violations included applying the
unlawfully imposed Fleet Vehicle Policy to employee Pedro Sanchez, Respondent will
also be ordered to rescind its discipline of him under that Policy.6
40

6 Because the stipulated facts show that the only discipline under the new Fleet Vehicle Policy was
that involving employee Sanchez and because that discipline did not involve a loss of wages, there is no
need for a back pay remedy in this case.
JD–58–15
15
On these findings of fact and conclusions of law, and on the entire record herein,
I issue the following recommended7
ORDER
5
The Respondent, Trane Puerto Rico, Inc., its officers, agents, successors and
assigns, shall
1. Cease and desist from
10
(a) Refusing to bargain in good faith with Congreso de Uniones Industriales de
Puerto Rico (the Union) in the following appropriate unit:
All service and maintenance employees employed by Respondent at its
San Juan, Puerto Rico facility, excluding all office and clerical employees, 15
professional personnel, senior service technicians, guards and
supervisors as defined in the Act.
(b) Unilaterally, and without the Union’s consent, changing the terms and
conditions of the existing collective bargaining agreement between it and the Union.20
(c) Unilaterally changing the terms and conditions of employees without first
notifying the Union and giving it the opportunity to bargain about such changes.
(d) Dealing directly with unit employees over their wages, hours, terms and 25
conditions of employment.
(e) In any like or related manner interfering with, restraining or coercing
employees in the exercise of rights guaranteed them by Section 7 of the Act.
30
2. Take the following affirmative action necessary to effectuate the policies of
the Act.
(a) On request, bargain collectively and in good faith with the Union as the
exclusive bargaining representative of employees in the above-described unit.35
(b) Rescind any and all authorizations by employees that were secured directly
from employees without first notifying their bargaining representative and giving it the
opportunity to bargain about such authorizations, and, on request, bargain with the
Union about such authorizations.40

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended order herein shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be waived for all purposes.
JD–58–15
16
(c) Rescind, in its entirety, the unilaterally imposed new Fleet Vehicle Policy and
any discipline or other adverse sanctions issued to employees, including Pedro
Sanchez, because of the imposition of that policy.
(d) Within 14 days after service by the Region, post at its San Juan, Puerto Rico 5
facility, copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 12, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to physical posting of paper 10
notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these proceedings, the 15
Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at
any time since January 15, 2015.
20
(e) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
25
Dated, Washington, D.C., October 15, 2015
30
Robert A. Giannasi
Administrative Law Judge

8 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.”
JD–58–15
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to bargain in good faith with Congreso de Uniones Industriales de
Puerto Rico (the Union) in the following appropriate unit:
All service and maintenance employees employed by Respondent at its San
Juan, Puerto Rico facility, excluding all office and clerical employees,
professional personnel, senior service technicians, guards and supervisors as
defined in the Act.
WE WILL NOT unilaterally, and without the Union’s consent, change the terms and
conditions of the existing collective bargaining agreement between us and the Union.
WE WILL NOT unilaterally change the terms and conditions of employees without first
notifying the Union and giving it the opportunity to bargain about such changes.
WE WILL NOT deal directly with unit employees over their wages, hours, terms and
conditions of employment.
WE WILL NOT, in any like or related manner, interfere with, restrain or coerce
employees in the exercise of rights guaranteed them by Section 7 of the Act.
WE WILL bargain collectively and in good faith with the Union as the exclusive
bargaining representative of employees in the above-described unit.
WE WILL rescind any and all authorizations by employees that were secured directly
from employees without first notifying their bargaining representative and giving it the
opportunity to bargain about such authorizations, and, on request, bargain with the
Union about such authorizations.
JD–58–15
WE WILL rescind, in its entirety, the unilaterally imposed new Fleet Vehicle Policy and
any discipline or other adverse sanctions imposed upon employees, including Pedro
Sanchez, because of the imposition of that policy.
TRANE PUERTO RICO, INC.
(Employer)
Dated ________________________ By ___________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov
South Trust Plaza, 201 East Kennedy Boulevard, Ste 530, Tampa, FL 33602-5824
(813) 228-2641, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/12-CA-144599 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
ANY QUESTIONS CONCERNING THIS NOTIE OF COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (215) 597-5353