International Union of Operating Engineers, Local 501

National Labor Relations Board - Administrative Judge Opinions

Jul 20, 2017

28-CB-170340 (N.L.R.B. Jul. 20, 2017)

JD(SF)-34-17
Las Vegas, Nevada
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CA
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 501
and CASE 28–CB–170340
BRADY LINEN SERVICES, LLC
Elise F. Oviedo, Esq., for the General Counsel.
Adam M. Stern, Esq. and Justin M. Crane, Esq.
(The Meyers Law Group. A.P.C.),
for the Respondent.
DECISION
STATEMENT OF THE CASE
Dickie Montemayor, Administrative Law Judge. This case was tried before me on
February 7, 2017, in Las Vegas, Nevada. Charging Party (Employer) filed a charge on February
22, 2016, alleging violations by International Union of Operating Engineers, Local 501
(Respondent) of Section 8(b)(3) of the National Labor Relations Act, as amended (the Act).
Respondent filed an answer to the complaint denying that it violated the Act. After considering
the matter, (including the briefs filed by the parties on March 28, 2017) and based upon the
detailed findings and analysis set forth below, I conclude that the Respondent violated the Act
essentially as alleged.
FINDINGS OF FACT
JURISDICTION
The complaint alleges, and I find that
1. (a) At all material times, the Employer has been a limited liability company with an
office and a place of business in Las Vegas, Nevada (Employer’s facilities), and has been
engaged in the operation of a commercial laundry service.
JD(SF)-34-17
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(b) In conducting its operations during the 12-month period preceding February 22,
2016, the Employer purchased and received at its facilities goods valued in excess of $50,000
directly from points outside the State of Nevada.
(c) In conducting its operations during the 12-month period ending February 22,
2016, the Employer derived gross revenues in excess of $500,000.5
(d) At all material times, Employer has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
(e) At all material times, the Union has been a labor organization within the meaning 10
of Section 2(5) of the Act.
2. At all material times the following individuals held the positions set forth opposite
their respective names and have been agents of Respondent within the meaning of Section 2(13)
of the Act:15
(a) Thomas O’Mahar- President
(b) Kevin Million-Business Agent
(c) Charles Martin- Business Agent
20
The following employees of the Employer (the Unit) constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
All Chief Engineers, Senior Watch Engineers, Maintenance Engineers, and
Apprentice Engineers directly employed by the Employer to perform work 25
covered by the classifications set forth in Article 16, but excluding all other
employees.
3. In 2000, the Board certified Respondent as the exclusive collective-bargaining
representative of the Unit.30
4. At all times since 2000, based on Section 9(a) of the Act, Respondent has been the
exclusive collective-bargaining representative of the Unit.
ALLEGED UNFAIR LABOR PRACTICES35
i) Background
Brady Linen Services, LLC (the Employer) is a company that provides commercial
laundry services throughout Las Vegas to various customers including hotels and casinos. The 40
Employer currently owns and operates four facilities.
1) Joint Stipulations
Prior to the start of the hearing the parties entered into the following joint stipulations:45
a) Bradley Linen Services LLC (the Employer) has been a party to a collective-
bargaining agreement (CBA) with the Union since 2009.
JD(SF)-34-17
3
b) In 2013, the employer acquired the commercial laundering plants formerly known as
Mission Industries and in doing so, signed an assumption agreement of the existing
CBAs between the Union and Mission Industries, which expired in 2011.
c) The employer currently owns and operates four (4) laundering facilities located
throughout the Las Vegas valley (Mayflower, Lindell, Foremaster, and Losee).5
d) The CBAs in place at the time of the acquisition of Mission industries varied slightly
from the CBA’s already in place at the Employer’s facilities, so beginning in 2013 the
Employer and Union began negotiating four (4) separate CBAs together with slightly
different wages and pensions for each plant.
e) Throughout 2013, the Employer (Linda Prosser-Rux) met a union business agent 10
(Terry Smith) for several sessions but they were unable to reach an agreement.
f) On or about November 21, 2013, the Employer engaged with the law firm of Kamer
Zucker Abbott to assist in its negotiations with the Union.
