DMS Facility Services

National Labor Relations Board - Administrative Judge Opinions

Mar 18, 2016

31-CA-151920 (N.L.R.B. Mar. 18, 2016)

JD(SF)–12–16
Southern California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
DMS FACILITY SERVICES,
Respondent,
and Case 31–CA–151920
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 501, AFL–CIO,
Charging Party.
Celeste Hilerio Echevarria, Esq., for the General Counsel.
Daniel Adlong, Esq. (Ogletree Deakins, Nask,
Smoak & Steward, P.C.) for the Respondent.
Adam Stern and Justin Crane, Esqs. (The Meyers Law Group)
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARA-LOUISE ANZALONE, Administrative Law Judge. I heard this case on December 7
and 8, 2015, in Los Angeles, California. International Union of Operating Engineers, Local 501,
AFL–CIO (Local 501, the Union or Charging Party) filed a charge on May 7, 2015, and the
Regional Director for Region 31 issued a complaint on October 2, 2015 (the Complaint).1 The
General Counsel alleges that Respondent DMS Facility Services (DMS or Respondent) refused
to provide information requested by the Union, in violation of Sections 8(a)(5) and (1) of the
National Labor Relations Act, as amended, 29 U.S.C. sec. 151, et. seq. (the Act).
At trial, all parties were afforded the right to call, examine, and cross-examine witnesses,
to present any relevant documentary evidence, to argue their respective legal positions orally,
and to file post-hearing briefs.2 On January 26, 2016, post-hearing briefs were filed by the

1 All dates are in 2015, unless otherwise indicated.
2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC __” for General
Counsel’s Exhibit; “R __” for Respondent’s Exhibit; “GC Br. at __” for the General Counsel’s post-
hearing brief and “R Br. at __” for Respondent’s post-hearing brief.
JD(SF)-12-15
2
General Counsel, Respondent and Charging Party and have been carefully considered.
Accordingly, based upon the entire record herein, including the post-hearing briefs and my
observation of the credibility of the witnesses, I make the following:
I. FINDINGS OF FACT5
A. Jurisdiction
At all times material herein, Respondent, a State of California corporation with a
principal place of business located in South Pasadena, California, has been engaged in the 10
provision of janitorial, facility engineering and landscaping services. The evidence establishes,
the parties admit, and I find that, during the 12-month period immediately preceding the issuance
of the instant complaint, which period is representative, Respondent, in the normal course and
conduct of its above-described business operations, provided services valued in excess of
$50,000 directly to customers outside the State of California. It is alleged, Respondent admits, 15
and I find that Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and further that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects commerce and that the National 20
Labor Relations Board (the Board) has jurisdiction of this case, pursuant to Section 10(a) of the
Act.
B. Background Facts
25
1. Respondent’s Operations
Respondent provides janitorial, building engineering services and landscaping services.
The employees at issue in this case are engineers who work in Respondent’s building
engineering division in Southern California. They work predominately in commercial office 30
buildings and typically are each assigned to a specific building on a full-time basis.
Respondent’s operations are overseen by Jeff Magann, Respondent’s vice president and general
manager.
Respondent contracts the services of the engineers to various property owners and 35
managers. General Counsel’s witnesses described Respondent’s practices as consistent with the
industry model in which contractors such as Respondent provide the labor, but their customers,
the property owners and managers, are chiefly responsible for assigning and directing the work
of those employees. It is undisputed that the Union is unaware of the content of Respondent’s
contracts with its customers.40
2. Respondent’s Relationship with Local 501
DMS is signatory to a multiemployer bargaining agreement, known as the “BOMA
Agreement,” between the Building Owners and Managers Association of Greater Los Angeles, 45
Inc. and Local 501, which is effective from November 1, 2011 until October 31, 2016.
JD(SF)–12–16
3
Michael Ulloa, an Organizer for Local 501, is responsible for representing the DMS employees
covered by the BOMA Agreement. Ulloa has worked in various capacities for Local 501 and its
International Union for the past 5 to 6 years.
The BOMA Agreement provides that a signatory employer agrees to recognize the Union 5
as the representative of the signatory’s employees falling within certain job classifications who
perform work at buildings in Los Angeles and Orange Counties built in Los Angeles and Orange
Counties after the BOMA Agreement’s November 1, 2011, effective date, to the extent such
recognition does not violate applicable law.3 (See GC 3 at Article I). A signatory employer
further agrees that its employees, as a condition of their employment, shall be or shall become 10
members of the Union within a prescribed time period.
With respect to buildings already constructed as of November 1, 2011, the BOMA
Agreement at its Article I, Section G(3) provides that the signatory “agrees to notify the Union in
writing when the Employer begins negotiations for a contract to service, manage, or operate said 15
buildings.” (GC 3 at 4–8) The Agreement provides for voluntary recognition at such buildings;
if, however, the Union fails to demand such recognition at a building prior to the signatory’s
Section G(3) notice, the signatory is entitled to discounted wage and pension rates for employees
at the building. In effect, then, a signatory’s failure to comply with the notice requirement would
disqualify it for these discounted rates at the building in question. 20
3. The March 23 Grievance
On March 23, Ulloa filed a grievance against DMS alleging that it had violated “Article I,
Section G and/or any other Article that may apply” under the BOMA Agreement (the March 23 25
grievance). (GC 4) The March 23 grievance asserts that Respondent is in violation of the
BOMA Agreement in that it is refusing to recognize Local 501 at all DMS locations in Los
Angeles and Orange Counties. As Ulloa explained, another purpose of the grievance is to police
the contract’s Section (G)(3) notice requirement, whereby Respondent agreed to notify the Union
in writing of its commencement of negotiations for any contract to service, manage or operate 30
new buildings.
Respondent, within 3 days of receiving the March 23 grievance, challenged the Union’s
interpretation of the BOMA Agreement, and specifically whether it, in Respondent’s
terminology, applied to “non-BOMA job locations.” (GC 5) The March 23 grievance is 35
currently pending arbitration.
While there is currently a dispute over which buildings are covered by the BOMA
Agreement, it is undisputed that, during the relevant time period, Respondent has recognized the
Union as the collective-bargaining representative of its employees at seven locations.4 For the 40

