BOMA/CHICAGO

National Labor Relations Board - Administrative Judge Opinions

Dec 21, 2007

13-CE-000127 (N.L.R.B. Dec. 21, 2007)

JD–79–07
Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BUILDING OWNERS & MANAGERS
ASSOCIATION OF CHICAGO
(BOMA/CHICAGO)
Respondent
and Case No. 13-CE-127
THE WACKENHUT CORPORATION
Charging Party
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL NO. 1
Party to the Contract
Jeanette Schrand, esq.,
for the General Counsel
Dennis Devaney, esq.,
of Bloomfield Hills, Michigan
for the Charging Party
Richard L. Marcus, esq., and Roger T. Brice, esq.,
of Chicago, Illinois, for the Respondent
Alexia Kulwiec, esq., and Craig Becker, esq.,
of Chicago, Illinois, for the Party to the Contract
DECISION
Statement of the Case
Eric M. Fine, Administrative Law Judge. This case was tried in Chicago, Illinois on June
11 and 12, 2007. The charge was filed on October 5, 2006, by The Wackenhut Corporation
(Wackenhut) and the complaint issued on March 19, 2007. The complaint, as amended at the
hearing, alleges that BOMA/Chicago (BOMA) violated Section 8(e) of the Act by maintaining,
entering into, and reaffirming a provision in its 2004 collective bargaining agreement with Service
Employees International Union Local 1 (Local 1) concerning security employees requiring that
any subcontractor that does not have a contract with Local 1 meet all the standards of BOMA’s
agreement with Local 1, thereby requiring BOMA employer members to agree not do business
with another employer or person. The complaint, as amended, also alleges that, at all times the
referenced sub-contracting provision of the collective-bargaining agreement has been applied
and intended to be applied by the parties to the agreement to require non-signatory contractors to
observe and be bound by the agreements' requirements for payment of monies into the fringe
benefit funds set forth in the agreement, and that by the maintenance, entering into, and
reaffirming that provision BOMA has violated Section 8(e) of the Act.1

1 The complaint was amended at the hearing to drop Local 1 as a Respondent, leaving its
participation to the proceedings as a Party to the Contract. As such, Local 1 was given full rights
Continued
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Wackenhut,2 BOMA, and Local 1, I
make the following3
Findings of Fact
I. Jurisdiction
BOMA is a voluntary trade association of employer members engaged in business as
building owners and managers in Chicago, Illinois. BOMA has represented certain of its
employer members in the negotiation and execution of collective-bargaining agreements with
various labor organizations including Local 1. During the past 12 months, BOMA in conducting its
business operations derived revenues in excess of $50,000 from employers that are engaged in
interstate commerce in that the employers received $50,000 in revenues directly from points
outside the state of Illinois. BOMA admits and I find that BOMA and its employer members are
employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
Local 1 is a labor organization within the meaning of Section 2(5) of the Act.
_________________________
of participation in this proceeding. At the close of the hearing, on June 12, 2007, I allowed BOMA
and Local 1, until July 9, 2007, to determine if any additional evidence was needed to respond to
the General Counsel’s amendment to the complaint pertaining to fringe benefit fund contributions.
By fax dated July 9, 2007, Local 1 filed a motion to present additional evidence. Wackenhut filed
an opposition to said motion on July 11, 2007. A conference call was held between all parties on
July 11, 2007, concerning Local 1’s motion and the opposition thereto. On July 12, 1007, Local 1
filed a withdrawal of its motion to present additional evidence. Accordingly, on July 12, 2007, I
issued an email to the parties canceling a conference call then scheduled for July 13, 2007, and
closing the record.
2 Following the submission of briefs, BOMA filed a motion to strike certain portions of
Wackenhut’s brief incorporated under the heading of “Background.” BOMA argues that none of
the alleged facts contained therein, except for a few specified items, were supported by record
evidence and that the facts asserted were in large part depicting actions between Wackenhut and
SEIU. BOMA also specifically denied the accuracy of a representation in Wackenhut’s brief
concerning a “Suburban Agreement.” Wackenhut filed a response to the motion to strike
asserting that the background section was general information to place issues and facts before
the ALJ in context. BOMA filed a response to Wackenhut’s response reiterating its contention
that referenced portions of Wackenhut’s brief should be struck. I do not find is necessary to strike
portions of Wackenhut’s brief. However, I have not relied on or considered any assertion of fact
that was not part of the record in this case. See, Baldwin Shop ‘N Save, 314 NLRB 114 fn. 1
(1994). I have also rejected Wackenhut’s request in its brief and response that I to take judicial
notice of an alleged settlement agreement between Wackenhut and SEIU. No attempt was made
to place the settlement into evidence, there is no claim that BOMA was a party to or otherwise
made aware of the settlement, and a settlement agreement is not akin to a published Board
decision of which I would take judicial notice.
