AT & T v. N.L.R.B.
| Decision Date | 04 December 1995 |
| Docket Number | AFL-CI,1938,Nos. 1796,D,1939,I,s. 1796 |
| Citation | 67 F.3d 446 |
| Parties | 150 L.R.R.M. (BNA) 2385, 131 Lab.Cas. P 11,429 AT & T, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EXECUTIVE CLEANING SERVICES, INC. and Thru State Maintenance, Inc., Respondents, International Union of Operating Engineers, Local 68,ntervenor. ockets 94-4232, 95-4018, 95-4020. |
| Court | U.S. Court of Appeals — Second Circuit |
Francis X. Dee, Newark, NJ (Stephen F. Payerle, Carpenter, Bennett & Morrissey; and Anna R. O'Connor, Berkeley Heights, NJ, of counsel), for Petitioner-Cross-Respondent.
David Habenstreit, National Labor Relations Board, Washington, DC (Frederick L. Feinstein, General Counsel, Linda Sher, Acting Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Peter D. Winkler, Supervisory Attorney, and John Truesdale, Office of Executive Secretary, of counsel), for Respondent-Cross-Petitioner.
Daniel Mannix, Caldwell, NJ, for Respondent Executive Cleaning Services, Inc.
Melvin L. Gelade, Liberty Corner, NJ (Apruzzese, McDermott, Mastro & Murphy, of counsel), for Respondent Thru State Maintenance, Inc.
Steven Gaechter, Verona, NJ (Kroll & Gaechter, of counsel), for Intervenor.
Before: OAKES, WINTER and MAHONEY, Circuit Judges.
This is a petition by AT & T for review, and a cross-application by the National Labor Relations Board (the "Board") for enforcement, of an order in an unfair labor practice case. Executive Cleaning Servs., Inc., 315 NLRB 227, 1994 WL 549297 (1994). The case was brought by Local 68 of the International Union of Operating Engineers, AFL-CIO ("Local 68" or "the union"), on March 3, 1989, alleging that AT & T was a joint employer of the employees of its cleaning contractor, respondent Executive Cleaning Services ("ECS"), at the One Tower Center building in East Brunswick, New Jersey. One Tower Center was part of a complex owned by Tower Center Associates ("TCA"), which was not named as a respondent, and the building was occupied by a subsidiary of AT & T, AT & T Communications, Inc., as a sub-tenant. The complaint filed by the Board's general counsel, as amended, claimed that AT & T violated sections 8(a)(3) and (5) of the National Labor Relations Act (the "Act"), 29 U.S.C. Secs. 158(a)(3) & (5) (1988), by terminating respondent ECS and subcontracting its cleaning services contract to another cleaning contractor without affording the union an opportunity to bargain over the decision. The complaint further alleged that TCA, which had actually contracted with and terminated ECS, was acting as AT & T's agent in doing so; that AT & T violated section 8(a)(5) of the Act by repudiating an oral agreement with the union concerning terms of the successor collective bargaining agreement; that both AT & T and ECS violated section 8(a)(1) of the Act, 29 U.S.C. Sec. 158(a)(1), by soliciting the employees of ECS to file a decertification petition; and that the contractor that replaced ECS violated section 8(a)(2) of the Act, 29 U.S.C. Sec. 158(a)(2), by assisting in recognizing another local.
The matter was tried before Administrative Law Judge Howard Edelman (the "ALJ") who, on May 21, 1992, found that "the control exercised over ECS employees by AT & T falls ... far short of the type of control necessary to establish a joint employer," but that AT & T was a joint employer nonetheless because it had negotiated wage rates for ECS employees. Executive Cleaning Servs., 315 NLRB at 236, 1994 WL 549297. Although AT & T was only a 49 percent partner in TCA, the ALJ also concluded that TCA was AT & T's agent. He then found that AT & T and ECS, as joint employers, as well as the successor contractor, had violated the Act in all respects alleged except one. He rejected the claim that AT & T and ECS had breached an alleged 1985 oral agreement concerning the terms of a successor to the 1986-89 collective bargaining agreement. Accordingly, he recommended that AT & T and ECS be ordered, among other things, to bargain collectively with the union with respect to ECS's employees and to reinstate with back pay the employees who were laid off when the ECS contract was terminated. Id. at 237, 1994 WL 549297.