3 Those positions are: Chief Engineer, Chief Operating Engineer, Assistant Chief Engineer, Lead
Engineer, One-Man Plant, Certified Engineer, Non-Certified Engineer, Apprentice Engineer and
Maintenance Attendant. See GC 3 at 19–20.
4 These locations (in California) are: 10889 Wilshire Blvd., Los Angeles; 475 Anton Blvd., Costa
Mesa; 300 Corporate Pointe, Culver City; 700 North Alameda, Los Angeles; 1500 Quail St., Newport
Beach; 345 Foothill Rd., Beverly Hills; and 600 Wilshire Blvd., Los Angeles. GC 1(f) at ¶ 6.
JD(SF)–12–16
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purpose of the foregoing analysis, I find that the Unit, as described in the BOMA Agreement
(regardless of whether it is ultimately found to encompass additional locations within Los
Angeles and Orange Counties), is appropriate for collective bargaining within the meaning of
Section 9(b) of the Act, and that the Union has been at all times material the exclusive
representative of employees in the Unit for purposes of collective bargaining.5
C. The Union’s Information Request
The facts of this matter are not significantly in dispute and fall within two general time
periods: March–May and August–September.10
1. March through May
One day after filing the March 23 grievance, Ulloa sent Magann a request (the March 24
request) seeking several categories of information, each of which he asserted was necessary for 15
the Union to prepare for the grievance, as well as “for contract administration purposes.” The
March 24 request sought, among other things, the following information:
8. Copies of audits and/or annual reports performed at each job location
that include all man hours for engineering services at each location.20
10. Copies of all Contracts between DMS and their customers, suppliers,
and contractors.
12. Any and all Customer Lists including company names, address, phone 25
number and contact person.
13. Copies of all employee evaluations including the names and phone
numbers of the supervisors that performed said evaluations.
30
(GC 6) This letter additionally stated that, unless otherwise indicated, it should be construed as
requesting information for the past five years and being “limited to bargaining unit employees
covered by the [BOMA] Agreement.” Id.
Magann responded 3 days later. His response to the request for contracts and customer 35
lists (Items 10 and 12, above) was to state, in each case: “Confidential business information.”
(GC 7) In response to the request for audits and/or annual reports, Magann asked for
clarification of what those terms meant, and further inquired “For what time period?” In
response to the Union’s request for employee evaluations and contact information for the
supervisors who had performed them, Magann again claimed not to know the time period for 40
which the information was requested, and further asked “Which phone numbers?”5 and “What
is the relevance to the CBA?” Id. According to Magann, he was aware at the time that DMS did
not perform written employee evaluations.

5 Although this was not clarified at hearing, it is presumed that Respondent was asking the Union
whether the request was for business or personal phone numbers.
JD(SF)–12–16
5
On April 9, Ulloa replied. In response to Magann’s request for clarification of the terms
“audits and/or annual reports,” Ulloa reiterated that the request was for five years’ worth of
records and provided a sample audit report.6 He further suggested that, to the extent that
Respondent believed this request to be overly burdensome in terms of time or expense, the Union
would make individuals available to perform a hand search of Respondent’s records. Id. In 5
response to Respondent’s request for relevance of employee evaluations to the administration of
the BOMA Agreement, the Union cited numerous sections of that agreement, including those
dealing with recognition, grievances and arbitration.
Ulloa also addressed the requests for customer contracts and lists, stating:10
The written agreements between DMA and their customers are the
foundation that develops and influences all terms and conditions of the
bargaining unit. These agreements illustrate all the duties of our members.
Failure to fulfill the duties that are written out in said agreements could 15
lead to the discipline and dismissal of our members. Therefore, these
contracts go to the core of the employer-employee relations and are not
confidential business information.
(GC 8) Regarding the request for customer lists, Ulloa stated:20
These Customer Lists influence and form the day to day operations of the
employees that the Union Represents. These Customers act as agents of
DMS, directing represented employees in their daily duties. Failure to
fulfill any directives could lead to the discipline and dismissal of a 25
represented employee.
Accordingly, Ulloa asserted, these documents also “go to the core of employer-employee
relations and are not confidential business information.” Id.
30
On April 15, Magann responded, appearing to make certain counter-offers. With respect
to the requested audit and/or annual reports, Respondent stated, “Employer counter 2 years
instead of 5. Employer will provide by 05/05/2015.”7 With respect to employee evaluations,
Magann made the same response, adding that it would provide “work phone numbers” for the
supervisors at issue. (GC 9) Regarding the contracts and customer lists, however, Respondent 35
expanded only slightly on its prior position, stating that these constituted “proprietary
information,” that “[u]nion members are employed under the provisions of their applicable CBA
and not customer contracts” and finally that “customers do not act as agents for DMS.” Id.
It is undisputed that Respondent did not, in fact, provide any audit and/or annual reports 40
or employee evaluations by May 5. On May 7, the Union filed the unfair labor practice charge

6 See GC 8 at 5–14.
7 Although Ulloa testified that, by the April 9 letter, he had narrowed this request to two years instead
of five, this is not borne out by the record evidence. See GC 8. Based on the record as a whole, I believe
he did not deliberately misrepresent the facts in this regard, but rather got his April 9 letter confused with
Respondent’s “counter.”
JD(SF)–12–16
6
underlying this case. On May 18, Respondent provided certain documents to the Union, but
these did not contain any of the requested information at issue in this case.8
A few days later, Ulloa and Magann discussed the Union’s information request at a
Step II meeting regarding the March 23 grievance.9 Magann asked Ulloa how things stood with 5
the request; Ulloa responded that he had not finished reviewing the documents Respondent had
provided, but was sure that there was “still some outstanding information” and that therefore the
Union considered Respondent’s response incomplete. (Tr. 80–81) While there was discussion of
other, then-outstanding information requests, Ulloa did not mention the specific requests at issue
here.10
2. August through September
On August 20, nearly 3 months following the Step II grievance meeting, Ulloa emailed
Magann that there were still “more than a few items that are outstanding in the Request for15
Information.” With respect to the requests at issue here, he stated as follows:
7. DMS has refused to [provide] all yearly audits – we provided the
employer with an example.
20
9. DMS has refused to provide any copies of contracts between DMS and
their Customers, Suppliers, and Contractors. Again the written
agreements between DMA and their customers are the foundation that
develops and maintains and influences all the terms and conditions of
employment of every rank and file employee covered under the 25
BOMA CBA[.]
11. DMS has refused to provide any Customer List (All property managers
and their team).
30
12. DMS has refused to provide any employee evaluations.
(GC 12)
Six days later, Magann emailed his response, stating that Respondent was “evaluating” 35
the request and would respond by the end of the week. Id. Two days later, on August 28, he
sent Ulloa another email, stating, “[t]his is to confirm that DMS does not have evaluations (#12)
for any bargaining unit members [] as requested in the April 9, 2015 letter.” (GC 13) When
asked at hearing why it took him until this date to inform the Union that there were no
documents responsive to this request, Magann responded, “[i]t was a very long process going 40
through the information request. We went back and forth on quite a few things.” (Tr. 292)

