Exterminators & Fumigators Un. Loc. 155

National Labor Relations Board - Board Decisions

Feb 17, 1970

181 N.L.R.B. 177 (N.L.R.B. 1970)

EXTERMINATORS & FUMIGATORS UN. LOC. 155
Exterminators and Fumigators Union Local 155,
Service Employees International Union , AFL-CIO'
and Abco Exterminating Corp . Case 20-CC- 192
February 17, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On December 12, 1969, Trial Examiner Robert
Cohn issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursui nt to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and supporting
brief, and the entire record in this case, and hereby
adopts the Trial Examiner's findings, conclusions,
and recommendations.
ORDER
Pursuant to Section 1Q(c) of the National Labor
Relations Act, as amended, the Board hereby adopts
as its Order the Recommended Order of the Trial
Examiner, and orders that the Respondent,
Exterminators and Fumigators Union Local 155,
Service Employees International Union, AFL-CIO,
its officers, agents, and representatives, shall take
the action set forth in the Trial Examiner's
Recommended Ordei.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN , Trial Examiner : Upon a charge filed
June 12, 1969,' by Abco Exterminating Corp. (herein
Abco), the General Counsel of the National Labor
Relations Board , by the Regional Director of Region 29
of the Board , issued a complaint on August 28 against
Exterminators and Fumigators Union Local 155, Service
Employees International Union , AFL-CIO (herein Local
155 or Respondent ). The complaint alleges, in essence,
that the Respondent had demanded that Abco recognize it
as the exclusive bargaining representative of Abco's
'This is the correct name of the Respondent Union , the correct name of
the neutral employer herein is LeFrak Management Co
177
employees, and that in furtherance of said demand,
Respondent threatened to picket a customer of Abco
unless said customer ceased using the services of Abco. It
is further alleged that, by such conduct, the Respondent
unlawfully threatened, coerced, and restrained the
customer, and engaged in said conduct with an object to
force and require the customer and other persons to cease
doing business with Abco, all in violation of Section
8(b)(4)(ii)(B) of the National Labor Relations Act, as
amended (herein the Act)
Respondent duly filed an answer in which it generally
denied the allegations of the complaint and demanded
dismissal thereof.
Pursuant to notice, a hearing was held before me in
Brooklyn, New York, on September 29, in which all
parties were afforded full opportunity to be heard, to
introduce evidence, to examine and cross-examine
witnesses, to present oral argument, and to file briefs.
Counsel for the General Counsel and counsel for the
Respondent engaged in oral argument at the close of the
hearing, but no posthearing briefs were filed.
Upon the entire record in the case, including my
observation of the witnesses and their demeanor while
testifying, and the argument of counsel, I make the
following:
FINDINGS OF FACT
1. COMMERCE
Abco, whose principal office and place of business is
located in Brooklyn, New York, is engaged in providing
fumigating and exterminating services to residential and
commercial customers in New York and New Jersey.
During an annual period, its gross revenues amount to
approximately $300,000, however, the record herein does
not reflect a breakdown of such amount as respects
in-State and out-of-State customers. Nevertheless, the
General Counsel introduced into evidence commerce
information respecting the operation of one of Abco's
principal customers, LaFrak Management Company of
Regal Park, New York (herein LaFrak). LaFrak is
engaged in the business of managing multiple dwelling
units, and is a company over which the Board would
assert jurisdiction since its annual gross revenues exceed
$500,000 (which revenue is derived from buildings owned
and controlled by LaFrak and serviced by Abco) and who,
in turn, does over $50,000 worth of business with
Consolidated Edison Company of New York, Inc., a
utility over whom the Board has asserted jurisdiction.'
Since the Board has ruled that in deciding secondary
boycott cases, it would construe broadly the language
"engaged in commerce or in an industry affecting
commerce" appearing in Section 8(b)(4), "in order to
fulfill the manifest congressional purpose to give the
widest coverage to secondary boycott provisions," ' and
since the secondary person herein is engaged in commerce
under the Board's jurisdictional standards, 4 I find that it
will effectuate the purposes of the Act to assert
jurisdiction herein, and will so recommend.
All dates hereinafter refer to the calendar year 1969, unless designated
otherwise
'See Consolidated Edison Co of New York, Inc v N L R B, 305
US 197
'See Sheet Metal Workers International Association . Local Union No
299, AFL-CIO (S M Kisner and Sons ), 131 NLRB 1196, 1199
'Siemon 's Mailing Service, 122 NLRB 81
181 NLRB No. 28
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The evidence discloses that the Respondent represents,
for purposes of collective bargaining with employers,
employees in the building maintenance industry. I find
that the Respondent herein, is, and has been at all times,
material, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Facts
According to the testimony of Carl Fisher, president of
Abco, two representatives of the Respondent approached
him in March and April respecting representation of his
employees by Respondent for the purposes of collective
bargaining. Thus, in March, Fisher testified that he had
two conversations with a Mr. McNally in or about Abco's
place of business. S On the first occasion, McNally asked
Fisher to recognize the Respondent, but the latter replied
that he had nothing to do with it. On a later occasion he
approached McNally on the street outside the
establishment and asked him what he was doing there.
