Service Employees Local 254 (Women and Infants Hospital)

National Labor Relations Board - Board Decisions

Oct 15, 1997

324 N.L.R.B. 743 (N.L.R.B. 1997)

743
324 NLRB No. 126
SERVICE EMPLOYEES LOCAL 254 (WOMENS & INFANTS HOSPITAL)
1 On February 12, 1997, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The Respondent filed excep-
tions and a supporting brief. The General Counsel filed exceptions,
a supporting brief, and a brief in support of portions of the judge’s
decision. Intervenor Massachusetts Bay Community College filed a
brief in support of the judge’s decision. Both the General Counsel
and the Intervenor filed answering briefs to the Respondent’s excep-
tions.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 The General Counsel excepts to the judge’s failure to order the
Respondent to post a Spanish translation of the notice to employees.
We find merit in the exception and shall amend the Order to include
this remedy.
4 Member Higgins would additionally rely on the judge’s Moore
Dry Dock analysis in finding that the Respondent violated Sec.
8(b)(4)(ii)(B) when picketing Women and Infants Hospital.
Local 254, Service Employees International Union,
AFL–CIO and Women and Infants Hospital
and Aid Maintenance Co., Inc. Cases 1–CC–
2497, 1–CG–48, and 1–CC–2523
October 15, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HIGGINS
The principal issues in this consolidated case1 are
whether (1) the Respondent violated Section 8(b)(4)(i)
and (ii)(B) of the Act by picketing and handbilling a
hospital in Rhode Island and a community college in
Massachusetts and (2) whether the community college
and a cleaning contractor constitute joint employers of
employees who perform janitorial services at the col-
lege.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions, as modified below,
and to adopt the recommended Order as modified.3
1. The judge found that the purpose of the Respond-
ent’s picketing and handbilling at Women and Infant’s
hospital, as admitted by Business Agent Victor Lima,
was to force the neutral hospital to cease doing busi-
ness with the primary, Intercity Maintenance. Based on
this direct evidence of a prohibited secondary objec-
tive, the judge found that the Respondent violated Sec-
tion 8(b)(4)(ii)(B). General Teamsters Local 126 (Redi
Mixed Concrete), 200 NLRB 253, 254-255 (1972);
Teamsters Local 315 (Sante Fe), 306 NLRB 616, 631
(1992). We affirm these unfair labor practice findings
based on agent Lima’s admission. We find it unneces-
sary to reach the judge’s additional reliance on the evi-
dentiary criteria set forth in Sailors Union (Moore Dry
Dock), 92 NLRB 547 (1950), in finding that the Re-
spondent’s picketing of the hospital had an unlawful
secondary object.4
2. Although we agree with the judge that the Re-
spondent’s picketing and handbilling at both the hos-
pital and the college violated Section 8(b)(4)(ii)(B), we
disagree with his conclusion that the Respondent also
violated Section 8(b)(4)(i)(B) at the hospital. Section
8(b)(4)(i)(B) proscribes inducing or encouraging em-
ployees of a secondary employer to strike. Laborers
Local 332 (C.D.G., Inc.), 305 NLRB 298, 305 (1991).
With respect to the picketing and handbilling at the
college, the judge correctly dismissed the 8(b)(4)(i)(B)
allegation in the absence of evidence that such conduct
was designed to induce or encourage any neutral em-
ployer’s employees to refuse to work. We find that the
same lack of evidence requires dismissal of the
8(b)(4)(i)(B) allegation with respect to the Respond-
ent’s picketing and handbilling at the hospital.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local 254, Service Em-
ployees International Union, AFL–CIO, Boston, Mas-
sachusetts, its officers, agents and representatives, shall
take the action set forth in the Order as modified.
1. Delete paragraph 1(b) and reletter the subsequent
paragraphs.
2. Substitute the following for paragraph 2(a) and
reletter the subsequent paragraph.
‘‘(a) Within 14 days after service by the Region,
post at its union office in Boston, Massachusetts copies
of the attached notice marked ‘‘Appendix.’’12 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 1, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent in English and Spanish immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees and members are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
‘‘(b) Within 14 days, sign and return to the Regional
Director sufficient copies of the notice in English and
Spanish for posting by Women and Infants Hospital
and Massachusetts Bay Community College, if willing,
at all places where notices to employees are customar-
ily posted.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1995 unless otherwise indicated.
APPENDIX
NOTICE TO MEMBERS
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 or-
dered us to post and abide by this notice.
WE WILL NOT engage in any strike, picketing, or
other concerted refusal to work at Women and Infants
Hospital, or any other health care institution, without
notifying, in writing, Women and Infants Hospital, or
such other health care institution and the Federal Medi-
ation and Conciliation Service, not less than 10 days
prior to such action, of the intention.
WE WILL NOT restrain or coerce Women and Infants
Hospital, or any other person engaged in commerce or
in an industry affecting commerce, where an object
thereof is to force Women and Infants Hospital, or any
other person from doing business with Intercity Main-
tenance Company.
WE WILL NOT threaten to picket, picket or by any
similar or related conduct which coerces or restrains
Massachusetts Bay Community College, or any other
person engaged in commerce or in an industry affect-
ing commerce where an object thereof is to force or
require Massachusetts Bay Community College, or any
other person engaged in commerce or in an industry
affecting commerce, to cease doing business with Aid
Maintenance Co.
LOCAL 254, SERVICE EMPLOYEES
INTERNATIONAL UNION, AFL–CIO
Laura A. Sacks, Esq., for the General Counsel.
Gabriel O. Dumont Jr. and John D. Burke, Esqs., of Boston,
Massachusetts, for the Respondent.