g) Around that same time, a new business agent, Local President Thomas O’Mahar, was
assigned by the union to resume negotiations with the employer.15
h) The Parties met for an informal status meeting on February 3, 2014, and agreed to
disregard the previous negotiations since both parties were introducing new chief
negotiators; Local President Thomas O’Mahar for the Union and attorney Gregory
Kamar for the Employer.
i) In August of 2014, Brady Industries and Brady Linen Services physically separated. 20
Prior to August 2014, the two companies shared payroll and a Human Resources
office.
j) The Union and the Employer met on September 8, 2014. During this negotiating
session, the Employer provided a proposal packet, including an incomplete proposal
(the space next to “AMOUNT” was left blank for Article 23.02:Contributions 25
(contribution provision) which designates financial contributions to be made by the
Employer to the Union’s Joint Apprenticeship and Training Committee (JATC), but
no tentative agreements were agreed upon. (See GC Exh. 3. p. 57.)
k) On January 23, 2015, the parties met again and reached about 64 tentative agreements
based upon the Employer’s September 8, 2014 proposal, however the incomplete 30
proposal for the contribution was not one of them.
(Jt. Exh. 1.)
2) Bargaining History35
As summarized briefly above in the joint stipulations, after failing to reach agreement,
the parties again began negotiations in earnest on September 8, 2014, with a union economic
proposal and an Employer counterproposal. The Employer proposal left blank the financial
contribution provision for Article 23.02. The parties then met again on October 15, 2014. The 40
Union submitted a proposal packet which included a new Article 23.02 proposal. (GC Exh. 6 p.
17.) The Employer provided a counterproposal which did not include a proposal for Article
23.02. (GC Exh. 7.) The Union followed with a new proposal that did not include Article 23.02.
(GC Exh. 8.) On January 23, 2014, the parties again met and reached about 64 tentative
agreements based upon the Employer’s September 8, 2014 proposal. The agreed upon items 45
included Article 23.01 Agreement and Declaration of Trust which provided that:
JD(SF)-34-17
4
The Employer agrees to be bound by the Agreement and Declaration of Trust
establishing the Southern Nevada Operating and Maintenance Engineers
Apprenticeship and Training Trust Fund.
The parties also agreed upon Article 23.03 which provided that:
5
Each employer who employs at least ten (10) but less than twenty (20) engineers,
excluding apprentices, may, employ said number of engineers, and employ at
least one (1) apprentice engineer. Further, each Employer who employs twenty
(20) or more engineers, excluding apprentices, shall, at all times he employs said
number of engineers, employ at least two (2) Apprentice Engineers. The parties 10
agree that the Employer retains the option to determine whether it will employ an
Apprentice Engineer as a journeyman following his/her completion of the
apprenticeship program. The seniority of a journeyman engineer who has
completed an apprenticeship shall be computed from the day he/she was last hired
as an Apprentice Engineer in that particular establishment. (GC Exh. 11.) (GC 15
Exh. 2.)
The parties however did not reach agreement on the Article 23.02 proposal during this
session. The next meeting was held on February 20, 2015. At this meeting, the Union presented a
proposal titled; “Conceptual Resolution of all Outstanding Open Sections 2.20.15” which 20
purported to identify which sections were still “open” and included Article 23.02. (GC Exh. 9 p.
19.) This packet also included a proposal for Article 23.02. On April 23, 2015, the Union
presented Employer with its proposals which included a proposal for Article 23.02. (GC Exh. 10
p. 17.) The Employer presented a counterproposal which contained a page with the Title “Article
23.02 Contributions” which was blank. (GC Exh. 11.) On June 24, 2015, the Union presented a 25
proposal with a modified Article 23.02. (GC Exh. 13 p. 14.) On this same date, the Employer
presented the Union a document titled, “Brady Engineers Negotiations Status” in which in
reference to “Article 23.03 Contributions” the document noted, “Brady rejects Union proposal.”
(GC Exh. 11 p. 2.) The Employer also presented its proposals which, unlike the previous
proposal, did not include any page referencing Article 23.02. (GC Exh. 15.) On July 17, 2015, 30
the parties met for their final negotiation session. The Union presented a proposal which again
included the previous proposal for Article 23.02 which the Employer had previously referenced
as rejected in its June 24, 2015, “Brady Engineers Negotiations Status” document. (GC Exh.