8 Respondent did provide the Union with a copy of an audit on May 18, but this was an audit of the
Union’s pension fund prepared by a certified public accountant. GC 10, 16.
9 The facts regarding this meeting are based on the unrebutted testimony of Ulloa, who attended along
with two additional Union representatives. Present for Respondent was Magann, who did not testify
about the meeting, and an individual who described himself as a consultant, who did not testify.
JD(SF)–12–16
7
Magann then stated, “[a]ttached you will find the Audit Reports for the past two (2) years
(#7) for the Local 501 represented employees.” (GC 13) What was attached appear to be nine
reports. Six of these reports took the form of the sample the Union had provided; of these,
however, five were dated prior to the requested time period and one was undated. Also attached 5
to Magann’s email were two “inspection reports” from a single location, as well as a “facility
audit sheet” from another location. (See GC 17)
On September 4, Ulloa emailed Magann, protesting that DMS had acted in bad faith in
providing the audit reports on August 28, in that those reports related only to three locations; the 10
Union’s position, he explained, was that the BOMA Agreement applied to all buildings within
Los Angeles and Orange counties constructed as of its effective date. Ulloa also asked Magann
to confirm that, based on the Union’s statement of the scope of coverage of the BOMA
Agreement, that there existed no written employee evaluations. Id.
15
Finally, with respect to the information claimed by Respondent to be confidential, Ulloa
reiterated the Union’s need for the documents. With respect to Respondent’s contracts, in
addition to its previous argument that the requirements of these contracts impacted Unit
employees’ working conditions, Ulloa added that the contracts would assist the Union in policing
Section G(3)’s requirement that DMS notify the Union when it began contract negotiations for a 20
new building. He further explained that the contracts “could get at the core and understanding of
the Joint Employer relationship between [DMA] and their Property Managers.” Id. at 9.
Regarding the request for customer lists, Ulloa repeated his argument that DMS’ customers acted
as de facto supervisors of DMS employees, and added a similar reference to the Union’s need to
police the Section G(3) notice requirement. Id.25
On September 15, 2015, Magann responded, stating that DMS was willing to provide
documents related to buildings where the Union had members, “but not every single location
where DMS provides services in Los Angeles and Orange counties,” because “both DMS and
Local 501 know that the union’s membership is not so wide spread.” (GC 14 at 4) Magann 30
made no further specific reference to the scope of the audit documents provided, but later
testified that he had provided all of the audit reports Respondent had at the time (at locations at
which Respondent recognized Local 501), because the audits were “not done every year,” but
only “by request” or “by contract.” (Tr. 238–39)
35
With respect to the request for employee evaluations, Magann now did an “about face,”
informing Ulloa that Respondent’s “personnel files would contain employee evaluations, if any
exist,” and that the Union would be permitted to examine such files “for buildings where
Local 501 represents members” at a mutually convenient time.10 With respect to supervisors’
phone numbers, Magann stated DMS would not produce such information, as the DMS 40
supervisors were not Unit employees and their contact information was not necessary for the
Union’s administration of the BOMA Agreement. (GC 14 at 6)

10 At hearing, Magann offered no explanation of the circumstances that led to him offering this
written invitation.
JD(SF)–12–16
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Finally, with respect to Respondent’s contracts and customer lists, Magann did not
respond directly to Ulloa’s specific arguments or his reference to Article 1, Section G(3), but
only stated that the Union’s “general arguments” for relevance were insufficient to oblige
Respondent to produce the documents. Id. at 5.
5
Two days later, Ulloa emailed Magann, reiterating the Union’s position that the BOMA
Agreement, by its terms, covered all buildings in Los Angeles and Orange counties that exist “or
will exist during the duration of the contract.” He also referred to the contract’s union security
clause, which required that all DMS employees be members of Local 501. Id. at 2. Therefore,
he explained, all DMS employees within the BOMA job classifications “are to be members in 10
good standing[,] will remain members and all those that are not…will become members.”
Id. at 3. In response, Magann emailed the following: “Thank you for your response. For the
same reasons discussed [in the September 15 email], we respectfully disagree with your reading
of the contract.” Id. at 1.
15
D. Respondent’s Asserted Confidentiality Concerns
According to Magann, Respondent’s customer contracts contain confidential financial
information in the form of payment and billing terms, pricing information for Respondent’s
services, and insurance information. He testified that, in the hands of DMS’ competitors, this 20
information would undermine DMS’ market position and allow its competition to undercut its
pricing. Magann further testified that DMS’ contracts “quite often” contain material from DMS
proposals to customers, in the form of “operational plans” developed for the customer that set
forth how DMS plans to “approach the work” performed under the contract. This proprietary
business information, he explained, sets DMS apart from its competitors and therefore requires 25
protection from them.
Finally, Magann testified that Respondent’s customer contracts contain confidential
information regarding its customers’ ownership; “quite a few” of these contracts, according to
him, require that the agreement itself be kept confidential, out of the customers’ concern to keep 30
their ownership information confidential. (Tr. 254) Though no witness testified on behalf of any
of Respondent’s customers, Magann opined that “ownership information may be something that
they want to keep exclusive and to not have in the hands of the Union or our competition.”
(Tr. 254)
35
DMS also maintains customer lists, which contain the location of customers’ offices, as
well direct contact information, such as cell phone numbers. According to Magann, DMS treats
such information as confidential because a third party could use it to solicit DMS’ customers “for
any reason,” including, in the case of DMS’ competitors, for business. (Tr. 256–57)
40
No evidence was offered regarding Respondent’s policies or practices regarding
safeguarding or otherwise protecting its allegedly confidential information.
JD(SF)–12–16
9
E. Local 501’s Asserted Joint-Employer Concerns
According to the General Counsel, the Union’s request for Respondent’s customer
contracts and lists was based in part on its concern that property managers employed by
Respondent’s customers are the de facto supervisors and managers of the Unit employees.5
In this regard, Counsel for the General Counsel presented evidence, unrebutted by
Respondent, that the engineers only see Respondent’s own managers “maybe once a month” and
that this would occur if a property manager wanted to discipline an employee or escort a worker
off of its property. While the Union is admittedly unaware of the contents of Respondent’s 10
customer contracts, Ulloa testified that building owners and managers in the industry are known
at times to reserve, in their contracts, the right to discharge specific employees of contractors
such as Respondent. By contrast, General Manager Magann testified that DMS is responsible for
administering employee discipline to Unit members. However, according to Ulloa, it is common
in Respondent’s industry for a property manager (i.e., customer) to instigate such discipline, and 15
he was aware of instances (outside of DMS) in which a property manager’s taking issue with the
performance of an individual engineer ultimately led either to the engineer’s discipline or
removal from the property.
Paul Williams, a former DMS assistant chief engineer, testified that during the 3 years he 20
worked for Respondent (between 2011 and 2014), he interacted with a DMS manager
approximately 5 percent of the time, and that he could go for an entire year without any such
interaction. As Williams explained, he instead reported to DMS Chief Engineer Brian
McCarthy, as well as to the facility manager for the DMS customer at whose building he was
assigned. Williams described having weekly interaction with the facility manager, who would 25
directly assign him work to distribute among the DMS employees. He further testified that he
was required to notify the facility manager (as well as McCarthy) if he were working overtime,
calling in sick, or otherwise planning to be absent.
II. ANALYSIS30
A. Credibility
The key aspects of my factual findings above incorporate the credibility determinations
I have made after carefully considering the record in its entirety. The testimony concerning the 35
material events regarding Charging Party’s information request and Respondent’s response
thereto contain certain conflicts. As described in more detail, infra, evidence contradicting the
findings, particularly certain testimony from Respondent’s sole witness, Magann, has been
considered but has not been credited.
40
I based my credibility resolutions on consideration of a witness’ opportunity to be
familiar with the subjects covered by the testimony given; established or admitted facts; the
impact of bias on the witness’ testimony; the quality of the witness’ recollection; testimonial
consistency; the presence or absence of corroboration; the strength of rebuttal evidence, if any;
the weight of the evidence; and witness demeanor while testifying and the form of questions 45
eliciting responses. Credibility findings need not be all-or-nothing propositions, and it is
JD(SF)–12–16
10
common for a fact finder to credit some, but not all, of a witness’ testimony. Daikichi Sushi, 335
NLRB 622, 622 (2001).
My credibility findings are generally incorporated into the findings of fact set forth
above. More detailed discussions of specific credibility resolutions appear here in those 5
situations that I perceived to be of particular significance.
B. The Parties’ Positions
The Complaint alleges that, since about April 9, Respondent has unlawfully failed to 10
provide the following information requested by the Union on that date:
(a) Copies of, or make readily available, all audits and/or annual reports
performed at each job location that include all man hours for engineering
services at each location for the past two years.15
(b) Copies of all Contracts between DMS and [its] customers.
(c) Any and all customer lists including company names, address, phone number
and contact person.20
(d) Copies of all employee evaluations including the names of the supervisors that
performed said evaluations for the past five years.11
The Complaint additionally asserts that Charging Party reiterated its request at the Step II 25
grievance meeting held on or around August 28.
According to the General Counsel, the Union is entitled to the requested information
relating to both the locations who work at the DMS-contracted buildings at which Respondent
recognizes the Union (the “recognized locations”), as well as all other buildings at which 30
Respondent employs individuals in Unit job classifications throughout the counties of Los
Angeles and Orange (the “disputed locations”). At hearing, the General Counsel stated that it
considered the safety audits and reports, as well as the employee evaluations (Items (a) and (d),
supra), to be presumptively relevant with respect to employees working at one of the recognized
locations. With respect to the disputed locations, the General Counsel generally argues, the 35
requested information is necessary for the Union to process the March 23 grievance over whether
Respondent has violated Article 1, Section G of the BOMA Agreement. By its post-hearing
brief, the General Counsel also argues that Respondent unreasonably delayed in providing safety
audits on August 28, as well as in its response to the Union’s request for employee evaluations.
(GC Br. at 25–26)40
Respondent, by contrast, asserts that it responded fully to the Union’s request for safety
audits and reports related to recognized locations, does not have any employee evaluations and is