Kristen L. Cooney, Esq., of Providence, Rhode Island, for the
Charging Party, Aid Maintenance Co., Inc.
Henry G. Stewart, Esq. (Palmer & Dodge), of Boston, Mas-
sachusetts, for the Intervenor, Massachusetts Bay Commu-
nity College.
DECISION
STATEMENT OF THE CASES
ARTHUR J. AMCHAN, Administrative Law Judge. These
cases were tried in Boston, Massachusetts, on October 21–
24, 1996. The charge in Case 1–CC–2497 was filed on
March 30, 1995, by Women and Infants Hospital (the Hos-
pital), Providence, Rhode Island.1 It alleges that Local 254,
Service Employees International Union, AFL–CIO (Respond-
ent) violated Section 8(b)(4) (i) and (ii) (B) of the National
Labor Relations Act (the Act) in picketing the Hospital to
force it to cease doing business with its janitorial contractor,
Intercity Maintenance Company. On March 31, the Hospital
filed a charge in Case 1–CG–48 alleging that Respondent
also violated Section 8(g) of the Act in failing to provide 10
days’ notice of its intent to engage in such picketing. The
complaint issued by the Acting Regional Director for Region
1 in these matters was on May 5, 1995.
On November 13, 1995, Aid Maintenance Company, Inc.
filed the charge in Case 1–CC–2523. As amended, it alleges
that Respondent violated Section 8(b)(4)(i) and (ii)(B) in
threatening to picket and in picketing at the Massachusetts
Bay Community College (MBCC) campuses in Wellesley
and Framingham, Massachusetts, in order to force MBCC to
cease doing business with Aid Maintenance Co. Inc. (Aid
Maintenance). Aid Maintenance is under contract with
MBCC to provide janitorial services at both campuses. The
complaint in this case was filed on January 29, 1996.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, Respondent, and Intervenor,
Massachusetts Bay Community College, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Women and Infants Hospital is an inpatient and outpatient
treatment center located in Providence, Rhode Island. It an-
nually derives revenues in excess of $250,000 and purchases
and receives goods valued in excess of $5000 directly from
entities located outside of Rhode Island. I find that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and a health care institution
within the meaning of Sections 2(14) and 8(g) of the Act.
Aid Maintenance Company, whose principal office is in
Pawtucket, Rhode Island, provides janitorial services to nu-
merous businesses in New England. It performs services in
excess of $50,000 outside of the State of Rhode Island and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Massachusetts Bay
Community College is a political subdivision of the State of
Massachusetts and therefore not an employer within the
meaning of the Act. However MBCC is a ‘‘person’’ within
the meaning of Sections 2(1) and 8(B)(4)(i) and (ii)(B).
Respondent, Local 254 is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Cases 1–CC–2497 and 1–CG–48: Local 254’s
Picketing at Women and Infants Hospital
On the morning of Thursday, March 30, 1995, 12 to 20
pickets associated with Local 254, and led by General Orga-
nizer Donald Coleman, appeared at Women and Infants Hos-
pital in Providence, Rhode Island. The Union had not pro-
vided prior notice to the Hospital that the picketing would
occur. The pickets were stationed on three sides of the Hos-
pital’s main building on the sidewalks bordering the parking
lot. Some of the signs they carried proclaimed ‘‘Women and
Infants Ticks Us Off’’ at the top and contained a picture of
a large bug below it. Others read, ‘‘We demand respect.’’
The signs also mentioned the pickets’ disapproval of Inter-
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745SERVICE EMPLOYEES LOCAL 254 (WOMENS & INFANTS HOSPITAL)
2 Intercity employees worked primarily at night. However, at least
one worked during the daytime when the picketing occurred.
3 During the hearing there was some testimony regarding a letter
(G.C. Exh. 5) sent to Respondent by the Hospital and whether it had
been received by the Respondent. Although, the contents of the letter
and its receipt are not important to my resolution of the alleged vio-
lation, I make the following factual determination in the event the
Board deems it necessary to resolve the matter on other grounds.
On March 31, 1995, the Hospital’s attorney sent Edward Sullivan,
Local 254’s business manager, a letter which stated:
This letter is to inform you that Intercity Maintenance Co.
does not perform work or have employees present at Women &
Infants Hospital, 101 Dudley Street, Providence, Rhode Island.
Despite Coleman’s testimony that he does not recall whether he
received the letter, its receipt is established by an affidavit he exe-
cuted on April 4, 1995 (G.C. Exh. 6). On p. 5 of the affidavit he
states that ‘‘[o]n about March 31 the Union received a letter from
the Hospital.’’ The affidavit identifies the letter as Exh. 3 to the affi-
davit, a designation which appears at the bottom of G.C. Exh. 5
[G.C. Exh. 5 was also identified as G.C. Exh. 7. There is no G.C.
Exh. 7]. This letter, I find, was received by the Union on or about
the day it was sent.
4 Local 254 objects to any company doing business with Aid
Maintenance and it has picketed other Aid customers.
5 At the time of the hearing the contract for fiscal year 1996–1997
had not been awarded. Aid Maintenance’s 1995–1996 contract had
been indefinitely extended.
city Maintenance Company (Intercity) which provided jani-
torial services to the Hospital but not at the main building
itself.
Leaflets were distributed that made it clear that Local
254’s dispute with the Hospital was that it had contracted
with Intercity. For example, one stated, ‘‘Women and Infants
Ticks Us Off’’ at the top. However, it went on to state that
Intercity Maintenance Company is an infestation that sucks
the blood of Latino workers because Intercity does not pay
a living wage, holiday pay, or health insurance. It also pro-
claimed that Intercity exposes its cleaners to chemical and
biological hazards (G.C. Exh. 3).