3 In making the findings herein, I have considered all the witnesses’ demeanor, the content of
their testimony, and the inherent probabilities of the record as a whole. In certain instances, I
have credited some but not all of what a witness said. See NLRB v. Universal Camera
Corporation, 179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474 (1951). All
testimony has been considered, if certain aspects of a witness’ testimony are not mentioned it is
because it was not credited, or cumulative of the credited evidence or testimony set forth above.
Further discussions of the witnesses’ testimony and credibility are set forth throughout this
decision.
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II. Alleged Unfair Labor Practices
Ronald Vukas is the executive vice president of BOMA and he has held that position since
September 2001. Vukas’ testimony reveals that BOMA is a nonprofit association whose
membership is divided into four categories. Commercial office building members of BOMA fall
into two of these categories, which are general office buildings and allied buildings such as the
Art Institute. These two categories of buildings have voting rights in BOMA with one vote per
building. Vukas testified that as of June 11, 2007, there were 260 buildings as BOMA members,
all located in Chicago. Vukas testified that BOMA has two non-voting classifications of
membership called affiliate members. One group of affiliate members provides goods and
services to office buildings in Chicago. The other affiliate members, such as law firms and
architectural companies, provide professional services to the office buildings. Vukas testified that
some of the security contracting firms are affiliate members. Affiliate members can attend BOMA
committee meetings, but are not represented by BOMA for collective bargaining purposes.
Vukas testified BOMA provides advocacy services for its members such as dealing with city hall
in terms of building codes. BOMA also provides members with educational services, research
and statistical information and collective bargaining representation.
Louis Caravelli started the BOMA’s security committee and he has been a committee
member since 1985. The committee provides assistance to Chicago properties, educational
services to member buildings, and trains security personnel. Caravelli testified the committee
currently has 50 members, including building personnel, representatives of security companies,
as well as a few police officers and federal agents. The committee runs luncheons for BOMA
members and provides speakers on how to do things concerning security, such as hiring a
security director. The committee has run programs for security training, and has worked with
Local 1 to bring security training for the officers. The committee has been involved with the
Chicago Police Department, the FBI, Alcohol, Tobacco and Firearms, the Department of
Homeland Security, and other federal agencies. Caravelli testified that a sub committee of the
committee drafted the Chicago Evacuation Ordinance, which was adopted by the city. Caravelli
testified the committee has worked with the Chicago police to bring the security effort in the
downtown area of Chicago together to help reduce crime. Caravelli testified they have also
worked with the fire department concerning evacuation response training.
Richard Marcus, a licensed attorney, has represented BOMA since 1975 in labor relations
matters. Marcus testified, “I have participated, I believe, in every collective bargaining session
conducted by, involving BOMA/Chicago since 1975.”4 Marcus has represented BOMA in
negotiations with several different unions, including the SEIU. Marcus testified that the SEIU has
represented security employees in BOMA member buildings since 1975 and before because prior
to 1975, SEIU had contracts dealing with elevator operators and starters, who Marcus
characterized as performing security functions. Marcus testified he has seen a contract with a
predecessor union to SEIU and BOMA’s predecessor dating back to 1918, covering elevator
operators, starters and assistant starters.

4 Marcus testified that during the 2001 contract negotiations with Local 1 there was discussion
of the establishment of a training program for security officers. Marcus testified that in 2004, the
outlines of a program were established and a trust was created, which is in the collective
bargaining agreement and funded by contributing employers. Marcus testified this has created a
school for the training of security personnel in life safety, CPR, evacuation in the event of terrorist
acts, evacuation in the event of fire, or a disruption in the building. The training is tailored to the
commercial building industry. Attendance at the training is voluntary.