The latter replied that he had come to organize Abco
Fisher told him that he could picket all that he wanted to
but he did not want McNally to harass his men.'
Following the conversation, McNally commenced giving
out flyers to employees.
Near the end of April, Fisher was approached by a
representative of Local 3108 of the Carpenters union who
showed him some 20 authorization cards signed by
employees of Abco. A couple of days later, on April 28,
Abco signed a collective-bargaining agreement with Local
3108 as the collective-bargaining representative of Abco's
employees.
Shortly after April 30, Abco received a letter from the
New York State Labor Relations Board to the effect that
the Respondent had filed a petition with that board
requesting to be certified as the representative of Abco's
employees for the purpose of collective bargaining, and
notifying Abco that a conference was scheduled to be held
on the matter on Wednesday, May 7. Fisher testified that
he attended such conference, at which representatives of
both Respondent and Local 3108 appeared, and at which
time the representative of Respondent claimed authority
to be recognized by the Company as representative of its
employees on the basis of some authorization cards. After
some discussion, Fisher was advised that he would be
subsequently informed of the outcome of the meeting.
Shortly after June 9, he received a letter from the New
York State Board to the effect that the petition had been
withdrawn and the case was closed.
In May, 'Fisher had a conversation with Respondent's
president, Patrick Carroll, outside the offices of Abco.
Carroll asked Fisher why the latter did not join his Union,
advising that the men would be better off. Fisher told
Carroll that he had a contract with another union and
that there was nothing he could do. Carroll then stated
that he had enough influence to "really destroy" Abco by
'McNally is identified in the record herein as "Walter McNally, General
Organizer , Local 155, Service Employees International Union , affiliated
with AFL-CIO." The uncontradicted testimony is that he sought to
organize employees on behalf of that labor organization , and also sought
employer cooperation in that endeavor . I find him to be an agent of
Respondent , as alleged in the complaint
'Fisher testified that his employees had complained that McNally had
been following and harassing them.
virtue of his Union's connection with shop stewards in
nursing institutions and hospitals and that, generally,
Fisher would not be happy if he did not "join up" with
Respondent. Carroll also claimed that he had a list of
Abco's customers and that he knew "where to hurt me the
most." '
On or about April 21, McNally visited the offices of
LaFrak and spoke with its vice president, Gerry Richter.
McNally gave Richter his card indicating that he was, as
noted, a general organizer of Respondent, and inquired
whether LaFrak did business with Abco. When Richter
replied in the affirmative, McNally asked whether Richter
knew that Abco was nonunion Richter said he did not,
and inquired what that had to do with LaFrak McNally
responded that he understood that "all your help in your
buildings are union," to which Richter said that is correct.
McNally continued, "Well, you might be subjected to
some problems with regard to the picketing." Richter
promised to look into the matter and McNally inquired
whether he could check with Richter the following week.
Richter said no that he would, as stated, "look into the
matter." As McNally was leaving, he submitted to
Richter a list containing exterminating companies whose
employees were presumably represented by the
Respondent (G. C. Exh. 6).
There is no evidence that any picketing of LaFrak's
buildings occurred, and it is conceded that Abco is
continuing to service LaFrak in the same manner, and in
the same volume of business, as it was servicing in May.
Analysis and Concluding Findings
The only allegation of violation alleged in the complaint
is the alleged threat by McNally on or about April 21 to
picket LaFrak unless LaFrak stopped using the services of
Abco.
Section 8(b)(4)(ii)(B) of the amended Act provides as
follows-
8(b) It shall be an unfair labor practice for a labor
organization or its agents -
*
(4)(ii) to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is:
(B) forcing or requiring any person to cease using„
selling, handling, transporting, or otherwise dealing
in the products of any other producer, processor, or
manufacturer, or to cease doing business with any
other person, or forcing or requiring any other
employer to recognize or bargain with a labor
organization as the representative of his employees
unless such labor organization has been certified as
'The foregoing findings (except for the formal notifications from the
New York State Board) are based upon the testimony of Fisher, which I
credit It is true , as Respondent argues, that the witness was somewhat
confused as to dates and the exact sequence of events However,
Respondent chose not to offer testimony to explain or negate the matter
asserted , although it was not shown that either Carroll or McNally was
unavailable, indeed , Carroll was identified as being present in the hearing
room during the hearing Under these circumstances , including demeanor
considerations , I credit Fisher's testimony Also, I find Carroll, as
president of Respondent , to be an agent thereof as alleged in the
complaint
EXTERMINATORS & FUMIGATORS UN. LOC 155 179
the representative of such employees under the
provisions of section 9: Provided, That nothing
contained in this clause (B) shall be construed to
make unlawful, where not otherwise unlawful, any
primary strike or primary picketing.