One of the buildings at which Intercity employees worked
was diagonally across the street from the main building. The
others were located a block or two away (G.C. Exh. 8; Tr.
98).2 Respondent’s organizer, Donald Coleman, had been in-
formed that Intercity employees worked exclusively at loca-
tions other than the main building. He obtained this informa-
tion from Stan Israel, an official of SEIU Local 1199, which
represents employees of the Hospital. Coleman called Paul
Kennedy, a manager of the Hospital’s engineering depart-
ment, to determine whether the information he received from
Israel was accurate. Kennedy apparently told him that Inter-
city delivered laundry and messages for him (G.C. Exh. 6).3
After the picketing commenced, Victor Lima, a field rep-
resentative for the Union, told hospital personnel that the
pickets were at the Hospital to protest its contract with Inter-
city and that the Union wanted Intercity’s presence at the
Hospital terminated (Tr. 119). Several pickets told Marilyn
Walsh, the Hospital’s vice president for human resources,
that they intended to stay at the Hospital until it ceased using
Intercity’s services.
Although Intercity did not clean the Hospital’s main build-
ing, some of its supplies, such as bag liners, hand soap, and
paper goods were kept there. Hospital staff may also have
used Intercity employees as couriers to take messages from
the main building to other buildings. Intercity employees
came to the main building until March 31, 1995, when the
Hospital told Intercity not to send its employees to the main
building any more. Picketing at the main building continued
on March 31 and April 3–5 (Monday–Wednesday of the fol-
lowing week).
On Friday, April 7, 1995, Respondent distributed a leaflet
thanking Women and Infants employees and patrons for their
support (G.C. Exh. 4). The leaflet stated that Respondent had
agreed to cease its ‘‘public activities’’ in response to notifi-
cation from Hospital Vice President Walsh on April 5, that
Intercity had no employees working at Women and Infants.
B. Case 1–CC–2523: Local 254’s Activities at
Massachusetts Bay Community College
Massachusetts Bay Community College (MBCC) has 3500
students at two campuses in Wellesley and Framingham,
Massachusetts. It employs 130 faculty members and other
professional staff as well as tradesmen such as electricians
and maintenance personnel. It contracts for such items as
food service, snow removal, some security personnel, and
cleaning of its buildings.
In the past 16 years MBCC has had three to four different
cleaning contractors. The cleaning contract has been awarded
to a new contractor generally every 4 to 5 years. In October
1994, the cleaning contract was awarded to Aid Maintenance
Company, a nonunion firm based in Pawtucket, Rhode Is-
land. Local 254 has taken strong exception to MBCC’s con-
tractual relationship with Aid Maintenance.4 It claims that
Aid has failed to comply with several statutes regarding
wages and working conditions, as well as immigration laws.
It apprised MBCC of Aid’s obligation to pay a prevailing
wage rate under Massachusetts law and Aid’s failure to post
a performance bond required in the contract bidding docu-
ments.
In its initial contract Aid charged MBCC on a hourly
basis. Local 254 lobbied the college not to renew its contract
with Aid. When the contract was bid for the fiscal year be-
ginning July 1, 1995, it was awarded to Aid Maintenance on
a fixed price basis.5 On June 30, the day after the contract
was awarded, Edward Sullivan, Local 254’s business man-
ager, called Laurie Taylor, MBCC’s dean for administrative
services. Sullivan told Taylor that MBCC could expect pick-
ets if it did not cease doing business with Aid Maintenance.
On July 5, 1995, Dean Taylor met with Victor Lima, a
field representative of Local 254. Lima told her that if the
college did not cancel its contract with Aid Maintenance
there would be a picket line at the college the next day. He
handed Taylor a note which stated, ‘‘Re: Aid Maintenance.
There will be a picket line Thursday morning in front of en-
trance’’ (G.C. Exh. 14). Representatives of the Union ap-
peared at the pedestrian entrance of the Wellesley campus on
July 6, carrying signs and handing out leaflets. The signs car-
ried messages such as ‘‘We demand respect,’’ ‘‘Aid Mainte-
nance sucks Latino blood,’’ ‘‘Aid Maintenance is anti-
Latino,’’ and ‘‘Aid is a bloodsucker.’’
Local 254 continued to display placards and hand out leaf-
lets at both the Wellesley and Framingham campuses from
July 6 to Thanksgiving 1995 (Tr. 153, 618–622, 642–643).
Representatives of the Local returned to distribute leaflets for
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746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Viera generally visits both MBCC campuses every Wednesday.
He meets with college administrators and with Aid’s first-shift em-
ployees. He has visited the second- and third-shift cleaners only two
to three times in the past year.
several days in June 1996. Many of the leaflets attacked the
college and its officials, as well as Aid Maintenance. One
leaflet, for example, read, ‘‘Mass Bay Community College
Ticks Us Off.’’ It alleged a number of misdeeds on the part
of Aid Maintenance and then asked, ‘‘Why Does MASS
BAY Subcontract to this Plague?’’ (Jt. Exh. 7K.) Other leaf-
lets directly attacked college officials. One quoted James
Morash, dean of finance and administrative services at Fra-
mingham, as saying, ‘‘[I]f they were that bad, they wouldn’t
be in business.’’ Then the leaflet stated, ‘‘Well, Mr. Morash
. . . They wouldn’t be in business if it weren’t for dirty
grease bags like you!!!’’ (Jt. Exh. 7B.)