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Marcus testified to the following: BOMA’s predecessor’s 1975 collective bargaining
agreement with the SEIU covered elevator operators, elevator starters, assistant starters, and
security employees. The collective bargaining agreements remained that way until 1984 when
the parties agreed to separate contracts for security and elevator employees. Marcus testified
that in negotiations in 1997 or 1998, BOMA, told the union that BOMA would no longer deal with
them as a bargaining representative for elevator employees because elevator employees were
performing security functions identical to that of the security employees, who were covered under
a separate contract. Eventually, the SEIU accepted the absorption of the elevator employees into
the security bargaining unit. Marcus testified it was BOMA’s position that elevator starters, whose
function it was to monitor the halls and the lobbies of the buildings had become purely security
employees because by 1997 most of the passenger elevators were automated. Most of the
freight elevators had also been automated by that time. However, they were still manned by
elevator operators who controlled access to the buildings and screened out people who should
not be there. Marcus testified it was BOMA’s position that is what security employees do and
those employees should be included in the security unit.
Marcus identified a collective-bargaining agreement, with effective dates of September 29,
1975 through March 27, 1977, between the Building Managers Association (BMA) and SEIU local
25 (The 1975 agreement).5 Marcus testified that he negotiated this contract. Marcus testified
that this was the initial contract where elevator and security employees were combined into one
unit. The recognition provision of the agreement lists both elevator and security employees.
Article XXIV, Subcontracting, reads in pertinent part:
If any Employer shall, during the life of this Agreement, contract for all or any part of the
work being performed by employees in the bargaining unit covered by this Agreement, he
shall include in his Agreement with the contractor a provision binding the contractor to
observe the economic terms and conditions of this Agreement, such as wages, hours and
fringe benefits. The Agreement between the Employer and the contractor shall also
provide that on complaint filed by the Union that the contractor is not faithfully observing
such terms of this Agreement, the Employer may terminate his Agreement with the
contractor on thirty (30) days’ notice. On a complaint filed by the Union, the contractor
shall be given a hearing before a representative of the Union and a representative of the
Employer. If they cannot agree on a disposition of the complaint, it shall be decided in
accordance with Article XX hereof. If it is determined that the complaint of the Union is
well founded, the contract between the contractor and the Employer shall be terminated.
The March 29, 1982 to March 25, 1984, collective-bargaining agreement between BMA
and Local 25, covered both elevator personnel and security employees. By letter dated August 7,
1984, BMA sent its members a copy of a collective bargaining agreement with Local 25, which
covered only the elevator operators and starters for the period of March 26, 1984 to September
28, 1986. The members were advised that negotiations with Local 25 for a separate agreement
for security personnel were ongoing. An agreement was negotiated between BMA and Local 25
covering security personnel, with the effective dates of March 26, 1984 to January 25, 1987. All
three of these agreements contained the same subcontracting language included in the 1975
agreement set forth above. Marcus testified that the 1984 contract was the first contract
negotiated between BMA and SEIU just for security employees. As set forth above, in the 1997

5 Marcus testified BMA was the prior name for BOMA and that Local 25 was now Local 1 as
Local 25 was dissolved following a trusteeship and incorporated into Local 1. Marcus testified
that he thought the first contract with Local 1 was the 1998 agreement.
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or 1998 contract negotiations, a separate agreement for the elevator employees ended and they
were merged into the security employees bargaining unit. Marcus testified there was no time
following the 1984 contract where there was not a contract between BOMA and SEIU for security
employees.
There were no collective bargaining agreements submitted into evidence covering the
period between the expiration of the 1984 agreements and the start of the 2001 agreement
between BOMA and Local 1. The 2001 agreement has effective dates of April 23, 2001 to April
25, 2004. Marcus testified there was a period when maintenance of economic standards
language pertaining to subcontracting was not in the collective bargaining agreements. Marcus
explained that this took place when there was a jurisdictional fight between Local 1 and SEIU
Local 73 pertaining to certain Chicago office buildings. Marcus testified BOMA took the position
with Local 1 that it would not bind its members to use contractors who are living up to Local 1’s
wage scale when another SEIU local was putting contractors into buildings at a lower wage scale.
Marcus testified Local 73, “had lower wages and benefits.” Marcus testified that this could have
started in 1987 and lasted for 8 or 9 years when the maintenance of economic standards
language for contractors was not in BOMA’s collective bargaining agreements with the SEIU.