11 At the onset of the hearing in this matter, General Counsel, without objection, moved to amend the
characterization of these categories of information as set forth in the Complaint, and this amendment was
granted.
JD(SF)–12–16
11
not obligated to produce any of the remaining information sought. With respect to the disputed
locations in particular, Respondent argues that the General Counsel has failed to show how
information relating to employees working at such locations is necessary for the Union to
properly represent its members. Respondent further argues that the request for information is
premature in that an arbitrator has not yet ruled that Respondent has violated any obligation it 5
may have under the BOMA Agreement, and that until that time, Local 501’s statutory right to the
information will remain unknown. To find otherwise, Respondent argues, would necessitate the
Board “choosing” the Union’s interpretation of the BOMA Agreement over Respondent’s.
Finally, Respondent asserts that it is privileged not to provide its customer contracts and lists
because they contain confidential and/or proprietary information.10
C. The Applicable Law
Under Sections 8(a)(5) and 8(d) of the Act, an employer is required to provide a union
with relevant information needed to enable it to properly perform its statutory duties and 15
responsibilities in representing employees. NLRB v. Acme Industrial Co., 385 U.S. 432, 435–36
(1967). Following an appropriate request, and limited only by considerations of relevancy, the
obligation arises from the operation of the Act itself. Ellsworth Sheet Metal, 224 NLRB 1506
(1976). Information requests pertaining to terms and conditions of bargaining unit employees
are “presumptively relevant,” and the employer must provide the requested information. 20
Disneyland Park, 350 NLRB 1256, 1257 (2007).
Where, by contrast, a union seeks information concerning employees outside of the
bargaining unit, or where it seeks information not clearly necessary to its performance as a
representative, it is the union’s burden to demonstrate relevance. Id.; see also San Diego 25
Newspaper Guild v. NLRB, 548 F.2d 863, 867 (9th Cir. 1977). The standard for relevance is
articulated as a “liberal discovery type standard.” Loral Electronic Systems, 253 NLRB 851, 854
(1980) (internal citations omitted). The burden to establish relevance is not an exceptionally
difficult one, requiring only that the desired information be useful to the union in carrying out its
statutory duties and responsibilities. Castle Hill Healthcare Center, 355 NLRB 1156, 1179 30
(2010); Shoppers Food Warehouse Corp., 315 NLRB 258, 259 (1994).
A union satisfies this burden when it demonstrates a reasonable belief, supported by
objective evidence, that the information requested is relevant. Shoppers Food Warehouse, 315
NLRB at 259 (citation omitted). Potential or probable relevance is sufficient to trigger an 35
employer’s obligation to provide information. Reiss Viking, 312 NLRB 622, 625 (1993) (noting
the union’s request must be based on objective factors and that “hearsay” reports are sufficient to
show the union has some basis for making its requests). It is worth noting, however, that the
union’s explanation of relevance “must be made with some precision” and there must be more
than a bare assertion that the union needs the information. Disneyland Park, 350 NLRB at 1258 40
fn.5; see Detroit Edison Co. v. NLRB, 440 U.S. 301, 314 (1979).
Once the union has proven the information it requested is relevant to its statutory
obligations of performing its duties as the bargaining unit representative, “the employer has the
burden to prove a lack of relevance . . . or to provide adequate reasons as to why [it] cannot, in 45
good faith, supply such information.” Calmat Co., 331 NLRB 1084, 1095 (2000) (quoting San
JD(SF)–12–16
12
Diego Newspaper Guild v. NLRB, 548 F.2d at 867). It is well established that an employer may
not refuse to furnish requested information solely on the basis that it concerns matters outside the
scope of the bargaining unit represented by the union. Curtiss-Wright Corp., Wright
Aeronautical Division v. NLRB, 347 F.2d 61 (3d Cir. 1965), enfg. 145 NLRB 152 (1963).
5
D. Respondent Failed to Provide Certain Relevant
Information in Violation of Sections 8(a)(5) and (1) of the Act
In this case, certain of the information sought is presumptively relevant. Specifically,
with respect to Respondent’s recognized locations, the safety audits and reports, as well as the 10
employee evaluations, clearly relate to terms and conditions of employment of Unit employees.
See Detroit Newspaper Agency, 317 NLRB 1071, 1077 (1995) (finding health and safety audit
presumptively relevant); New York Telephone Co., 299 NLRB 351 (1990) (finding performance
appraisals presumptively relevant), enfd. 930 F.2d 1009 (2d Cir. 1991); Columbia University,
298 NLRB 941, 945 (1990) (finding information regarding employee job evaluation process 15
presumptively relevant). That said, I will address the merits of the General Counsel’s allegations
regarding those items of information later in this decision.
With respect to the remaining categories of information sought, there is no presumption
of relevance, because the information in question does not necessarily concern terms and 20
conditions of employment for Unit employees. In particular, because the parties dispute whether
the Unit encompasses employees working at Respondent’s disputed locations, the Union’s
requests for information pertaining to such employees cannot be considered presumptively
relevant. E.I. DuPont de Nemours and Co.v. NLRB, 744 F.2d 536, 538 (6th Cir. 1984) (where
union seeks information concerning employees outside of the bargaining unit, there is no 25
presumption of relevance and union has the burden to show relevance), enfg. 264 NLRB 48
(1982).
As set forth below, with the exception of its request for employee evaluations, I find that
the Union has met its burden in demonstrating the relevance of the requested information related 30
to the disputed locations, and I further find that Respondent has not proven a lack of relevance
for this information. I further find that the Union has not demonstrated the relevance of
Respondent’s customer contracts or lists related to the recognized locations, nor has it
demonstrated the relevance of the employee evaluations for the disputed locations. Finally,
I find that Respondent’s asserted confidentiality defense lacks merit.35
1. The Customer Contracts and Lists
General Counsel offers two rationales as to why Local 501 is entitled to Respondent’s
customer contracts and lists. First, insofar as the recognized locations are concerned, the General 40
Counsel argues that control over the Unit employees’ terms and conditions of employment by
Respondent’s customers renders their identities and contractual terms relevant to the Union’s
representational functions. Specifically, with respect to the contracts, it is asserted that these
documents may reserve to Respondent’s customers such control and that, in any event, the
contracts—to the extent that they obligate Respondent to provide services—could be relied upon 45
to discipline Unit employees. Finally, with respect to the disputed locations, the General
JD(SF)–12–16
13
Counsel argues that the contracts and lists would assist the Union in policing Respondent’s
obligation to recognize the Union and to provide notice of the commencement of negotiations to
service new buildings.
a. Respondent Was Not Obligated to Provide Its 5
Customer Contracts and Lists for the Recognized Locations
Board law is clear that a union must generally establish the relevancy of information
regarding single, joint employer or alter ego relationships in which an employer is involved.
While the Union is not required to prove the existence of such a relationship, the union must 10
have an “objective factual basis for believing” that the relationship exists. Consolidation Coal
Co., 307 NLRB 69, 72 (1992) (citing Bohemia, Inc., 272 NLRB 1128 (1984), Maben Energy
Corp., 295 NLRB 149 (1989)). See also Shoppers Food Warehouse., 315 NLRB 258; Knappton
Maritime Corp., 292 NLRB 236 (1988); M. Scher & Son, 286 NLRB 688 (1987); Walter N.
Yoder & Sons v. NLRB, 754 F.2d 531, 536 (4th Cir. 1985), enfg. 270 NLRB 652 (1984). Where, 15
for example, a union is informed that certain of its members will be paid by an outside entity for
their participation in a new training program, the Board has found the union entitled to
information that would shed light on the identity of that third party and whether, in fact, it would
have the right to direct the work of the Unit employees. See Olean General Hospital, 363 NLRB
No. 62, slip op. at 3 (2015).20
In this case, however, there is no indication that Local 501, at the time it requested the
customer contracts and lists, had an objective factual basis for its concerns regarding control by
property managers over the terms and conditions of employment of the Unit employees. While
the General Counsel presented the testimony of a one-time DMS employee concerning his 25
interaction with customers’ property managers (and corresponding lack of interaction with DMS
managers), there was no showing that any of his observations were known or considered by the
Union in formulating its information requests.12 Likewise, although Ulloa testified that he was
aware of a DMS employee whose wage rate had been changed at the request of a property
manager, there is no evidence that he knew and considered this when making the Union’s 30
information request.13
Instead, the evidence shows that, at the time of its information request, the Union’s basis
for believing that Respondent’s customers may control terms and conditions of employment for
Unit employees was limited to Ulloa’s understanding regarding the operation of industry in 35
which Respondent operates. Likewise, its basis for believing that Respondent’s customer
contracts might reserve such control to Respondent’s customers is based on Ulloa’s belief that
property owners and building managers, throughout the industry, sometimes included such
reservations in their contracts. But this is the sort of mere suspicion that, alone, does not suffice

