Local 32B-32J, SEIU

National Labor Relations Board - Board Decisions

Apr 9, 1980

248 N.L.R.B. 1067 (N.L.R.B. 1980)

LOCAL 32B-32J, SEIU 1067
Local 32B-32J, Service Employees International
Union, AFL-CIO and The Dalton Schools.
Case 2-CC-1575
April 9, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On November 6, 1979, Administrative Law
Judge Harold Bernard, Jr., issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Local 32B-32J,
Service Employees International Union, AFL-
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge found that both Dalton employees who
perform janitorial work do so only at buildings not serviced by Allied.
The record shows, however, that one of the two Dalton employees does
some limited work at the 61 East 91st Street building, which is serviced
by Allied employees. This factual error is hereby corrected.
In fn. 2 of his Decision, the Administrative Law Judge incorrectly
reported the citation to Local 945, International Brotherhood of Teamsters
Chauffeurs Warehousemen and Helpers of America (Newark Disposal Ser-
vice, Inc.), which is 232 NLRB 1 (1977).
In the section of his Decision entitled "Reserved Gate Theory," the
Administrative Law Judge in the fourth paragraph stated:
. . . By twisting logic, the Respondent suggests that primary strikes
against independent contractors could lawfully be spread to enmesh
all customers of such contractors who under existing law are other-
wise neutrals in the dispute. Such a view is patently without merit
and has been rejected before, as it is now. United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitring Industry of the
United States and Canada (Circle Inc.). supra, p. 104.
We agree with the Administrative Law Judge, for the reasons given in
his opinion, that this argument of Respondent lacks merit. However, we
must disavow his citation of Circle. Inc., 202 NLRB 99 (1973), enfd. 486
F.2d 1401 (5th Cir. 1973). in connection with rejecting the contention,
because the Board in that case (fn. I of the Decision and Order) expressly
did not rely on the portion of the Administrative Law Judge's Decision
which was referred to by the Judge here.
248 NLRB No. 133
CIO, New York, New York, its officers, agents,
and representatives, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD, JR., Administrative Law Judge:
This case was heard in New York City May 16 and 17,
1979, on charges filed on November 13, 1978, and com-
plaint issued December 5, 1978, alleging that Respondent
violated Section 8(b)(4)(i), (ii)(B) of the Act, the section
prohibiting secondary boycotts, by picketing Dalton
Schools during a labor dispute with Allied Maintenance
Corporation.
Based upon the record, including my observation and
judgment of the witnesses' demeanor and careful consid-
eration of the parties' briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The parties agree, the record evidence establishes, and
I find that Dalton Schools, an operator of an elementary
and secondary level school in New York City, and
Allied Maintenance Corporation, which supplies janitori-
al and maintenance services to Dalton, are employers
and persons engaged in commerce within the meaning of
Sections 2(1), (2), (6), and (7) and 8(b)(4) of the Act.
There is no dispute, and I find on the record that ARA
Services, Inc., a Delaware corporation located in Phila-
delphia, Pennsylvania, from which point it is engaged in
providing food services to numerous customers outside
Pennsylvania, is engaged in an industry affecting com-
merce within the meaning of the Act.
Respondent concededly is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
Respondent and Allied were parties to a collective-
bargaining contract covering Allied employees from No-
vember 1975 to November 1978. In early November
1978 Respondent struck Allied in a dispute over the
terms to be contained in a new agreement covering
about 15 Allied employees assigned to work at Dalton
Schools' facilities, 108-114 East 89th and 61 East 91st
Streets, New York City. The employees do routine main-
tenance, cleaning, and janitorial work under Allied su-
pervisors and pursuant to a contract between Allied and
Dalton Schools, the terms of which clearly establish
Allied as an independent contractor. Dalton also uses
two of its own employees and a third individual, on a
contract basis, to perform janitorial work at buildings not
serviced by Allied. None of the Dalton employees are
represented by a union. Respondent concedes, as the
record reflects, that it had no dispute with Dalton or
ARA, food supplier to Dalton's students and faculty,
over terms or conditions of employment for their em-
ployees at any time relevant to this proceeding. Thus,
Respondent's picketing at Dalton Schools was occa-
sioned solely by its dispute with Allied.