On July 21, 1995, Respondent’s organizer, Donald Cole-
man, met with College Deans Laurie Taylor and James
Morash. Coleman told them that Local 254’s objective was
to get the college to cancel its contract with Aid Maintenance
by exerting pressure on MBCC through its students and fac-
ulty (Tr. 154–155, also see Tr. 650–652). He indicated to
Taylor and Morash that the picketing would continue unless
MBCC ceased doing business with Aid.
The Relationship between MBCC and Aid
Maintenance Co.
The major thrust of Local 254’s defense to the complaint
in this matter is that its activities directed towards MBCC
were primary rather than secondary in character and that
MBCC was a joint employer of the Aid Maintenance janitors
who worked at its campuses. This defense is based in large
part on the degree of interaction between college personnel
and these janitors.
Aid Maintenance, which is based in Pawtucket, Rhode Is-
land, employs over 200 people and has cleaning contracts
with about 50 customers. These include Stanley Bostitch
Company, which manufacturers staples; and Milton Acad-
emy, a well-known private school in Massachusetts. Direct
responsibility for its contract with MBCC belongs to Russ
Bizier, Aid’s operations manager, and Manny Viera, one of
four road supervisors who reports to Bizier. Viera is respon-
sible for 15 to 20 accounts or customers.
On 10 to 15 of its contracts, Aid employs one or more
foremen, whose sole responsibility is to oversee the work of
other Aid employees. At the other sites employees work
without an on-site supervisor. There are no foremen assigned
to either MBCC campus. On its first shift at MBCC (7–1:45
p.m.), Aid has two janitors at Wellesley and one at Fra-
mingham. On the second shift (2–8:45 p.m.) there is one jan-
itor at each campus. During the third shift (9–3:45 a.m.)
there are three Aid employees at Wellesley and one at Fra-
mingham.
Except for occasional visits from Viera and very infre-
quent visits from Bizier, there are no supervisory personnel
from Aid Maintenance at MBCC while Aid employees are
working.6 On the third shift at Wellesley, Viera has des-
ignated Carlos (or Regino) Sequen as his pointman, a posi-
tion similar to leadman. Sequen is supposed to make sure
that the third shift does its job and report to Viera if anybody
is not doing their work. There is no indication that MBCC
has been aware of Sequen’s status as ‘‘pointman’’ prior to
the hearing in this matter.
Viera has also described an employee named Robinson
Martinez as ‘‘kind of my point man during the day’’ at
Wellesley. Nevertheless, it is readily apparent that most of
Aid’s employees at Wellesley and Framingham work without
any direct supervision from Aid most of the time. Similarly,
there are no employees of MBCC that directly supervise
these Aid Maintenance employees on a constant basis.
On the other hand, MBCC exercises a degree of control
over the Aid Maintenance employees that work on its prop-
erty. The current fixed price contract requires that one clean-
er be on site for each shift when the college is open. The
college has required that most of Aid’s tasks be performed
on the night shift when the college’s buildings are empty.
(See, e.g., R. Exh. 22.) MBCC has also by contract, reserved
the right to remove any Aid employee which it feels is not
performing his or her job to the college’s satisfaction.
In exercising MBCC’s contractual rights, Dean Laurie
Taylor has instructed Aid to replace two janitors who worked
at Wellesley because they were not able to communicate
with college personnel in English. Steve Landers, the assist-
ant director of facilities for the Framingham campus, has in-
structed Aid Maintenance to change personnel on at least
two occasions. In May, 1995, he asked Aid’s operations
manager, Russ Bizier, to replace a third-shift cleaner, who
was observed watching television for 2 hours by a security
guard (R. Exh. 1). Landers also asked Bizier to replace the
second-shift cleaner in March 1996, as part of an effort to
curb petty thefts at the Framingham campus (R. Exh. 19).
As Respondent notes at page 36 of its brief, removal from
MBCC results in approximately a 50 percent reduction in an
Aid employee’s wages—if they are assigned to a different
Aid account. This is so because Local 254 has induced the
college to insist that Aid pay its employees working at
MBCC, a ‘‘prevailing wage’’ as required by Massachusetts
law (Tr. 283–285). The prevailing wage is about twice what
Aid pays its employees working for other customers.
Prior to July 1, 1995, Aid Maintenance was paid by
MBCC on the basis of the number of hours its employees
worked. While the contract was on an hourly basis, college
administrators, particularly Steve Landers at Framingham,
devoted a considerable amount of time and energy to assur-
ing that Aid employees were actually working during the
hours for which MBCC was billed. Since June 1, 1995,
Aid’s contract with MBCC has been a fixed rate rather than
an hourly contract. College personnel such as Landers and
Philip Russell, associate director of facilities at Wellesley,
continue to monitor the performance of Aid Maintenance
employees to determine whether Aid is performing its serv-
ices in accordance with its contract.
Additionally, college administrators have recurring direct
contact with the Aid Maintenance janitors working at both
campuses. MBCC provides a beeper to one janitor on the
first and second shifts at the Wellesley campus. College per-
sonnel use the beeper to contact Aid Maintenance janitors in
order to direct them to clean up spills and clean or stock a
restroom with supplies. There is conflicting testimony as to
how often Aid cleaners were directed to do specific tasks by
college personnel. A former Aid cleaner named Jose Cruz
testified that when he worked the second shift at Wellesley,
Dean Taylor beeped him three to four times a day. Taylor
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747SERVICE EMPLOYEES LOCAL 254 (WOMENS & INFANTS HOSPITAL)
7 I use the qualification ‘‘to any significant extent’’ because Dean
Taylor did, for example, instruct Aid employees to put dust covers
over the fire alarm sensors before buffing the floors. She did this
so that the dust would not activate the alarms (Tr. 246–247). There
are also provisions in Aid’s contract as to when and how certain
tasks, such as window washing are to be performed. I do not believe
that this involvement in how Aid employees performed their tasks
is sufficiently significant to make a difference in determining wheth-
er or not MBCC is a joint employer of these janitors.