Marcus testified that even during the period when there was no economic standards provision in
the BOMA contract for subcontractors some of the buildings on their own required the contractor
to deal with Local 1. He testified, “I saw some of them that specifically said that you must pay the
rates and benefits that are contained in, or excuse me, you must deal with Local 1. Some of the
buildings have said that on their own.”6
Kenneth Cliff has been working for Local 1 or its predecessors for about 33 years. Cliff
testified that in the 1990’s, the all standards subcontracting clause was not in the contracts
between BOMA and the SEIU. Cliff testified that, during that time, Local 25 and then Local 1
continued to organize and represent security guards in down town Chicago who were employed
by contractors. Cliff testified the economic terms of the Union’s contracts with contractors were
the same as the economic terms in BOMA’s contracts. Cliff testified that during the period when
the clause was not in effect between BOMA and the Union, almost all of the guards in the
downtown office buildings were represented by the Union. Cliff testified that there was no
diminution in the economic standards in the downtown area for security guards because the
terms that applied were largely set by the BOMA contract. Cliff testified that during this period,
the Union continued to demand the area standards clause regarding economic terms be put back
in the BOMA contract. Cliff testified the language was put back in the contract in the late 1990’s.
Cliff testified that, although the language was not in the contract, the basis for the Union
demanding that the BOMA subcontractors comply with the economic terms was that the area
standards for downtown Chicago were always the BOMA standards going back to the 1930’s.

6 Marcus testified that he knows there is “a widespread practice in the city of Chicago in office
buildings, and I have personally been involved in this where, regardless of the contractor, whether
it's security, plumbing, electrical, anything, that before they enter into the contract they insist that
they will have union personnel. And the reason they do that, is so that every, there won't be any
threats of any work stoppage from anybody. And those are buildings that don't even have
contracts of any kind with the plumbers, with the pipe fitters, with whoever, it's just their practice
that they want union people working in the buildings. I know because when I moved into a
building, I tried to have some carpeting installed, and they would not let them in the building
because they were non-union.” Marcus testified this incident had nothing to do with BOMA,
rather the building owner as a matter of policy would only allow people who were union
contractors to work in the building.
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I did not find Cliff, an employee of Local 1’s, testimony to be very convincing here given
Marcus’ testimony that BOMA refused to maintain the economic standards language in Local 25
or Local 1’s contract because a competing SEIU Local was organizing the Chicago buildings at
lower rates. Moreover, Cliff testified in generalities providing no specifics as the extent of Local
25 or Local 1’s organization of the BOMA buildings or that of subcontract employees. Marcus’
testimony revealed that the maintenance of economic standards language was removed from the
BOMA agreement around 1988, and Cliff testified that such language was not reinserted until the
late 1990’s. Despite Cliff’s contention that economic standards language was reinstated in
BOMA and Local 1’s contract in the late 1990’s, no agreement containing such language was
entered into evidence for the period covering 1988 to 2001.
The recognition clause of the April 23, 2001 through April 25, 2004, agreement between
BOMA and Local 1 states Local 1, is the representative of “security employees, including elevator
operators, starters and assistant starters employed by them in the buildings which are now or
may hereafter be covered by this Agreement…”. The subcontracting clause, Article XXIII
contains the following language, “any subcontractor that does not have a collective bargaining
agreement with the Union, the Employer shall require that said contractor will meet all of the
standards of this Agreement.” The subcontract Article also states that, “In the event that the
Employer subcontracts to a security contractor which is a party to a collective bargaining
agreement with the Union, the terms and conditions of this Agreement shall be the only terms and
conditions applicable to said contractor and its employees working in the Employer’s buildings
notwithstanding the particular terms and conditions contained in any collective bargaining
agreement between the Union and such security contractor.” Article XXIII in the 2001 BOMA
Local 1 agreement did not reference the agreement’s grievance-arbitration procedure. In fact,
Article XVIII, Section 6 of the grievance arbitration procedure states, “The grievance procedure
set forth in this Article shall not apply to differences or disputes involving employees of
contractors engaged by the Employer pursuant to Article XXIII which are subject to resolution
under grievance procedures established by and between the contractor and the Union.”
Mona Ballenger, security director for Local 1, has worked there since December 2000.