On September 30, 1994, a three-member panel of the Board affirmed the ALJ's findings and conclusions that AT & T was a joint employer and that TCA was its agent. Id. at 227, 1994 WL 549297. It also agreed with the ALJ's conclusion that the decision to lay off the employees and subcontract the work to a new subcontractor cleaning service was a mandatory subject of bargaining, and that, by refusing to bargain over this decision AT & T and ECS as joint employers violated sections 8(a)(1) and (5) of the Act. Id. The Board modified the remedy to require AT & T and ECS not only to bargain with the union but also to reestablish ECS as the cleaning services contractor at One Tower Center. Id. at 228, 1994 WL 549297. AT & T duly petitioned this court to review the Board's order, and the Board filed a cross-application for enforcement. We grant the petition to review, and we reverse the Board's order and deny the Board's cross-application for enforcement.
One Tower Center is part of the Tower Center complex in East Brunswick, New Jersey, and was owned by TCA, a joint venture of which Tower Developers owned 51 percent and AT & T Resource Management Corp. owned 49 percent. The complex was managed by Alan B. Landis Management ("ABL Management"), pursuant to a delegation of authority by TCA. Since January 1986, AT & T Communications, Inc. has been the sole occupant of One Tower Center as a sub-tenant under a lease between AT & T Resource Management Corp. and TCA. Cleaning services were provided by ECS pursuant to a contract between ECS and TCA, dated February 24, 1986, and terminable on notice. ECS had a collective bargaining agreement with Local 68 as the representative of its employees at the building, the agreement running for three years from March 1, 1986, to February 28, 1989. TCA, as landlord, was responsible for furnishing building services, though the lease gave the tenant the right initially to select service contractors subject to TCA's consent. The lease also provided that TCA's excess costs of furnishing services were to be passed on to the tenant as "additional rent" for "operating expenses." The provision on the selection of service contractors was modified as to the building in question, however, by agreement between the ABL property manager for the entire complex, representing TCA as landlord, and the AT & T Communications, Inc. building manager. Under the modification, AT & T relinquished its right to select building service contractors, since ABL Management, concerned about the successful management and marketing of the complex, wished to have complete control over the selection of contractors for the entire complex. The ABL property manager accordingly selected ECS for the building on behalf of ABL Management and TCA. AT & T's only involvement in the selection of ECS was a reference from Thomas Stomski of AT & T Resource Management, who was responsible for operations at another building at which ECS provided cleaning services. However, the AT & T Communications, Inc. building manager opposed the selection of ECS, and the ABL Management manager independently selected ECS as cleaning services contractor. On February 24, 1986, ECS entered into a written contract with TCA to provide cleaning services for the building. AT & T was neither a party to the contract nor involved in its negotiation.
The only basis for the ALJ's determination that AT & T and ECS were joint employers was "AT & T's negotiation for the essential labor rates at the 1986-1989 collective bargaining agreement between ECS and the Union." Executive Cleaning Servs., 315 NLRB at 235, 1994 WL 549297. The ALJ relied on a December 1985 luncheon meeting among Vincent Giblin, the union's business manager, Thomas Stomski, AT & T's building manager, and Jack Larkin, Sr., president of Larkin Services Corp., a mechanical services contractor seeking the contract at the building. Giblin testified that the meeting was arranged by Larkin and that, toward the end of the meeting, after social conversation, they discussed the building.
According to Giblin, Stomski said he wanted Larkin and ECS to be the contractors but that, for that to happen, the union's current area rates would have to be reduced. Stomski also said, according to Giblin, that he wanted ECS to be non-union; however, Giblin refused, and he and Stomski thereafter agreed that both Larkin and ECS would be union but that the union's current wage rates would be rolled back. Giblin admitted that no discussion of specific wage rates, or of other terms and conditions of employment for Larkin or ECS employees, took place at this December 1985 meeting; instead, the meeting ended with the understanding that Giblin and Larkin would work out reduced labor rates and take their proposals back to Stomski. It is undisputed that nobody from ECS was at this meeting.
While Giblin agreed to accept a rollback in wage rates, he testified that, in return, Stomski agreed that sometime in the future the rollback would be balanced by a "catch-up" in the rates. Such a "catch-up" was in fact negotiated by Larkin and Giblin and included in the written collective bargaining agreement between Larkin and Local 68. However, no "catch-up" provision for ECS was included in the collective bargaining agreement which Giblin prepared for ECS, or otherwise put in writing. The ALJ found that "there is insufficient evidence to establish the existence of a catchup agreement to be contained in any future collective-bargaining agreement executed between the Union and AT & T as a joint...
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