8 Respondent at p. 37 of its brief notes that Philip Russell,
MBCC’s associate director of facilities at Wellesley, testified that he
has hired Aid Maintenance employees. Although the transcript does
indicate this at Tr. 585, LL. 21–24, I am certain from the context
of the question and record as a whole that either Russell misunder-
stood the question or that his answer was incorrectly transcribed.
9 Landers was obviously confused when answering a question
about his use of the sign-in sheets after July 1, 1995 (Tr. 545). I
find that there is no substantial evidence that any significant use has
been made of the sheet since that date—except as noted above.
testified she probably summoned Cruz on a total of three to
four occasions during the entire 2-month period he last
worked the second shift. I cannot completely credit the testi-
mony of Cruz regarding to the frequency that he received di-
rection from Taylor.
However, I do find that Aid employees were directed to
clean spills, stock bathrooms, or perform similar ‘‘emer-
gency’’ tasks by MBCC personnel at least several times a
week, and possibly on a daily basis. In addition to the direc-
tion received by Taylor, Aid Maintenance employees were
asked to perform specific tasks by other college officials on
both the first and second shifts at Wellesley and Fra-
mingham. (See, e.g., the testimony of Steve Landers at Tr.
524–528 and Phil Russell at Tr. 593.) There is no evidence
that MBCC personnel directed Aid employees as to how
their work was to be performed to any significant extent.7
On the other hand, the supplies for the janitors at MBCC
are provided by Aid Maintenance. When supplies run low,
the janitors contact Aid’s road supervisor, Manny Viera. One
janitor on each shift usually contacts Viera daily, so that he
has assurance that the proper number of Aid employees are
at the MBCC campuses for every shift and that their work
has been accomplished. Janitors at MBCC are hired, fired,
and disciplined by Viera.8 He also determines the shifts for
Aid personnel at MBCC—subject to the college’s right of re-
fusal.
Respondent also points to MBCC’s use of cleaner’s sign-
in sheets as an indicia of MBCC’s status as a joint employer
(R. Br. at 48–50). MBCC has utilized a separate sign-in
sheet for janitors for many years. The time at which a janitor
signed in is in many cases verified by an MBCC security of-
ficer. When Aid’s contract was hourly, these sign-in sheets
were checked by MBCC to determine whether it was receiv-
ing the service for which it was paying. Since the contract
was awarded on an fixed rate basis, MBCC has made very
limited use of these sheets. They may be used to check
cleaners’ hours for special events for which MBCC is still
billed hourly. They may also be used for reference to deter-
mine who is in the building in the case of an emergency and
in assisting MBCC in determining whether Aid is paying its
employees the prevailing wage. In some respects they appear
to be kept largely as a vestige of the prior cleaning con-
tracts.9
III. ANALYSIS AND CONCLUSIONS
A. Respondent Violated Section 8(b)(4)(i) and (ii)(B),
and 8(g) at Women and Infants Hospital
Respondent concedes that it violated Section 8(g) of the
Act in failing to provide the Hospital with 10 days’ notice
of its picketing (R. Br. at 3). Thus, the remaining issue be-
fore me is whether the picketing also violated Section
8(b)(4)(i) and (ii)(B).
Section 8(b)(4) makes it an unfair labor practice for a
labor organization or its agents
(i) to engage in, or induce or encourage any individ-
ual employed by any person engaged in commerce to
engage in, a strike or refusal in the course of his em-
ployment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, mate-
rials, or commodities or to perform any services; or (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 employer or self-em-
ployed person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of any
other producer, process, or manufacturer, or to cease
doing business with any other person . . . Provided,
That nothing contained in this clause (B) shall be con-
strued to make unlawful, where not otherwise unlawful,
any primary strike or primary picketing.
Victor Lima, a field representative of Respondent, admit-
ted to hospital personnel that the objective of its picketing
at Women Infants Hospital was to pressure the hospital to
cease doing business with Intercity Maintenance Co. This is
also apparent from the context in which the picketing oc-
curred.
I infer that Coleman was aware from his conversations
with Israel and Kennedy that Intercity’s activities at the main
building were minimal. This strengthens the inference that
the objective of the picketing was to pressure the hospital to
cease doing business with Intercity. That this was the
Union’s intent is also indicated by its leaflet of April 7,
1995, announcing fulfillment of its objectives (G.C. Exh 4).
Respondent argues that it did not violate Section 8(b)(4)
because it complied with the criteria for lawful common situs
picketing set forth by the Board in Sailors Union (Moore
Dry Dock Co.), 92 NLRB 547 (1950). However, compliance
with these criteria do not make picketing lawful per se. To
the contrary, these standards are merely tools for determining
whether picketing is primary or secondary. Teamsters Local
83 (Allied Concrete), 231 NLRB 1097 (1977). Picketing that
is secondary violates the Act. Where other evidence, such as
an admission of the Respondent, establishes that picketing is
intended to force a secondary employer to cease doing busi-
ness with the primary employer, the picketing violates Sec-
tion 8(b)(4)(i) and (ii)(B) regardless of whether the Moore
Dry Dock criteria have been complied with. General Team-
sters Local 126 (Ready Mixed Concrete), 200 NLRB 253,
254-55 (1972).
Moreover, Respondent did not comply with Moore Dry
Dock, supra. In that case the Board held that common situs
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748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
picketing directed at the primary employer must meet the fol-
lowing standards:
1. The picketing must be limited to times when employees
of the primary are on the secondary employer’s premises.