Ballenger testified Local 1 sought to enforce the subcontracting all standards provision in Article
XXIII, in 2003, in that on one occasion Local 1 sought to enforce the economic terms and
conditions of the article pertaining to a subcontractor. Ballenger testified that a grievance was
filed at the time, and it was Local 1’s position that the economic terms and conditions pertaining
to Article XXIII “means all the economics, the wage rates, the health and welfare, the pension – “
and vacations. She explained that included payments to those SEIU funds contained in the
contract and vacation benefits. Ballenger testified that there had been one contractor performing
security work in BOMA buildings that was not signatory to a contract with Local 1. She testified it
was Local 1’s position that the subcontractor had to make payments, “to the union’s funds and
the economic terms, or benefit levels to the security officers.” Ballenger testified as follows
pertaining to the non union sub contractor’s failure to make contractual benefit fund contributions
under BOMA’s contract with Local 1:
Q. So they tried to make the contributions and you wouldn’t let them?
A. No.
Q. No, you wouldn’t let them, or no, I’m incorrect.
A. No, they didn’t even try to.
Q. Okay. So they weren’t doing it.
A. Correct.
Q. And you filed a grievance to make them to do that?
A. We filed a grievance to BOMA to make them do that.
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Ballenger testified the grievance was filed against BOMA because it was a non-signatory
contractor, so they could not make those contributions to the SEIU funds. Ballenger testified
Local 1 filed a grievance against BOMA to make the contractor make the funds contributions.
She testified, “it went to the grievance hearing with BOMA.” She testified there was a meeting
held between the building manager, SEIU, and BOMA. Ballenger testified that, as a result, the
BOMA member employer operating the building put the security contract out for bid, obtained a
union contractor, and replaced the non union contractor that had been servicing the building.
Ballenger testified that when the non union contractor refused to make contributions to the SEIU
funds Local 1 filed a grievance. Ballenger testified the employer got rid of the contractor,
“Because they were a BOMA signatory building and they were bound by the BOMA agreement
with Local 1.” Ballenger testified that if the Article XXIII language was the same in the current
contract as that which was contained in the contract in effect in 2003 then her interpretation of
that language would be the same for the current agreement. Under questioning by Marcus,
Ballenger testified she was positive the 2003 grievance went to the labor management
committee.7
The recognition clause of the BOMA and Local 1 agreement with dates of April 26, 2004,
to April 29, 2007, contained the same language set forth above contained in the 2001 agreement.
The 2004 agreement required health and welfare and pension fund contributions for the full time
covered employees. Like in 2001, Article XXIII-Subcontracting in 2004 includes the following
language, “any subcontractor that does not have a collective bargaining agreement with the
Union, the Employer shall require that said contractor will meet all of the standards of this
Agreement.” As in 2001, Article XXIII in 2004 states that, “In the event that the Employer
subcontracts to a security contractor which is a party to a collective bargaining agreement with
the Union, the terms and conditions of this Agreement shall be the only terms and conditions
applicable to said contractor and its employees working in the Employer’s buildings
notwithstanding the particular terms and conditions contained in any collective bargaining

7 Marcus testified he believed that he attended every labor management committee meeting
in 2003. He testified that, “I don't believe it's possible” that a meeting took place where he was
not in attendance. Marcus testified he did not recall a grievance being presented to the
committee involving a contractor who allegedly was not meeting the economic standards in 2003
or at any other time. Marcus testified there was never a decision by the BOMA labor
management committee, or BOMA itself that a building contractor be replaced if they would not
pay into the union pension fund. Considering the demeanor of the witnesses and the content of
their testimony, I have credited Ballenger’s testimony over Marcus and find that Local 1 did file a
grievance against BOMA because a non-union contractor was working in one of the buildings and
failing to make contractual funds payments and that the grievance was brought before the labor
management committee resulting in the contractor being removed from the building and being
replaced with a union contractor. Ballenger’s testimony was clear and with good recall and it was
against the interest of Local 1, her employer. On the other hand, Marcus was testifying as an
advocate for BOMA’s position in this proceeding, and he could only testify that he believed he
was at every labor management committee meeting in 2003, and that he did not believe it was
possible that he did not attend one. Moreover, the 2004 agreement was strengthened over the
terms of 2001, in terms of accessibility of Local 1 to the contractual grievance procedure to
enforce the all standards provision against contractors, and the remedies involved. The new
remedies were consonant with what took place in the 2003 grievance settlement leading me to
the conclusion that Marcus was more aware of what transpired during the 2003 grievance than he
was willing to admit since he represented BOMA during contract negotiations. In any event,
Ballenger’s testimony, considering her demeanor and recall, was credible concerning the 2003
grievance, and I have credited it in full.