LOCAL 32B-32J, SEIU 67
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The Picketing
Respondent admits that it picketed on the Dalton
Schools' adjacent sidewalks alongside the school's build-
ings from November 6, 1978, until the strike against
Allied ended on the following November 17. A prelimi-
nary warrant for this picketing arose from the fact that
Allied remained bound to provide services to Dalton
during this period, so that its presence in the form of
personnel at Dalton Schools gave rise to valid common
situs picketing. Thus, there is no question that, although
Allied employees honored the line and withheld work,
Allied supervisors were regularly present and performed
at least some of the work owed to Dalton Schools
during the entire course of picketing. It follows that Re-
spondent had a right to be there, and the question thus
becomes whether Respondent acted in accord with the
rules regarding common situs picketing while it was
there. Clearly Respondent did not.
B. The Picket Signs
At the start in picketing, the patroling pickets, located
at Dalton Schools' facilities, bore signs announcing that
the Union was on strike, listing the Union's address and
asking readers to "Help us win our case" or to "Please
Cooperate." The signs failed to identify the Employer
with whom the Union had its dispute at any of the pick-
eted locations at 89th and 91st Streets. I credit Dalton
Schools' director of operations, Armand Bartos, Jr., that
Respondent's picket signs failed to identify any employer
in this regard until November 14, when the name Allied
was placed on a strip of paper added to the signs. I do
not credit Shop Steward Dominique Gonzales' testimo-
ny, which places this alteration on the second day of
picketing, for demeanor and inconsistency reasons. Fur-
ther, due to vagueness and an apparent selective recall
based upon self-interest, I do not credit Respondent's
other witness on this point, Bernard Sampson. Thus, for
a period of 8 days out of the entire 12 days of picketing
Respondent ignored its duty to clarify for those coming
within reach of its efforts the identity of the Employer
with whom it had a dispute.
C. Respondent's Admissions
Not only did the picket signs fail to identify the prima-
ry employer, but Respondent's shop steward, Gonzales,
made matters worse when during most of this period he
responded to Dalton suppliers and delivery persons as to
what the strike was about by stating that it was because
the contract expired and "they" did not want to sign a
new contract. By "they" Gonzales testified he meant
"the school, or Allied, or whatever." When pressed fur-
ther for what he had told the delivery persons, he re-
plied that he told them "not to deliver them. It was a
strike." It is undisputed that these comments by Gonzales
occurred while pickets were patroling the normal points
of ingress and egress at Dalton, so that when his com-
ments together with the absence of clarity on the signs as
to the primary employer are considered in sum, the
rather clear picture emerging to the public is that the
Dalton Schools' facilities were being picketed in a strike
against Dalton.
Any question as to Respondent's intention in this con-
duct was clearly answered at the hearing when Respon-
dent admitted it was picketing Allied at the school and
"[it] was picketing the school." Further, Respondent ad-
mitted:
They were picketing Allied as the employer and it
was also the position of the Union that Dalton was
far from a neutral. Yes they were concerned with
exerting pressure on Dalton as not being a neutral.
D. Findings and Conclusions
Given the foregoing, it is not surprising that Dalton
School's Director of Operations Bartos expressed the
view at the hearing that the substantial interruptions in
deliveries to Dalton Schools by ARA and its supplying
of food services in this period were caused by the picket-
ing, as well as disruptions in the form of delays in linen,
parcel, milk, and fuel deliveries, in addition to garbage
pickup failures. These deliveries were either scheduled
or expected to be made during this period: there was no
evidence of any other reason for the disruptions in Dal-
ton's long-established business relationships with these
suppliers and the daily routine: and a driver for one sup-
plier reported to Bartos that he had been informed by
pickets while attempting to make a delivery that the
strike was against Dalton. While this hearsay report
standing alone would not be probative evidence in sup-
port of Bartos' view of events, there is a corroboratory
consistency to the account when the overall circum-
stances are considered. However, I do not rely on it
when I conclude that the entire foregoing review of
events warrants the finding that Respondent intended to
and did enmesh Dalton Schools, ARA, and others in its
dispute with Allied by the above-described picketing.