I have heretofore found that during March, April, and
May, Respondent sought to organize the employees of
Abco and made demands upon its officials for recognition
as bargaining representative of its employees. " Having
been unsuccessful in achieving its objective directly, the
Respondent sought to bring pressure upon one of Abco's
customers by a threat to picket unless the customer ceased
doing business with Abco. In oral argument, Respondent
claims that the statement of McNally to Richter
constituted free speech; i.e., a mere attempt to inform a
member of the public of the facts in the situation. I
disagree. The undenied evidence is that after McNally
informed Richter that Abco's employees were nonunion
and that his (Richter's) employees were Union, McNally
made the statement that Richter "might be subjected to
some problems with regard to the picketing." Certainly
such language constituted a threat to picket unless LaFrak
ceased doing business with Abco. This conclusion is
confirmed by McNally's giving Richter a list of union
exterminating contractors with whom LaFrak could do
business and thereby avoid such consequences.
By the foregoing conduct, I° find that McNally, as
Respondent's agent, threatened, coerced, and restrained a
secondary employer within the meaning of the
above-quoted section of the Act. '
I further find that an object of McNally's remarks to
an official of the secondary employer was to force such
secondary employer to cease doing business with Abco, all
in violation of Section 8(b)(4)(ii)(B) of the Act.10
IV. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Contrary to
the contentions of counsel for the General Counsel
expressed in oral argument, I do not believe that the
record herein, consisting of only one instance of violation,
and no evidence of prior history of unlawful secondary
activity by this Respondent, warrants the broad order
which he requested.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening, coercing, or restraining LaFrak with
an object of forcing or requiring LaFrak to cease doing
business with Abco, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(4)( ►i)(B)
of the Act.
4. The aforesaid unfair labor practices, having occurred
in connection with the operations of Abco and LaFrak as
set forth above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States, and substantially effectuate commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I issue the following:
RECOMMENDED ORDER
Exterminators and Fumigators Union Local 155,
Service Employees International Union, AFL-CIO, its
officers, agents and representatives, shall:
1. Cease and desist from threatening, coercing, or
restraining LaFrak Management Company or its officers,
where an object thereof is to force or require LaFrak
Management Company or its officers to cease doing
business with Abco Exterminating Corp.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post in the Respondent Union's business offices and
meeting halls, copies of the attached notice marked
"Appendix." " Copies of said notice, on forms provided
by the Regional Director for Region 29, after being duly
signed by the Respondent Union's authorized
representative, shall be posted by Respondent Union
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted Reasonable steps shall be taken by it
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Sign and mail sufficient copies of said notice to the
Regional Director for Region 29 for posting, LaFrak
Management Company and Abco Exterminating Corp.
willing, at all locations where notices to their respective
employees are customarily posted.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. IS
CONCLUSIONS OF LAW
1. Abco and LaFrak are employers within the meaning
of Section 2(2) of the Act.
'The evidence discloses , as heremabove set forth , that the demands were
accompanied by threats made to the primary employer. However, since
such threats were not alleged in the complaint as a violation of the Act, I
make no findings thereon
'A threat to picket clearly constitutes restraint and coercion , particularly
where the secondary employer 's employees are union members, whether or
not actual picketing occurred . Enterprise Association , Local 638, United
Association of Journeymen and Apprentices of the Plumbing and
Pipefltting Industry, etc (Allen-Stevens Corp ), 129 NLRB 555; District
65, Retail, Wholesale A Department Store Union (Eastern Camera Bc
Photo Corp ), 141 NLRB 991, 996-997
"See International Hod Carriers, etc, Local 1140 ( Gilmore
Construction Company), 127 NLRB 541, particularly fn 6 thereof dealing
with the legislative history of the 1959 amendments to the Act
"In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 .48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 29, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT threaten, coerce, or restrain LaFrak
Management Company or its officers, with an object of
forcing or requiring the LaFrak Management Company
or its officers to cease doing business with Abco
Exterminating Corp.
EXTERMINATORS AND
FUMIGATORS UNION
LOCAL 155, SERVICE
Dated By
EMPLOYEES
INTERNATIONAL UNION,
AFL-CIO
(Labor Organization)
NOTICE TO MEMBERS
(Representative) (Title)
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 Board's Office,
16 Court Street, Fourth Floor, Brooklyn, New York
11201, Telephone 212-596-3535