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agreement between the Union and such security contractor.” However, the 2004 version of
Article XXIII was changed from the 2001 agreement and now read, in pertinent part, that:
Grievances alleging that a contractor is not faithfully observing the terms of this
Agreement shall be processed in accordance with the grievance and arbitration
procedures set forth in Article XVIII. If it is determined by the Committee in the third step
or in subsequent arbitration proceedings between the Union and the contractor that the
grievance is well founded and the contractor thereafter refuses to implement the remedy
imposed, the contract between the contractor and the Employer shall be terminated within
sixty (60) calendar days after written notice by the Union to the Employer.
The grievance procedure was also changed in the 2004 agreement, deleting Section 6
referenced above, and specifically allowing grievance and arbitration proceedings against
contractors.
Marcus testified contractors who have employees working in BOMA buildings regularly
participate in the BOMA grievance procedure. Marcus testified that as of 2004 and thereafter,
there were two members each designated by BOMA and Local 1, who sit on the labor
management committee, which meets at the third step of the grievance procedure. Marcus
testified that during the 2004 contract there were between 35 and 40 grievances involving
security personnel that made it to the labor management committee and that, “every single
contractor who participated in those, in that procedure had a collective bargaining agreement of
it's own with the SEIU.” Marcus testified that according to the BOMA agreement, if the contractor
is a signatory to an agreement with Local 1, and they are working as a contractor in a BOMA
signatory building the collective-bargaining agreement that BOMA has negotiated prevails over
whatever differences there are between that contract and the contractor’s own contract with Local
1. Marcus testified the grievance procedure established under the BOMA agreement supplants
the grievance procedure in the contractor’s agreement. Marcus testified that while some security
contractors are affiliate members of BOMA they are not represented by BOMA at the bargaining
table with Local 1.
On September 13, 2006, BOMA distributed to BOMA employer members as well as to
security contractors who work in BOMA buildings a BOMA labor relations manual that contained
the following provision:
If the subcontractor is not a party to an agreement with the Union, building shall require
contractor to meet all of the stands of the BOMA/CHICAGO-SEIU, Local 1 Security
Agreement.
Ballenger identified a contract Local 1 had with Wackenhut with effective dates of April 26,
2004, to April 29, 2007. She testified the contract was no longer in effect at the time of the
hearing taking place on June 11 and 12, 2007, although Wackenhut was still working in BOMA
buildings.8 The Wackenhut contract contains the following provision:
If there is any conflict between the BOMA/SEIU Local 1 Security Collective Bargaining
Agreement and this Agreement in BOMA Security Signatory Buildings, the parties to this
Agreement agree that the BOMA/SEIU Local 1 Security Collective Bargaining Agreement

8 Ballenger testified the first page of the agreement was not the original first page. She
explained the page was added by the union and a letter was sent to each contractor clarifying the
page. Ballenger testified Wackenhut never issued an objection to the new first page.
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shall govern and agree to be bound by the terms and conditions of the BOMA/SEIU Local
1 Security Collective Bargaining Agreement.
The Agreement Local 1 had with Wackenhut contained Article XXIV, Subcontracting allowing
Wackenhut to subcontract work under certain conditions, including that Wackenhut “require that
said contractor will meet all of the standards of this Agreement.” It also stated that, “In the event
that the employer subcontracts to a security contractor which is a party to a collective bargaining
agreement with the Union, the terms and conditions of this Agreement shall be the only terms and
conditions applicable to said contractor and its employees working in the Employer’s building
notwithstanding the particular terms and conditions contained in any collective bargaining
agreement between the Union and such security contractor.” It goes on to state that “Grievances
alleging that a subcontractor is not faithfully observing the terms of this Agreement shall be
processed in accordance with the grievance and arbitration procedures set forth in Article XIX. If
it is determined in the proceedings that the grievance is well founded and the subcontractor
thereafter refuses to implement the remedy imposed, the contract between the subcontractor and
the Employer shall be terminated within (60) calendar days after written notice by the Union to the
Employer.” Ballenger testified that all 25 contractors performing security work in BOMA buildings,
with the exception of Wackenhut, were currently signatory to an agreement with Local 1 similar to
the one Wackenhut had signed.