16.) The employer advised that it would email its last, best, and final offer.
35
Thereafter, on August 6, 2015, Linda Rux, emailed to Tom O’Mahar various documents
including a document titled, “Brady Last and Final Proposal” and documents titled “Brady Last
And Final Proposal Cover Letter,” and “Status by Article”. (GC Exh. 17a.) The cover letter
contained the following language: “Any outstanding union proposals, whether in the form of a
formal proposal or in the form of contract language that is not identified above is, formally 40
rejected.” (GC Exh. 17(b).) The “Status by Article” document contained references to Article
23.01 and Article 23.03 showing them to have been tentatively agreed on January 23, 2015, but
did not include any reference to Article 23.02. (GC Exh. 17(c).) The “Brady Last Best and
Final” similarly did not include any reference to Article 23.02. (GC Exh. 17(d) and (e).)
45
On August 13, 2015, the Union held two ratification meetings wherein the Employers
last, best, and final offer was distributed to employees along with the articles tentatively agreed
JD(SF)-34-17
5
upon. (GC Exh. 18.) Charles Ed Martin, a union “Business Representative,” emailed Greg
Kamer, the attorney for the Employer. The email set forth the following, “The members at
Brady Linen voted for ratification of the last best and final offer from Brady Linen. We will
begin assembling the document for proof reading soon.” (GC Exh. 4.) Thereafter, in September
2015, the Union and Employer communicated regarding typographical errors and a numerical 5
error in wages that the Employer agreed to correct. (GC Exh. 19.) On September 25, 2015, the
Union emailed the Employer draft CBA’s for each of the four properties. Each draft included an
Article 23.02 despite the Employers previous rejection and the lack of any agreement on the
provision. On October 16, 2015, Rachael Spencer responded to Tom O’Mahar and advised him,
10
Me and my team have carefully compared your proposed Mayflower CBA with
our notes, TS’s and our Last and Best final proposal which was voted upon by
your membership. There are a great number of errors in your proposed contract
and the language that was agreed to. The errors that do not create substantive
changes I am willing to ignore. However, listed below are substantial mistakes 15
which must be corrected or we will not have a contract we can sign off on. (GC
Exh. 21 (a).)
Among the items identified as “substantial” was the Article 23.02 provision which Spencer
noted, “this was not agreed upon.” (GC Exh. 21(a).) On November 12, 2015, the Union emailed 20
four revised drafts of the CBAs and again included Article 23.02. (GC Exh. 22.) The Union also
provided the Employer with an outline of corrections it made to Brady’s draft CBAs. Under the
heading of Section 23.02 the Union set forth the following language:
The Employer’s Last, Best and Final offer omitted Section 23.02 so we originally 25
used the existing rates at the properties rather that use the Employer’s last
proposal on the Section from September 8, 2014 which, based on its structure
would not fit well in the current CBA’s. Based on your response, since the
proposal was never withdrawn by the Employer, I will insert that proposal in and
inform the JATC that they should prepare a supplemental billing for the additional 30
contribution amounts for 2014 and 2015. (GC Exh. 22)(b).)
On December 14, 2015, the Employer emailed the Union and advised that it agreed with
all of the comments and corrections, except Article 23.02 which the Employer again reiterated
was not part of the agreement. The Employer specifically referenced that language of the last, 35
best, and final offer which had included language which rejected any outstanding union
proposals which were not included in the last, best, and final offer (GC Exh. 23). The employer
bluntly advised “remove 23.02 as it was formally rejected.” (GC Exh. 23.)
On December 17, 2015, the Union responded to the employer’s assertion that Article 40
23.02 had been formally rejected by asserting, “The language currently in 23.02 was not a Union
proposal it was an Employer’s proposal and it was never withdrawn therefor (sic) it was still
active at the point the Employer made their offer.” (GC Exh. 24.) The Employer responded on
December 29, 2015, noting that, “As for Article 23.02 on 6/24/2015 you gave us a proposal and
it was rejected and was not part of the Brady Last, Best and Final so it was rejected. Remove it as 45
it was rejected.” (GC Exh. 25 p. 2.)