2. At the time of the picketing the primary employer must
be engaged in its normal business at the situs.
3. Picketing must be limited to places reasonably close to
the situs;
4. The pickets must clearly disclose that the dispute is
with the primary employer alone.
Respondent picketed the main building. Intercity’s normal
business is cleaning buildings. It engaged in its normal busi-
ness only at the satellite locations. The fact that supplies
were stored at the main building and that Intercity employees
may have been utilized occasionally to take messages and/or
laundry to and from that building, does not establish that
Intercity engaged in its normal business at that site.
The fact that one of the buildings cleaned by Intercity was
diagonally across the street does not render Respondent’s
picketing compliant with the third condition set forth in
Moore Dry Dock. In applying the Moore Dry Dock stand-
ards, the controlling consideration for the Board has been to
require that the picketing be conducted so as to minimize its
impact on neutral employees insofar as this can be done
without substantial impairment of the effectiveness of the
picketing in reaching the primary employees. Electrical
Workers IBEW Local 970 (Intertox America), 306 NLRB 54,
57–58 (1992). The record indicates no reason why picketing
could not have been confined to the buildings cleaned by
Intercity. Thus, picketing in front of the main building is not
reasonably close to the site of the dispute as contemplated
by the Moore Drydock decision.
Finally, the Union did not make it clear that its dispute
was with Intercity alone. The picket signs in prominently
proclaiming that ‘‘Women and Infants ticks us off’’ were in-
tended to create the impression that Respondent’s dispute
was with the Hospital. For the reasons stated above, I con-
clude that Respondent violated Section 8(b)(4)(i) and (ii)(B),
as well as 8(g), in picketing at the main building of Women
and Infants Hospital between March 30 and April 5, 1995.
Further, I conclude that Respondent’s leafleting, to the extent
that it was done in conjunction with its illegal picketing, also
violated Section 8(b)(4)(i) and (ii)(B). Teamsters Local 315
(Santa Fe), 306 NLRB 616, 631 (1992).
B. MBCC is not a Joint Employer of the Aid
Maintenance Janitors Working at its Campuses
In Laerco Transportation, 269 NLRB 324, 325 (1984), the
Board framed the joint employer issue:
The joint employer concept recognizes that two or
more business entities are in fact separate but that they
share or codetermine those matters governing the essen-
tial terms and conditions of employment. Whether an
employer possesses sufficient indicia of control over
petitioned-for employees employed by another em-
ployer is essentially a factual issue. To establish joint
employer status there must be a showing that the em-
ployer meaningfully affects matters relating to the em-
ployment relationship such as hiring, firing, discipline,
supervision, and direction.
The Board concluded that Laerco was not a joint employer
of employees provided to it by CTL, a company in the busi-
ness of supplying labor to the trucking and warehousing in-
dustry. CTL employees worked at Laerco warehouses and
other sites. As in the instant case, CTL sent no supervisors
to the Laerco sites and CTL employees were supervised to
some extent by Laerco. However, the Board in concluding
that Laerco was not a joint employer found that this super-
vision, although sometimes daily, was minimal and of an ex-
tremely routine nature.
In Southern California Gas Co., 302 NLRB 456, 461
(1991), the Board declined to find Southern California Gas,
to be a joint employer of janitorial employees on its prop-
erty. As in the instant case, the janitorial company sent no
supervisors to the site. The Board concluded that the clean-
ing company’s leadman was its supervisor.
The Board opined that a finding of joint employer status
is warranted where the customer ‘‘meaningfully affects mat-
ters related to the employment relationship, such as hiring,
firing, discipline, supervision and direction.’’ It concluded
that the record in Southern California Gas demonstrated only
rare instances of direction of janitorial employees by Gas
company personnel, which it deemed insufficient to charac-
terize Southern California as a joint employer. Instead it con-
sidered the instances of gas company supervision as steps
taken to assure receipt of contracted services and to prevent
disruption of its own operations. The Board placed some sig-
nificance on the fact that the janitorial company had con-
tracts with other businesses.
However in Holyoke Visiting Nurses Assn., 310 NLRB
684 (1993), the Board found the customer of a temporary
labor agency to be a joint employer. The decision was en-
forced by the United States Court of Appeals for the First
Circuit which rejected the argument that the case could not
be meaningfully distinguished from Laerco Transportation,
Holyoke Visiting Nurses Assn v. NLRB, 11 F.3d 302, 306–
397 (1st Cir. 1993). The court approvingly cited the Sixth
Circuit Court of Appeals’ observation that a slight factual
difference between two cases might tilt a case towards a
finding of joint employment.
Among the factors which caused the Board to find joint
employment in Holyoke (HVNA) were the following:
HVNA had the right to refuse to accept the services
of any O’Connell employee it did not want.
HVNA could effectively remove an O’Connell em-
ployee from any of its sites.
The Association retained the right to schedule, as-
sign, and direct O’Connell employees.
Holyoke’s supervisors not only had the right to give
directions to and assign O’Connell’s employees; they
did so.
O’Connell nurses reported to HVNA supervisors at
the end of each day and contacted HVNA supervisors
if there was a problem with any patient.
Many of these factors are present in the instant case, al-
though not necessarily to the same degree. It is also impor-
tant to note that in the Holyoke case neither the Board nor
the court of appeals found it dispositive that HVNA did not
direct the manner in which O’Connell nurses performed their
tasks or that O’Connell had contracts with businesses other
than HVNA.