Ballenger testified she was familiar with the clause at issue in this proceeding, the all
standards clause, and that Local 1 took action to enforce the clause against Wackenhut. She
testified that Local 1 filed a grievance against a BOMA building using Wackenhut and that “That’s
just been done this week.”9
Marcus testified that since he has been associated with BOMA, written communications
are sent to all BOMA building members advising them of upcoming negotiations for a new labor

9 Ballenger testified to a grievance meeting that Wackenhut attended in which she testified
that Dennis Devaney, counsel for Wackenhut objected to the grievance going forward. She also
testified in response to a leading question from BOMA’s counsel that the grievance took place at
a time Wackenhut was signatory to the contract. It is unclear from Ballenger’s testimony as to
whether this grievance was the same one which Local 1 filed during the week of the hearing to
enforce the all standards clause against Wackenhut. Whether or not it was the same grievance, I
have credited her testimony, as set forth above, that Local 1 filed a grievance against the BOMA
building using Wackenhut during the week of the hearing, at a time when Wackenhut was no
longer signatory to Local ‘s contract, and that the purpose of the grievance was to enforce the all
standards clause against Wackenhut. Ballenger’s testimony was clear on this point concerning a
recent event. I did not find her willingness to change that testimony pursuant to a leading
question from Marcus, whose client was an ally of Local 1’s in this proceeding, sufficient to
undercut Ballenger’s otherwise clear and credible testimony about an event that just happened. I
find Ballenger’s testimony undercuts Marcus’ testimony that BOMA and Local 1, extended
BOMA’s and Local’s 2004 agreement by written agreement through June 15, 2007, but in the
extensions the parties modified the agreement by the deletion of the all standards clause.
Similarly, I do not credit Ballenger’s testimony that Local 1 has taken no action to enforce any
terms of Article XXIII Subcontracting of the BOMA agreement since September 2006. While
Marcus testified that there was a written agreement between Local 1 and BOMA that the all
standards provision was no longer in effect, no such agreement was placed into evidence.
Second, Ballenger credibly testified that Local 1 had filed a grievance to enforce the all standards
provision against a BOMA building for using Wackenhut, and that said grievance was filed during
the week of the hearing, which took place on June 11 and 12, 2007
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agreement. Along with that notification, members are sent a sign up form whereby the building
authorizes BOMA to negotiate that particular contract on their behalf. BOMA’s advises the union
at the commencement of negotiations which buildings BOMA is representing in that negotiation.
BOMA also sends out requests for information to the buildings to prepare for negotiations. The
buildings are asked how many employees they have that are directly employed, and how many
employees are working in the building that are employees of contractors.
Marcus identified a summary that was provided to BOMA’s labor committee prior to or
during the negotiations for the 1984 agreement with Local 25 covering security employees.
Marcus testified the summary shows there were 34 buildings covered by the agreement, that 31
buildings had in house security crews, and 3 buildings had both in house and contract
employees. The summary showed there were 200 persons working for in house crews, which
consisted of people employed directly by the owner or by the building management firm that was
managing the building and there were six security employees working for contractors in the
buildings.10
The summary compiled by BOMA from the building members for the 2001 contract
negotiations with Local 1 shows that there were 139 signatory buildings for the 2001 agreement.
The summary shows that for the 2001 negotiations there were 310 security personnel employed
directly by the buildings working in 45 buildings and there 900 individuals working for contractors
working in 106 buildings.11
The summary of information gathered by BOMA for the negotiation of the 2004 contract
showed there were 165 buildings signatory to that contract. The summary shows that for the
2004 agreement there were 38 buildings directly employing 294 security personnel, and that
there were 128 buildings using 1196.5 contractor employees as security personnel.
Ballenger testified there is no difference between the duties of the security officers
working for the buildings and those officers working for contractors. Ballenger testified that, at the
time of the hearing in June 2007, Local 1 represented about 500 security officers that work
directly for the buildings, and about 1500 who work for contractors.

10 Marcus testified that those individuals covered by the 1984 elevator operator and starters
agreement were employed 100 percent by the buildings, and that after 1984, the elevator
operators and starters to his knowledge were always employed by the building.