E. Reserved Gate Theory
The General Counsel also contends that Respondent's
conduct may be found unlawful because Respondent
picketed entrances reserved for neutral employers. But
the record is insufficient to establish that Dalton Schools
maintained an effective separate gate system during the
picketing. Thus, one of the entrances, at 53 91st Street,
was not marked or designated so that the system was not
one which covered all regular points of ingress and
egress of employees involved in the Dalton Schools op-
eration. Allied supervisors, who were supposed to use
only the gate reserved for Allied's use, experienced diffi-
culty when asked to identify the Allied gate at the hear-
ing and the testimony that two Allied employees regular-
ly entered the school buildings once a week through an
entrance supposedly reserved for neutral employers to
work on payrolls was uncontradicted (an Allied supervi-
sor, who was identified as also using a neutral gate, was
not called to testify). The only monitoring occurred at
the Allied entrance; that is, the neutral entrances were
not watched for possible infractions by Allied personnel,
who, as Respondent aptly puts it, would be reasonably
inclined to use a neutral nearby gate rather than indefi-
nitely await the unlocking of an Allied entrance. The
neutral gates did not clearly invite or authorize neutral
employers to enter through them but instead the signs
LOCAL 32B 32J, SEIU 1069
there only prohibited Allied and its suppliers from such
use; and, the unevenly scheduled working shifts and lo-
cations for the cleaning and maintenance work at the
school's separate buildings defied a reliable monitoring of
the system. I do not credit Respondent witnesses Gon-
zales and, also for demeanor reasons, Jaime Almario,
when they testified to widespread misusage of neutral en-
trances by Allied personnel throughout the strike period.
Bartos, who kept a reasonable eye out for any such oc-
currences, testified credibly that no report was received
to this effect. However, while no single element noted
above is relied upon as a sine qua non in such determina-
tion, I find that the record fails to establish that Respon-
dent's picketing at the entrances supposedly reserved for
neutral employers provides an additional premise for
finding that Respondent intended its picketing to enmesh
those neutrals in its dispute with Allied. Since there is
clear evidence for such a conclusion elsewhere in the
record, as noted above, such a determination has no
effect on the decision in this case.
I find that by its own admissions as to what was com-
municated to Dalton Schools' delivery persons, by its
own admissions at the hearing, and because it admittedly
picketed at the Dalton Schools premises with signs fail-
ing to identify the primary employer during 8 days in the
12 consecutive days of picketing, that Respondent pick-
eted with an object of causing Dalton and ARA to cease
doing business with each other and Dalton Schools to
cease doing business with Allied Maintenance Corpora-
tion, thereby violating Section 8(b)(4)(i) and (ii)(B) of the
Act. Sailors' Union of the Pacific, AFL (Moore Dry Dock
Company), 92 NLRB 547 (1950); Sequoia District Council
of Carpenters, AFL-CIO (Nick Lottanzio d/b/a Lattanzio
Enterprises), 206 NLRB 67 (1973); and Local 3, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO
(Hylan Electrical Company, Inc.), 204 NLRB 193 (1973).
But Respondent urges that Dalton Schools was not
really a neutral in the dispute with Allied because Bartos
once informed the Union that if the pickets were re-
moved the benefits in any contract ultimately reached
between Allied and Respondent would be retroactive.
Respondent also points out that Dalton is alleged in a
hearsay report from Allied to have refused to "allow"
Allied, to agree to a reduction-in-force provision in the
Allied-Respondent new contract, a thorny subject in Re-
spondent's view and one which "prolonged" the dispute.