12 For this reason, it is unnecessary to determine whether this individual’s experience, who had last
worked for DMS more than a year prior to the Union’s information request, could have provided an
objective factual basis for the requests.
13 According to the General Counsel, Ulloa testified that “at the time he made the request for []
information, he knew that at least one of Respondent’s employees had been disciplined at the request of a
property manager.” (GC Br. at 17) (emphasis added). In fact, Ulloa testified the employee in question
was employed by a non-DMS signatory to the BOMA Agreement. See Tr. 177, ll.18–25, 178, ll.1–7.
JD(SF)–12–16
14
to support a request for non-presumptively relevant information. Anchor Motor Freight, 296
NLRB 944, 948 (1989) (citation omitted). Likewise, Ulloa’s suspicions that Respondent’s
customer contracts could potentially be used as a basis on which to discipline Unit employees is,
“at best . . . a hypothetical theory” insufficient to entitle the Union to these documents. Id.
5
Accordingly, I find that, with respect to the recognized locations, Respondent’s customer
contracts and lists have not been shown to be relevant and necessary to Local 501’s performance
of its duties as the exclusive collective-bargaining representative of its members.
b. Respondent Failed to Provide Customer Contracts and Lists 10
For the Disputed Locations, in Violation of Sections 8(a)(5) and (1) of the Act
I do find, however, that the customer contracts and lists relating to Respondent’s disputed
locations are relevant and necessary to the Union’s performance of its duties as the representative
of the unit employees. It is well settled that information requested will be considered relevant 15
when it would assist the Union in evaluating the merits of a grievance and the propriety of
pursuing that grievance to arbitration. United Technologies Corp., 274 NLRB 504, 508 (1985).
In NLRB v. Acme Industrial Co., the Supreme Court made it clear that an employer’s duty
to furnish requested information is an obligation which stands “in aid of the arbitral process,” in 20
that it permits a union to evaluate grievances and sift out unmeritorious claims. 385 U.S. at 437–
38. Hence, an employer is precluded from withholding relevant information so as to require a
union to proceed with a grievance under conditions amounting to no more than “a game of blind
man’s bluff.” Id. at 438, fn.8. Finally, the Board is not required to wait for an arbitrator’s
determination of the relevance of requested information before it can enforce statutory rights 25
under Section 8(a)(5). Id.
The Board, in determining that information is producible, does not pass on the merits of a
grievance underlying an information request. See Endo Painting Service, 360 NLRB No. 61,
slip op. at 1 (2014); Des Moines Cold Storage, 358 NLRB 388, 389 (2012) (citing Acme 30
Industrial, 385 U.S. at 438); Dodger Theatricals Holdings, 347 NLRB 953, 970 (2006); Schrock
Cabinet Co., 339 NLRB 182, 182 fn.6 (2003); Shoppers Food Warehouse., 315 NLRB at 259.
Indeed, a union is not required to ‘prove up’ the robustness of the grievance in question, even
where the employer claims it is procedurally or legally flawed. See Endo Painting Service, supra
(employer required to provide information requested regardless of whether the pending35
grievance was permitted under the parties’ agreement), Dodger Theatricals Holdings, supra (in
information case, it is not for the administrative law judge “to make a determination on the
merits that Union did not establish a contract violation”).
In this case, the identity of Respondent’s customers and their contact information would 40
be relevant to the Union’s assessment of its grievance claims that Respondent had failed to
recognize the Union at specific locations and/or had failed to provide the Union with notice of
service-contract negotiations at any locations. The customer contracts themselves, to the extent
that they revealed customer information and effective dates, would additionally allow the Union
to assess the reliability of any information gleaned via the Respondent’s customer lists. Thus, I 45
find that the information sought by the Union was necessary to ascertain the nature, scope, and
JD(SF)–12–16
15
extent of the alleged contract violations underlying the Union’s March 23 grievance and
therefore was relevant and necessary to its function as a collective-bargaining agent. See SBC
Midwest, 346 NLRB 62 (2005) (union entitled to information reflecting extent of subcontracting
relevant to the remedy for any contract violation); Shoppers Food Warehouse, 315 NLRB 258
(union entitled to information regarding employer’s newly acquired non-union store to which 5
union suspected employer intended to spin off its operations); Island Creek Coal Co., 292 NLRB
480 (1989) (union entitled to information regarding subcontracting of work), enfd. 899 F.2d
1222 (6th Cir. 1990).
Respondent insists that, to resolve whether Respondent was obligated to provide 10
information related to the March 23 grievance, I must determine whether the Union has in fact
proven its majority support at the disputed locations. (See Resp. Br. at 13, 21) Essentially,
Respondent is asking me to arbitrate the grievance itself, by finding that the Union has failed to
prove its representative status pursuant to the BOMA Agreement’s terms. But to determine
whether the Union is entitled to the requested information, I need not decide whether a 15
contractual violation exists. Instead, I find that, because the March 23 grievance asserts that
Respondent is violating the contract by refusing to recognize all DMS employees performing
work as described by the BOMA Agreement, the Union is entitled to information that would
show the extent and scope of this alleged violation.
20
Respondent additionally argues that it should not be required to provide the customer
contracts and lists sought by the Union to assist in its handling of the March 23 grievance unless
and until an arbitrator finds that the BOMA Agreement in fact obligates Respondent to provide
notice of new service-contract negotiations under its Section (G)(3). Essentially, what
Respondent suggests is that the Union’s grievance be subject to a preliminary vetting by an 25
arbitrator before Respondent provides the Union with documents showing the extent and scope
of the alleged violation. Respondent’s desired result would run afoul of years of Board law
following the Supreme Court’s guidance in Acme Industrial Co., supra, by having the Board
acquiesce to an arbitrator’s finding on the relevance of the requested information and thereby
force the Union “to play a game of blind man’s bluff” in its pursuit of the March 23 grievance. 30
Finally, Respondent argues that I am precluded from finding a violation based on its
withholding the information related to the March 23 grievance, because this would amount to a
determination that Respondent was, in fact, obligated to provide notice pursuant to Section
(G)(3) of the BOMA Agreement. I disagree. Finding that the Union reasonably considered the 35
sought-after information as relevant to its position on the meaning of Section (G)(3) is wholly
different from agreeing that its position should ultimately prevail.14 Thus, “whether or not” the
BOMA Agreement is ever found to have been violated as Local 501 alleges, Respondent
violated the Act by failing and refusing to provide the requested information. Endo Painting
Service, 360 NLRB No. 61.40