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749SERVICE EMPLOYEES LOCAL 254 (WOMENS & INFANTS HOSPITAL)
One distinction between Holyoke and the instant case is
that there the two companies in question employed the same
types of employees. Holyoke Visiting Nurses Association
(HVNA) and O’Connell, the labor referral agency with
which it contracted, both employed nurses. Other factors dis-
tinguishing Holyoke from the instant case are that O’Connell
nurses and HVNA nurses received the same breaks and lunch
periods. Also O’Connell nurses got their supplies from
HVNA. I would also note that it was a complaint from
HVNA to O’Connell that led to the adverse action against
the charging party. She was thought to have joined a protest
by unionized nurses of HVNA. A complaint from HVNA to
that effect led O’Connell to refrain from referring her to
HVNA for a period of almost 2 weeks.
I conclude that the instant case is closer to the situations
in Laerco Transportation, supra, and Southern California
Gas Co., supra, than to the Holyoke Visiting Nurses case.
The contractual provisions affecting when work must be per-
formed are not indicia of joint employer status. It is not sur-
prising that MBCC would require that cleaning be done at
times most convenient for the college, or that a cleaner be
available at all times to handle emergencies. This does not
give the college the type of control over individual employ-
ees that indicates an employer-employee relationship.
Similarly, the direct supervision of Aid employees by col-
lege officials was limited to assuring that it received con-
tracted services, or situations posing an immediate disruption
of MBCC’s operations. Thus, Dean Taylor asked cleaners to
clean up spills immediately to prevent students, staff, or visi-
tors from getting hurt, rather than going through Aid’s head-
quarters in Pawtucket. Likewise, Steve Landers directed
cleaners to stop tasks that interfered with the passage of stu-
dents to their classes.
Recurring direction of cleaners by college personnel was
necessitated by the absence of on-site supervision from Aid
Maintenance. However, the Board in Southern California
Gas Co., supra, has rejected this as a dispositive factor. Rec-
ognizing that this is a matter of degree I conclude that the
extent of MBCC’s control over Aid Maintenance employees
was not sufficient to make MBCC their joint employer.
C. Respondent Violated Section 8(b)(4)(ii)(B) at MBCC
Prior to the appearance of the pickets, the Union through
Edward Sullivan and Victor Lima threatened college officials
that they would picket if MBCC continued to do business
with Aid Maintenance. These threats violate Section
8(b)(4)(ii)(B) regardless of whether picketing actually took
place.
Respondent denies that it engaged in picketing at MBCC
(Tr. 639); I conclude, however that its activity at the college
campuses did constitute picketing. On their arrival at MBCC
Local 254 representatives carried and wore signs and passed
out leaflets at the entrances to student parking lots, pedes-
trian entrances to the college, and at a car pool entrance (Tr.
153, 618–622, 642–643). Respondent’s activities are similar
in some respects to those in Service Employees Local 399
(Delta Air Lines), 293 NLRB 602 (1989), which is cited at
page 33 of Respondent’s brief. As in the Delta Air Lines
case, there is no indication that Local 254 either intended or
caused interruptions in deliveries to MBCC or refusals to
work by employees of MBCC or any other person. However,
in the Delta case the union’s activities were limited to
handbilling while here they included activities which con-
stitute picketing under Board case law.
Local 254’s stated objective in the instant case was to in-
duce MBCC students and faculty to apply pressure to the
college to cease doing business with Aid Maintenance. How-
ever, there is no indication that Respondent’s message was
limited to students and faculty either by virtue of the location
of the picketing or by the content of Respondent’s message.
Picketing has been defined as conduct ‘‘which may induce
action of one kind or another irrespective of the nature of the
ideas which are being disseminated,’’ Service Employees
Local 87 (Trinity Maintenance), 312 NLRB 715, 743 (1993),
citing Teamsters Local 802 v. Wohl, 315 U.S. 769, 776
(1942) (Douglas, J., concurring). The carrying and/or wear-
ing of signs and placards places Respondent’s activities be-
yond the mere dissemination of ideas. Whether intended or
not, the signs may induce action by employees or students
without regard to their message. Thus, Respondent’s activi-
ties at MBCC—at least prior to Thanksgiving of 1995—were
prohibited by section 8(b)(4)(ii)(B).
Finally, Donald Coleman’s threat of July 21, to continue
picketing unless the college ceased doing business with Aid,
independently violated Section 8(b)(4)(ii)(B).
D. Respondent Did Not Violate Section 8(b)(4)(i)(B)
at MBCC
There is no evidence that Respondent’s signs, placards, or
handbills urged either employees or students not to enter
MBCC’s campus buildings. There is also no evidence that
Respondent sought to encourage any employee of the college
or of any supplier of goods or services to the college to ei-
ther strike or not make deliveries to the college. From the
leaflets in the record it does not appear that Local 254 was
urging anyone to act other than the college officials respon-
sible for the contract with Aid Maintenance. Therefore, I rec-
ommend dismissal of the 8(b)(4)(i)(B) allegation at MBCC,
Service Employees Local 87 (Trinity Maintenance), 312
NLRB at 745 fn. 92.
CONCLUSIONS OF LAW
1. By failing to provide 10 days’ notice to Women and In-
fants Hospital and the Federal Mediation and Conciliation
Service of its intent to picket the Hospital, Respondent has
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(g) and Section 2(6) and (7) of the
Act.
2. By picketing at the Women and Infants Hospital be-
tween March 30 and April 5, 1995, in order to force the
Hospital to cease doing business with Intercity Maintenance
Company, Respondent violated Section 8(b)(4)(i) and (ii)(B).
3. By handbilling at Women and Infants Hospital in con-
junction with illegal picketing as set forth in paragraph 2,
above, Respondent violated Section 8(b)(4)(i) and (ii)(B).
4. Massachusetts Bay Community College (MBCC) is not
a joint employer of janitorial employees of Aid Maintenance
Company who work at MBCC.