JD(SF)-34-17
6
On January 6, 2016, the Union delivered final drafts to the Employer all of which
included Article 23.02. On or about February 9, 2016, the Employer delivered to the Union the
four signed copies of the CBA’s with a cover page outlining the Employers position regarding
Article 23.02. In the Employer’s signed version, Article 23.02 was redacted out. The cover page
that accompanied the signed copies summarized the history of bargaining surrounding Article 5
23.02, and set forth the Employer’s position that, “there is no signed tentative agreement on the
contribution provision, nor are there any proposals from the Company for the contribution
provision.” (GC Exh. 26(a).) The Employer concluded by noting, “Brady has every intention of
complying with all topics that were collectively bargained, however, the contribution provision
was never agreed upon by the parties.” (GC Exh. 26(a).) Since the signing by the Employer of 10
the CBAs with the redacted portion of Article 23.02, the Union has failed and/or refused to
execute the CBA’s.
Analysis
15
It is well settled that the Section 8(d) obligation to bargain collectively requires either
party, upon the request of the other party, to execute a written contract incorporating an
agreement reached during negotiations. H. J. Heinz v. NLRB, 311 U.S. 514 (1941). Specifically,
the Board has held that under Section 8(b)(3) it is a per se violation for a union to refuse an
employer's request to sign a negotiated agreement. See Windward Teachers Assn., 346 NLRB 20
1148, 1150 (2006); Graphic Communications Union District 2 (Riverwood International USA),
318 NLRB 983, 990 (1995).
The obligation to sign arises only if the parties had a “meeting of the minds” on all
“substantive issues and material terms” of the agreement. See Sunrise Nursing Home, 325 NLRB 25
380, 389 (1998). The General Counsel bears the burden of showing not only that the parties had
the requisite “meeting of the minds” on the agreement reached but also that the document which
the respondent refused to execute accurately reflected that agreement. See Kelly's Private Car
Service, 289 NLRB 30, 39 (1988), enfd. sub nom. NLRB v. W.A.D. Rentals Ltd., 919 F.2d 839
(2d Cir. 1990); Cherry Valley Apartments, 292 NLRB 38, 40 (1988); Paper Mill Workers Local 30
61 (Groveton Papers Co.), 144 NLRB 939, 941–942 (1963). Whether there was a “meeting of
the minds” is based upon an analysis of on the objective terms of the contract, not on the parties'
subjective understanding of those terms. See Hempstead Park Nursing Home, 341 NLRB 321,
323 (2004).
35
a) Meeting of the Minds
I am not persuaded by the Union’s assertions that because the Employer agreed to include
Article 23.01 and 23.03 therefore it follows that there was no “meeting of the minds.” The
Union’s argument is premised on the notion that the lack of Article 23.02 renders the entire 40
Article 23 “superfluous” and ambiguous. (U. Br. at 9.) I disagree. The mere fact that the
employer does not agree to pay for apprentice training does not otherwise render its agreement to
employ apprentices “superfluous” or ambiguous. On the contrary, there is no ambiguity in the
Employer’s position that although it agrees to abide by the Agreement and Declaration of Trust
and the employment of apprentices it does not agree to pay for the training. (GC Exh. 11.) 45
JD(SF)-34-17
7
I am similarly not persuaded by the Union’s contention that to find a “meeting of the minds”
would force the parties to agree to a “nullity.” This argument is a reiteration of the Union’s
argument above which asserts that without Article 23.02 the entire Article 23 is “meaningless.”
In the first instance, it should be noted that if the Union believed this to be the case it could have
communicated this exact sentiment to the employer prior to ratifying the contracts that were5
presented to it but it did not. Secondly, as stated above, an agreement to employ apprentices
while not paying for the apprenticeship training does not render Article 23 “meaningless.”