14 Thus, unlike the cases cited by Respondent, finding a violation here does not, as Respondent
suggests, necessarily involve ‘choosing’ an interpretation of the BOMA Agreement. (See R. Br. at 15 and
cases cited therein).
JD(SF)–12–16
16
2. The Safety Audits and Reports
a. Respondent Unreasonably Delayed in Providing Safety Audits and Reports
For the Recognized Locations, in Violation of Sections 8(a)(5) and (1) of the Act
5
As noted, I have already found that Respondent’s safety audits and reports relating to
recognized locations to be presumptively relevant. However, I also find that Respondent, in
response to the Union’s request, provided all responsive documents in its possession. In this
regard, while I found certain portions of Magann’s testimony rehearsed and self-serving, his
demeanor when testifying that he had provided “everything [Respondent] had in the file” was 10
straight-forward and convincing (Tr. 238–39) However, this does not alter the fact that
Respondent took nearly 5 months to provide the reports.
An employer is required to respond to union requests for relevant information “as
promptly as possible.” See, e.g., Woodland Clinic, 331 NLRB 735, 736 fn.5 (2000); Samaritan 15
Medical Center, 319 NLRB 392, 398 (1995). In evaluating the promptness of an employer’s
response, the Board considers the complexity and extent of the information sought, its
availability, and the difficulty in retrieving the information. West Penn Power Co., 339 NLRB
585, 587 (2003), enfd. in relevant part 394 F.2d 233 (4th Cir. 2005). Presumably relevant
information must be “provided within a reasonable time, or, if not provided, accompanied by a 20
timely explanation.” Id. at 597 (citing FMC Corp., 290 NLRB 483, 489 (1988)).
Where the information sought is simple, close at hand and easily assembled, even a
relatively short delay of 2 or 3 weeks may be unreasonable. See, e.g., Capitol Steel & Iron Co.,
317 NLRB 809, 813 (1995) (2-week delay unreasonable), enfd. 89 F.3d 692 (10th Cir. 1996); 25
Aeolian Corp., 247 NLRB 1231, 1244 (1980) (3-week delay unreasonable). Here, the Union
sought presumptively relevant information which, by Magann’s own admission, was contained
within a single file. The Union made it clear precisely which documents it sought by providing
Respondent with a sample; Respondent raised no concern over the confidentiality of the reports
and provided no evidence that anything prevented it from responding to this request within a 30
matter of weeks, if not days.15 There is not a shred of evidence that Respondent’s conduct was
anything but straightforward delay.
While the Complaint contains no allegation that Respondent unreasonably delayed in
providing safety audits and reports, I find that this unalleged conduct is closely related to the 35
Complaint allegation that Respondent refused to provide this information, and additionally find
that the issue of respondent’s delay was fully litigated. See Care Manor of Farmington, 318
NLRB 330, 334 (1995) (where complaint alleged that employer, since date of union’s request,
has failed and refused to furnish the information requested, employer acted unlawfully by its
delay in providing some of the information and its refusal to provide the rest); see also American 40
Benefit Corporation, 354 NLRB 1039 (2010) (finding violation based on unalleged 5-month
delay in providing information). In this regard, it is noteworthy that Respondent’s sole witness,
Magann, was actually asked whether Respondent intentionally delayed in responding to the
Union’s information requests, and he denied any such conduct. (Tr. 258)

15 As noted, supra, although one of the safety audits Respondent did provide was marked
“Confidential,” Respondent has not raised any confidentiality defense with respect to the safety audits.
JD(SF)–12–16
17
Because I construe the complaint as currently drafted as broad enough to cover
Respondent’s untimely furnishing of the presumably relevant audit reports, I find that
Respondent violated the Act by unreasonably delaying in providing these documents.
5
b. Respondent Failed to Provide Safety Audits and Reports
For the Disputed Locations, in Violation of Sections 8(a)(5) and (1) of the Act
I also find that the Union had demonstrated the relevance of the requested safety audits
and reports for the disputed locations. As Ulloa explained, the safety audits and reports would 10
reveal the locations at which DMS employs individuals who work within the job classifications
set forth in the BOMA Agreement.16 As such, the safety audits and reports are relevant to the
Union’s handling of its March 23 grievance, in that they would allow the Union to assess
whether and, if so, to what extent, Respondent had violated the BOMA Agreement by refusing to
recognize the Union with respect to such employees. Accordingly, even though the requested 15
documents relate to work performed by individuals Respondent contends fall outside the Unit,
the Union has demonstrated their relevance of this information to its duty to police Section I(G)
of the BOMA Agreement. As such, I find that Respondent violated Sections 8(a)(5) and (1) of
the Act by failing to provide these documents.
20
3. The Employee Evaluations
a. Respondent Unreasonably Delayed in Providing Employee Evaluations
For the Recognized Locations, in Violation of Sections 8(a)(5) and (1) of the Act
25
As noted, the Union is presumptively entitled to information such as employee
evaluations. There also is no question that Respondent was less than timely or straightforward in
its response to the Union’s request for such documents. Magann’s meager explanation for
waiting months to tell Ulloa that DMS had no responsive documents—“we went back and forth
on quite a few things”—was unpersuasive.17 Moreover, he offered no explanation whatsoever 30
for later suggesting to Ulloa that Respondent’s personnel files might contain the employee
evaluations after all. Instead, at hearing, he reverted to his prior position that Respondent does
not conduct evaluations.