Further, Respondent argues that under the General Elec-
tric test,' wholesale picketing against Dalton was war-
ranted because the cleaning work performed by Allied
was "related" to Dalton's daily operations, or at the least
so identical in nature to the cleaning work done by
Dalton during the strike that it could be characterized as
"struck work."
No precedent is advanced to support the view that a
neutral's efforts, however fruitless, to seek relief from a
union and get out from under unlawful picketing some-
how aligns the neutral with the primary so as to justify
picketing the former, and I reject such contention here.
There is no basis to find that Dalton became a conego-
i Local 761, International Union of Electrical. Radio and Machine Work-
ers, AFL-CIO v. NLRB. 366 U.S. 667 (1961), affg. 123 NLRH 1547
(1959).
tiating party with Allied merely because it allegedly in-
sisted in discussions with Allied on retaining established
practice with respect to reduction-in-force issues as con-
tained in the Dalton-Allied contractual relationship.
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, Local Union No. 60, AFL-CIO (Circle, Inc.), 202
NLRB 99, 104, fn. 12 (1973). Such attention by Dalton
to its arms-length dealings with Allied would not render
Dalton any less a neutral in Respondent's dispute with
Allied because Dalton and Allied were separate employ-
ers dealing with the subject in the context of their own
relationship. In any event, I credit Bartos over Respon-
dent's witness, Bernard Sampson, for the reason noted
above, that the entire issue of reduction in force arose,
insofar as Dalton is concerned that is, after the strike was
over and hence if Dalton did refuse to change its posi-
tion to that of the Union such could not have prolonged
the strike. Regarding Bartos' reference to "retroactivity,"
as well as his remark to Gonzales on the picket line that
Dalton would pay for all work done by Allied if the
picketing ceased and work resumed, I find such to be
harmlessly inoffensive and with respect to the former
statement neither authorized nor ratified by Allied. Re-
spondent's reliance on the General Electric theory supra
is misplaced as such doctrine is inapplicable in the pre-
sent circumstances where the primary dispute is against
the independent contractor supplier of services and not
the separate employer occupier of the premises to whom
the services were supplied. To follow Respondent's view
would be to grossly distort the purposes of the General
Electric doctrine by permitting secondary picketing based
merely upon similarity or relatedness in the work of the
primary struck supplier and a portion of the work done
by its customer. By twisting logic, Respondent suggests
that primary strikes against independent contractors
could lawfully be spread to enmesh all customers of such
contractors who under existing law are otherwise neu-
trals in the dispute. Such a view is patently without
merit and has been rejected before, as it is now. United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada
(Circle, Inc.), supra at 104. Finally, the short answer to
Respondent's work defense is that Dalton, if it did per-
form cleaning work in the period of the strike, was not
performing struck work, but was attending to its own
needs as a neutral employer. This is so because the
record shows that Dalton's performance of such work
was of no economic benefit to Allied; nor did it permit
Allied to escape the economic impact of the strike in any
way. Dalton paid Allied only for the work done by
Allied in this period, a sum considerably less than Allied
would normally receive due to the receipt by Dalton of
considerably diminished services. It follows that Dalton
was no ally of Allied and that any janitorial work done
by Dalton was not struck work. Oil, Chemical & Atomic
Workers International Union, AFL-CIO (Western Industri-
al Maintenance, Inc.), 213 NLRB 527, 529 (1974). I there-
fore conclude that Dalton was neutral to Allied and Re-
spondent's dispute and that Respondent's conduct was
secondary.
LOCAL 32B-32J. SEIU
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, it is concluded that by Respondent's
picketing from November 6 through 17, 1978, Respon-
dent has induced or encouraged the employees of Dalton
Schools and ARA to withhold their services with an
object of forcing Dalton Schools and ARA to cease
doing business with each other and to force Dalton
Schools to cease doing business with Allied, thereby co-
ercing and restraining the neutral employers with the
same objective, since the picketing is also a violation of
Section 8(b)(4)(ii)(B). Local 18, International Union of Op-
erating Engineers, AFL-CIO (Dodge-Ireland, Inc.), 236
NLRB 199 (1978); and Local 2117, United Mine Workers
of America (Codell Construction Company), 239 NLRB
No. 88 (1978).
Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent set forth
above occurring in connection with the operations of the
employers and persons described in section I and II,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
IV. THE REMEDY
The General Counsel, in her excellent and helpful
brief, contends that a broad order against Respondent is
warranted. Although I have given careful consideration
to this request, a not unreasonable one given the clarity
of Respondent's unlawful conduct enmeshing Dalton
Schools and ARA in Respondent's dispute with Allied
on a rather tenuous basis, as well as a growing list of
cases involving Respondent in picketing situations lead-
ing to Agency or court action, albeit in the ultimate form
of consent orders or settlements, I am not convinced that
Respondent, as yet, has crossed the line into being con-
sidered a union which has demonstrated a proclivity for
violating Section 8(b)(4)(i) and (ii)(B) of the Act. Ac-
cordingly, the request for a broad order is denied.2
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that Re-
spondent be ordered to cease and desist therefrom and
take certain affirmative action deemed necessary to effec-
tuate the policies of the Act.
CONCLUSIONS OF LAW
1. Dalton Schools and Allied Maintenance Corpora-
tion are employers and persons engaged in commerce
within the meaning of Sections 2(1), (2), (6), and (7) and
8(bX4) of the Act, and ARA is a person engaged in an
industry affecting commerce within the meaning of the
Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By inducing or encouraging individuals employed
by persons engaged in commerce, or in an industry af-
2 See National Association of Broadcast Employees and Technicians,
AFL-CIO. Local 31 (CBS Inc.), 237 NLRB 1370 (1978); cf. Local 945,
International Brotherhood of Teamsters. Chauffeurs. Warehousemen and
Helpers of America (Newark Disposal Service, Inc.), 231 NLRB I (1977).
fecting commerce, to engage in a strike or refusal to per-
form services, and by coercing or restraining persons en-
gaged in commerce, or in an industry affecting com-
merce, with an object of forcing or requiring Dalton
Schools and ARA to cease doing business with each
other and to force Dalton Schools to cease doing busi-
ness with Allied Maintenance Corporation, Respondent
has engaged in unfair labor practices within the meaning
of Section 8(b)(4)(i) and (iiXB) of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER3
The Respondent, Local 32B-32J, Service Employees
International Union, AFL-CIO, its officers, agents, and
representatives, shall:
I. Cease and desist from inducing or encouraging any
individual employed by Dalton Schools, ARA, or any
other person engaged in commerce or in any industry af-
fecting commerce, to engaged in a strike or refusal in the
course of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, ar-
ticles, materials, or commodities, or to perform any ser-
vices; or threatening, coercing, or restraining said em-
ployers or any other person engaged in commerce or in
an industry affecting commerce where in either case an
object thereof is to force Dalton Schools and ARA to
cease doing business with each other or to force Dalton
Schools to cease doing business with Allied Maintenance
Corporation.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Post at at its 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 2, after being duly signed by autho-
rized representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Sign and mail sufficient copies of said notices to
said Regional Director for posting by each of the Em-
ployers named in the preceding paragraphs, if willing, at
all places where notices to their respective employees are
customarily posted.
(c) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 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.
4 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
---
LOCAL 32B-32J, SEIU 1071
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any individ-
ual employed by Dalton Schools, ARA, or any
other person engaged in commerce or in any indus-
try affecting commerce to engage in a strike or re-
fusal in the course of their employment to use, man-
ufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commod-
ities, or to perform any services; and WE WILL NOT
threaten, coerce, or restrain said employers or any
other person engaged in commerce or in an indus-
try affecting commerce where in either case an
object thereof is to force Dalton Schools and ARA
to cease doing business with each other or to force
Dalton Schools to cease doing business with Allied
Maintenance Corporation.
LOCAL 32B-32J, SERVICE EMPLOYEES IN-
TERNATIONAL UNION, AFL-CIO