5. By threatening on June 30 and July 5, 1995, to picket
Massachusetts Bay Community College unless it ceased
doing business with Aid Maintenance Co., Respondent vio-
lated Section 8(b)(4)(i) and (ii)(B).
6. By picketing Massachusetts Bay Community College
(MBCC) between July 6, 1995, and late November 1995, in
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750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 By ‘‘broad order’’ I assume the General Counsel means an
order extending to primary employers other than Intercity and Aid
Maintenance, Glass Workers Local 1892 (Frank J. Rooney, Inc.),
141 NLRB 106, 107 (1963).
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
12 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.’’
order to coerce MBCC into ceasing to do business with Aid
Maintenance Co., Respondent violated Section 8(b)(4)(ii)(B).
7. By threatening on July 21, 1995, to continue its picket-
ing at MBCC unless the college ceased doing business with
Aid Maintenance, Respondent violated Section 8(b)(4)(ii)(B).
8. Unless specifically found, Respondent engaged in no
other unfair labor practices.
REMEDY
Having found that the 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 the policies of the Act. Although the General
Counsel seeks a broad order,10 I do not think such an order
has been shown to be appropriate in the instant cases. A
broadly worded cease-and-desist order is warranted if a re-
spondent has demonstrated a ‘‘proclivity’’ to violate the Act
or if a respondent has engaged in ‘‘such egregious or wide-
spread misconduct so as to demonstrate a general disregard
for . . . fundamental statutory rights.’’ Iron Workers Local
378 (N. E. Carlson Construction), 302 NLRB 200 (1991);
Hickmott Foods, 242 NLRB 1357 (1979).
Although the instant cases are part of broader campaign by
Local 254 aimed at certain nonunion cleaning contractors, I
have no basis on the record before me for concluding that
its activities at other locations violate the Act. Therefore, I
do not find that Respondent has demonstrated a ‘‘proclivity’’
to violate the statute. The only instance of which I am aware
that Respondent has violated section 8(b)(4)(i) and (ii)(B)
previously is Service Employees Local 254 (Janitronic, Inc.),
271 NLRB 750 (1984). This instance of misconduct is too
remote in time from the instant proceeding to support a find-
ing that Respondent has a proclivity to violate the Act, Oper-
ating Engineers Local 12 (Hensel Phelps), 284 NLRB 246
fn. 2 (1987).
Similarly, I conclude that Respondent’s conduct does not
evidence such a blatant disregard of the Act to be sufficiently
egregious to warrant a broad order. This case is distinguish-
able from Service Employees Union Local 77 (Thrust IV),
264 NLRB 628 (1982). In that case the union evidenced a
complete disregard for whether its activities complied with
the law by continuing to picket the entire jobsite after being
informed that the primary employer used only a reserved
gate. In the instant case, Respondent had some legitimate
reasons to question the information it received regarding the
work locations of Intercity employees. Indeed, the Hospital’s
letter to Respondent of March 31, 1995 (G.C. Exh. 5), is am-
biguous, if not somewhat misleading. It could be read as
claiming that Intercity employees did not work at any loca-
tion controlled by Women and Infants Hospital, which was
not true. Given this confusion and the Union’s cessation of
picketing on April 5, 5 days after it started, I think a broad
order is not warranted by Respondent’s conduct at Women
and Infants Hospital.
Likewise, I find the Union’s conduct at MBCC to be in-
sufficiently egregious to warrant a broad cease-and-desist
order. Given the Board’s decision in Holyoke Visiting Nurses
Association, supra, Respondent had a reasonable argument
for the proposition that MBCC was a joint employer of Aid
Maintenance employees. Although I have found otherwise,
the Union’s position was not frivolous and, therefore, I con-
clude that a broad order is not warranted on the basis of its
activities at the college alone or in conjunction with its ac-
tivities at Women and Infants Hospital, see, e.g., Iron Work-
ers Local 118 (Tutor-Saliba Corp.), 285 NLRB 162 fn. 2
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Local 254, Service Employees Inter-
national Union, AFL-CIO, Boston, Massachusetts, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Engaging in any strike, picketing, or other concerted
refusal to work at Women and Infants Hospital, or any other
health care institution, without notifying, in writing, Women
and Infants Hospital, or such other health care institution and
the Federal Mediation and Conciliation Service, not less than
10 days prior to such action, of that intention.
(b) Inducing or encouraging, by picketing, or any other
similar means, any individual employed by a person engaged
in commerce, or in an industry affecting commerce, to en-
gage in a strike or a refusal in the course of his or her em-
ployment to perform services, where an object thereof is to
force Women and Infants Hospital, or any other person to
cease doing business with Intercity Maintenance Co.
(c) Restraining or coercing Women and Infants Hospital,
or any other person engaged in commerce or in an industry
affecting commerce, where an object thereof is to force
Women and Infants Hospital, or any other person from doing
business with Intercity Maintenance Co.
(d) Threatening to picket, picketing, or any similar or re-
lated conduct which coerces or restrains Massachusetts Bay
Community College, or any other person engaged in com-
merce or in an industry affecting commerce where an object
thereof is to force or require Massachusetts Bay Community
College, or any other person engaged in commerce or in an
industry affecting commerce, to cease doing business with
Aid Maintenance Co.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
union office in Boston, Massachusetts copies of the attached
notice marked ‘‘Appendix.’’12 Copies of the notice, on forms
provided by the Regional Director for Region 1 after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
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751SERVICE EMPLOYEES LOCAL 254 (WOMENS & INFANTS HOSPITAL)
cluding all places where notices to employees and members
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, 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 mail,
at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent
at any time since March 30, 1995.
(b) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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