16 Although Respondent by its post-hearing brief claims that the Union sought “all audits for every
DMS location” (i.e., including those outside of Los Angeles and Orange counties), the documentary
evidence belies such a claim. By its very first request on March 23, the Union stated that it was
requesting documents relating to employees covered by the BOMA Agreement (see GC 6); later, after
Respondent provided audits related only to three locations, Ulloa reiterated that the Union’s position was
that the BOMA Agreement applied to all buildings within Los Angeles and Orange counties constructed
as of its effective date. (GC 14).
17 In its post-hearing brief, the General Counsel argues that Respondent violated the Act by
unreasonably delaying in informing the Union that it had no employee evaluations. However, the
Complaint alleges no such violation and, under similar circumstances, the Board has found fatal the
General Counsel’s failure to amend its complaint. See Raleys Supermarkets and Drug Centers, 349
NLRB 26, 28 (2007). I am constrained to follow that decision, and therefore decline to find a violation
based on Respondent’s failure to inform the Union that it had no employee evaluations.
JD(SF)–12–16
18
Based on Magann’s failure to explain, in credible fashion, either Respondent’s delay or
the contradictory positions it staked out in dealing with the Union on this issue, I do not credit
his testimony that Respondent does not have any documents constituting “employee evaluations”
for Unit employees. Indeed, Magann’s invitation to the Union to inspect Respondent’s personnel
files, which only extended over 5 months after the Union’s request, was premised on the 5
possibility that responsive documents did in fact exist. Thus, to the extent that Respondent has
admitted that there may be responsive documents contained within its personnel files, I find it
violated the Act by not timely offering the Union the opportunity to search these files.18
b. Respondent Was Not Obligated to Provide 10
Employee Evaluations for the Disputed Locations
I find that the General Counsel has failed to establish the relevance of the employee
evaluations related to the disputed locations. In his communications with Magann on the subject,
Ulloa indicated that the requested employee evaluations were relevant with respect to numerous 15
sections of the BOMA Agreement, including those dealing with recognition, grievances and
arbitrations. At hearing, however, no specific evidence was adduced on this subject, nor did the
General Counsel address it in its post-hearing brief. Under the circumstances, I find it difficult to
imagine what the Union may have reasonably believed to be the relevance of such documents
(assuming they exist) in connection with its efforts to police Article I, Section G of the BOMA 20
Agreement or any other representational purpose. Therefore, the Complaint allegation regarding
employee evaluations, insofar as it concerns the disputed locations, is dismissed.
4. Respondent’s Asserted Confidentiality Defense Lacks Merit
25
The Board has held that “[l]egitimate and substantial confidentiality and privacy claims
will be upheld, but blanket claims of confidentiality will not.” Pennsylvania Power Co., 301
NLRB 1104, 1105 (1991) (footnote omitted); see also Castle Hill Health Care Center, 355
NLRB at 1183–84 (generalized confidentiality concern unavailing as an excuse for refusing to
provide information). The Board recognizes that an employer’s claim of confidentiality must be 30
balanced against the union’s need for the information as it acts as the representative of its
employee-members. Midwest Division – MMC, LLC, 362 NLRB No. 193, slip op. at 3 (2015)
(citing Kaleida Health, Inc., 356 NLRB 1373, 1378-79 (2011) and Detroit Edison Co. v. NLRB,
440 U.S. at 318–19).
35
In order to trigger this balancing test, however, an employer must first timely raise and
prove that it has a legitimate confidentiality claim. Detroit Newspaper Agency, 317 NLRB at
1072–74 . As the Board has held, an employer “must establish confidentiality as a defense, not
merely raise a naked confidentiality claim,” Lasher Service Corp., 332 NLRB 834, 834 (2000);
merely stating that information is confidential without explanation is not sufficient. Watkins 40
Contracting, Inc., 335 NLRB 222, 226 (2001) (citation omitted). “Where the employer fails to
demonstrate a legitimate and substantial confidentiality interest, the union’s right to the
information is effectively unchallenged, and the employer is under a duty to furnish the
information.” Id. (citing A-Plus Roofing, 295 NLRB 967, 970 (1989)).

18 Although not alleged in the Complaint, I find that this delay violation, under the standard for de
facto amendments, discussed supra, is closely related to the Complaint allegations and was fully litigated.
JD(SF)–12–16
19
I find that Respondent has failed to meet its burden in demonstrating a legitimate
confidentiality interest in its customer contracts and lists. At hearing, Respondent’s sole witness,
Magann, identified several categories of information he claimed that Respondent currently
considers to be potentially dangerous in the hands of its competitors. However, at no time during 5
his testimony did he indicate that the concerns he described were, in fact, what motivated
Respondent to withhold the requested information.19 I find that Magann’s overall demeanor
during this portion of his testimony suggested that he was highly coached and his testimony
carefully tailored to avoid addressing this very subject.20 As a result, Respondent failed to
adduce any evidence (credible or otherwise) that it actually harbored legitimate concerns about 10
confidentiality at the time it responded to the Union’s information requests with generic sound-
bites such as “Confidential Business Information” and “proprietary information.”
A further indication that Respondent was not, in fact, concerned about the Union’s
receipt of documents designated as “confidential” is the lack of evidence of any practice or 15
procedure employed by Respondent for guarding the confidentiality of these documents. Indeed,
at least one such document (a safety inspection report) was actually provided by Respondent in
response to the Union’s request for safety audits and entered into the record, without any
confidentiality objection by Respondent. (See GC 17 at 11–18) Indeed, even considering
Magann’s testimony at face value, there is no evidence that Respondent has ever been concerned 20
about the Union mishandling its information, but only that Respondent’s customers—none of
whom testified—“may” want to keep their ownership information from the Union.
Based on the record as a whole, I conclude that Respondent failed to demonstrate that it
had a legitimate concern regarding confidentiality. See, e.g., Columbia Memorial Hospital, 363 25
NLRB No. 4, slip op. at *9 (2015) (finding respondent violated the Act where it failed to
establish that its contracts with nursing agencies were confidential); National Extrusion & Mfg.
Co., 357 NLRB 127, 157, fn.31 (2011) (finding respondent violated the Act where it failed to
establish that names of current or past customers were confidential).
30
I also note that, to the extent that Respondent’s unexplained references to “confidential”
and “proprietary” information triggered an obligation to bargain an accommodation over its
claimed confidentiality concerns, Respondent failed to satisfy its burden in this regard. It is
undisputed that Respondent never raised the subject of potential accommodations with the
Union, and never made any effort to bargain an accommodation of such concerns. Nor is there 35