Presumably, the Union receives something of value by having the employer agree to employ
persons who are apprentices regardless of who pays for their training. Nor can it be argued that
the Employer’s actions in not including Article 23.02 were somehow a mistake. The Employer 10
made clear that it was rejecting the Union’s proposals regarding 23.02 and in fact agreed to give
employees pay raises in lieu of the contributions contemplated in Article 23.02. I find that the
General Counsel has met its burden of establishing a “meeting of the minds” and find that the
Union violated the Act by refusing to sign the negotiated agreement.
15
b) The Union’s Attempt to Modify the Agreed Upon Terms by the Unilateral Addition
of Article 23.02
The Union’s unilateral addition of Article 23.02 language in an attempt to modify the
language of the Last, Best and Final offer that was ratified and agreed upon standing alone is a 20
breach of the Union’s duty to bargain in good faith. Once the Union agreed to the last, best, and
final offer it was bound to incorporate those terms into a written contract. H.J. Heinz & Co., v.
NLRB, 311 U.S. 54, 524 (1941). The attempt to obtain terms that it deemed more favorable than
the terms which it agreed upon by simply unilaterally inserting them constitutes an unlawful
refusal to execute a completed contract in violation of the Act. See for example, Ohio Car & 25
Truck Leasing, Inc., 149 NLRB 1423 (1964); Alta Bates Medical Center, 321 NLRB 382 (1996).
In so finding, it is important to note that I generally find O’Mahar’s justifications for his
insertion of the new terms to lack credibility. The notion that as far as Article 23.02 was
concerned that O’Mahar was, “unaware there was a dispute over it,” or that it was a “proposal
that was never withdrawn” or that after the passage of 3 months a “mistake” was discovered is 30
simply unworthy of credence in light of the clear documentary evidence of record of the
Employer rejecting the Union proposals including the language of the Last, Best Final offer
itself. (GC Exh. 22(b), Tr. 112.)
CONCLUSIONS OF LAW35
1. Brady Linen Services LLC is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 40
3. Since on or about February 9, 2016, Respondent has violated Section 8(b)(3) of
the Act by failing and refusing to execute the collective-bargaining agreements between
Respondent and Brady Linen Services, LLC.
45
JD(SF)-34-17
8
Remedy
Having found Respondent has engaged in certain unfair labor practices, I find
Respondent must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.5
a) Respondent shall, on request, execute the collective bargaining agreements with
Brady Linen, LLC. Respondent shall make whole those employees of Brady Linen LLC,
covered by the collective-bargaining agreements for any loss of earnings and other benefits
suffered by them as a result of Respondent's unlawful failure and refusal to execute the 10
collective-bargaining agreement since February 9, 2016, plus interest as computed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
b) Respondent will be ordered to post an appropriate notice.15
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended1
Order20
The Respondent, International Union of Operating Engineers, Local 501, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from engaging in the following conduct
(a) Failing or refusing to execute the collective-bargaining agreement with Brady25
Linen LLC.
(b) Within 14 days after service by the Region, post at its facility in Las Vegas Nevada
copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by
the Regional Director after being signed by the Respondent's authorized representative, shall be 30
posted by the Respondent immediately upon receipt and maintained for 60 consecutive 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 covered by any other material. In addition to physical posting of paper notices, the
notices shall be distributed electronically, such as by email, posting on an intranet or an internet 35
site, and/or other electronic means, if the Respondent customarily communicates with its
employees by such means. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these proceedings, the

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
2 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the 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(SF)-34-17
9
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current Unit
employees and former Unit employees employed by the Respondent at any time since February
9, 2016.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn5
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., July 20, 2017.
10
___________________
Dickie Montemayor15
Administrative Law Judge
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 a representative to bargain with your employer 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 do anything to prevent you from exercising the above rights.
WE WILL NOT fail and/or refuse to bargain collectively and in good faith with the employer, Brady
Linen Services, LLC, by refusing to sign the collective-bargaining agreements that the Employer
submitted to us on August 6, 2015, which did not include Article 23.02 Contributions or otherwise
repudiate those agreements.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of your rights under
Section 7 of the Act.
WE WILL, upon request by Brady Linen Services, LLC, promptly sign the collective-bargaining
agreements, which it submitted to us on or about February 9, 2016.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 501
(Labor Organization)
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.
2600 North Central Avenue, Suite 1400, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CB-170340 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 NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (602) 416-4755.