19 Moreover, even considering Magann’s self-serving testimony at face value, Respondent failed to
demonstrate that DMS has ever been concerned that the Union would mishandle its information, but only
that it could be dangerous in the hands of Respondent’s competitors. While Magann testified that
Respondent’s customers “may” want to keep their ownership information from the Union, I regard this
pure conjecture on his part.
20 In this regard, it is notable that the vast majority of the questions put to Magann on direct
examination on this subject were phrased in the present tense (i.e., “Why does DMS not want to provide
[its customer contracts] to the Union?”; “Why do you not want to provide your financial information?”).
Tellingly, even when Respondent’s counsel asked Magann, in leading fashion, whether he had—at some
unspecified time in the past—considered parts of the customer contracts confidential, Magann responded
in the present tense: “I do consider [them] confidential.” See Tr. 253–56.
JD(SF)–12–16
20
any evidence that the Union has ever been unreliable in respecting such accommodations (in the
form of a confidentiality agreement, for example). Under the circumstances, Respondent’s
failure to test the Union’s willingness to hold the relevant information confidential demonstrates
that Respondent “raised confidentiality concerns as a reason to say no, not as concern that it
sought to accommodate.” National Extrusion & Mfg. Co., 357 NLRB at 158; see also Reiss 5
Viking, 312 NLRB at 622 fn.4.
Respondent argues that, should it be found to have violated the Act by refusing to provide
the Union with its customer contracts and lists, any remedial order should require Respondent to
provide these materials only after bargaining in good faith over a protective order addressing its 10
confidentiality concerns. Because I find that Respondent failed to meet its burden in establishing
that the information in question was, in fact, considered confidential, I decline to include such a
provision in my recommended order. See Watkins Contracting, Inc., 335 NLRB at 226 (citing
Lasher Service Corp., 332 NLRB 834).
15
III. CONCLUSIONS OF LAW
1. Respondent DMS Facility Services is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.20
2. International Union of Operating Engineers, Local 501, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act with 9(a) status under the Act.
3. The following employees of Respondent (Unit) constitute a unit appropriate for 25
purposes of collective bargaining within the meaning of Section 9(b) of the Act:
Individuals employed within the Counties of Los Angeles and Orange,
CA in the following classifications: Chief Engineer, Chief Operating
Engineer, Assistant Chief Engineer, Lead Engineer, One-Man Plant, 30
Certified Engineer, Non-Certified Engineer, Apprentice Engineer and
Maintenance Attendant, who perform work as described in the
Building Owners and Managers Association of Greater Los Angeles,
Inc. and Local 501, effective from November 1, 2011 until October 31,
2016. 35
4. At all material times, Respondent has recognized the Union as the designated
exclusive collective-bargaining representative of the Unit employees employed at the following
locations in California: 10889 Wilshire Blvd., Los Angeles; 475 Anton Blvd., Costa Mesa; 300
Corporate Pointe, Culver City; 700 North Alameda, Los Angeles; 1500 Quail St., Newport 40
Beach; 345 Foothill Rd., Beverly Hills; and 600 Wilshire Blvd., Los Angeles (the recognized
locations).
5. At all material times, the Union has demanded recognition as the designated
exclusive collective-bargaining representative of Unit employees employed by Respondent at all 45
locations, other than the recognized locations, throughout the Counties of Los Angeles and
JD(SF)–12–16
21
Orange in the State of California (the disputed locations). At all material times, Respondent has
refused to grant such recognition.
6. Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to
supply the following information to the Union:5
(a) Copies of audits and/or annual reports that include all man hours for engineering
services at each of the disputed locations.
(b) Copies of all Contracts between Respondent and its customers, suppliers, and
contractors at each of the disputed locations.10
(c) Any and all Customer Lists, including company names, address, phone number
and contact person, at each of the disputed locations.
7. Respondent has violated Section 8(a)(5) and (1) of the Act by unreasonably delaying
its provision to the Union of copies of audits and/or annual reports that include all man hours for15
engineering services at each of the recognized locations.
8. The unfair labor practices, described above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
20
IV. REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to effectuate 25
the policies of the Act. Specifically, I shall recommend that Respondent be ordered to supply the
requested information, set forth above, to the Union and additionally be ordered to make its
personnel files for its recognized locations available to the Union for review and copying.
On these findings of fact and conclusions of law and on the entire record, I issue the 30
following recommended:21
V. ORDER
The Respondent, DMS Facilities Services, Inc., its officers, agents, successors and assigns, shall35
1. Cease and desist from:
(a) Failing and refusing to timely and completely supply information to the Union
that is relevant and necessary to the Union’s performance of its duties as the exclusive collective-40
bargaining representative of its employees in the following appropriate unit:

21 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.
JD(SF)–12–16
22
Individuals employed within the Counties of Los Angeles and
Orange, CA in the following classifications: Chief Engineer, Chief
Operating Engineer, Assistant Chief Engineer, Lead Engineer,
One-Man Plant, Certified Engineer, Non-Certified Engineer,
Apprentice Engineer and Maintenance Attendant, who perform 5
work as described in the Building Owners and Managers
Association of Greater Los Angeles, Inc. and Local 501, effective
from November 1, 2011 until October 31, 2016.
(b) In any like or related manner interfering with, restraining, or coercing employees 10
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Furnish to the Union, in a timely and complete manner, the following 15
information:
1. Copies of audits and/or annual reports that include all man hours for
engineering services at each of the disputed locations.
2. Copies of all contracts between Respondent and its customers, suppliers, and 20
contractors at each of the disputed locations.
3. Any and all customer lists, including company names, address, phone number
and contact person, at each of the disputed locations.
(b) Within 14 days after service by the Region, post at its California job locations at 25
10889 Wilshire Blvd., Los Angeles; 475 Anton Blvd., Costa Mesa; 300 Corporate Pointe,
Culver City; 700 North Alameda, Los Angeles; 1500 Quail St., Newport Beach; 345 Foothill
Rd., Beverly Hills; and 600 Wilshire Blvd., Los Angeles, copies of the attached notice marked
“Appendix.”22 Copies of the notice, on forms provided by the Regional Director for Region 31,
after being signed by the Respondent’s authorized representative, shall be posted by the 30
Respondent 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 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 Respondent shall duplicate and 35
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 April 9, 2015.
(c) Within 21 days after service by the Region, file with the Regional Director for
Region 31 a sworn certification of a responsible official on a form provided by the Region 40
attesting to the steps that the Respondent has taken to comply.

22 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)–12–16
23
It is further ordered that the Complaint is dismissed insofar as it alleges violations of the Act not
specifically found.
Dated: Washington, D.C. March 18, 2016
5
Mara-Louise Anzalone
Administrative Law Judge
10
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 the National Labor Relations Act
and has ordered us to post and abide by 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 benefits and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail and refuse to timely and completely supply information to the Union that is
relevant and necessary to the Union’s performance of its duties as the exclusive collective-
bargaining representative of its employees in the following appropriate unit:
Individuals employed within the Counties of Los Angeles and Orange, CA
in the following classifications: Chief Engineer, Chief Operating
Engineer, Assistant Chief Engineer, Lead Engineer, One-Man Plant,
Certified Engineer, Non-Certified Engineer, Apprentice Engineer and
Maintenance Attendant, who perform work as described in the Building
Owners and Managers Association of Greater Los Angeles, Inc. and Local
501, effective from November 1, 2011 until October 31, 2016.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.
WE WILL furnish to the Union, in a timely and complete manner, the following information:
1. Copies of audits and/or annual reports that include all man hours for engineering
services at each of the disputed locations.
2. Copies of all contracts between Respondent and its customers, suppliers, and
contractors at each of the disputed locations.
3. Any and all customer lists, including company names, address, phone number and
contact person, at each of the disputed locations.
DMS FACILITY SERVICES
(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.
11500 West Olympic Boulevard, Suite 600
Los Angeles, California 90064–1824
Hours: 8:30 a.m. to 5 p.m.
310–235–7351
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/31-CA-151920 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, 310–235–7424.