11 Marcus testified the circumstances varied at buildings covered by the 2001 summary. He
testified as an example the building at 120 South LaSalle Street shows two in house staff and
seven contract employees. However, Marcus testified he was aware that the contractor in that
building was a wholly owned subsidiary of the building owner, that they had common
management and “common everything”. Marcus testified the Lurie Company owned the building,
at 120 South LaSalle Street, and operated the buildings at 33 North LaSalle and the Garland
Building, in the same fashion as they were also Lurie buildings. Marcus testified that the Lurie
company was an exception the general rule, in that most BOMA buildings that contract out
security work do not contract the work to their subsidiaries, rather the work is contracted to
independent companies. Marcus testified that the building known as the Merchandise Mart
showed 31 directly employed security staff, with no contract employees. However, Marcus
testified Merchandise Mart did use contract employees on an as needed basis and that might
vary from day to day. Marcus testified the contract employees worked side by side with the
building staff employees and that “those people are engaged at the same rates of pay and
benefits.”
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Louis Caravelli has been employed, since October 2001, by Jones, Lang, and LaSalle
(JLL), a commercial real estate management firm. Caravelli has been the director of security and
life safety at a building known as One Financial Place since 2001, which is managed by JLL. The
building is 40 stories; and it houses, among its tenants, the Chicago stock exchange. Caravelli
was employed by Lurie Company from 1981 to 2000 as corporate director of security and
lifesaving. While Caravelli was there, Lurie owned and operated three to four commercial
buildings in Chicago, and there were other buildings that Lurie had partnerships in. While
working for Lurie Company, Caravelli also worked for some of its wholly owned subsidiaries,
including LaSalle Security Systems from around 1984 to 2000 and Urban Security and Design
Specialists.
Caravelli testified there are currently 22 security officers at One Financial Place, including
one site supervisor, six supervisors, and 16 security officers. Caravelli testified that at One
Financial Place everyone on the security staff, except for Caravelli, is employed by a contractor,
which is Argus Security Services. Caravelli testified he has been involved in the contractor’s
hiring process of security employees. He testified there is a standard that applicants have to
meet before they are sent to him, and then he interviews them and gives them a pass or fail.
Caravelli testified the security officers at One Financial Place are represented by Local 1 and they
were being paid the wages and the benefits provided in Local 1’s contract. Caravelli testified the
building is a BOMA signatory. Caravelli testified there were some non-supervisory security
personnel receiving higher wages than the contractual rate, which was a minimum rate. Caravelli
testified the building determines how much the officers are to be paid. He testified the building
tells the contractor they have to pay them the minimum and that “depending on what the position
is and how the officer is doing we will tell them that we want to give this person a raise and bring
them up.” Caravelli testified that he imagines that Argus could disagree with the building’s
recommendation but did not think that Argus would since the building pays the increase.
Caravelli testified if an employee filed a grievance it would be between the employee and
Argus, although Caravelli might be called to testify. Caravelli has been involved with Argus
promoting someone to supervisor. He testified it is a joint process. There is a weekly meeting
with Argus, their site supervisor, and Caravelli where, if there is a vacancy for a supervisor, they
try to identify the person they think should be given that position, or if they do not feel they have
someone on staff then they find someone from outside. Caravelli recommended a person for
supervisor who was rejected by Argus because the person had a disciplinary history Caravelli
was not aware of.
As security director, Caravelli has provided training to all of the security officers Argus
provides to the building at One Financial place. Caravelli testified that at times he has also had to
change the security procedures in the building and communicate those changes to the officers in
the building. Caravelli testified he interacts with the officers working in the building on a daily
basis, and he observes their performance, and he would talk to them if there is a problem with
their performance. He testified that if the defect was not corrected, “We would start a disciplinary
procedure if that would be necessary.” Caravelli testified that Argus is the ultimate decision
maker as to whether an employee is to be disciplined when Caravelli thinks the employee has
done something wrong.12

12 Caravelli identified a list of 13 buildings in the Chicago area, which he testified were
managed by JLL. He testified he was familiar with the security activities at some of the buildings,
but he did not testify as to how any were operated in terms of security.
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Caravelli testified that, when he started working for Lorie in 1981, there were three
buildings, and about 18 to 20 security employees between the three properties. Caravelli left
Lorie in March 2000 there were over 20 security personnel. Caravelli testified that in 1981 the
security officers were employed directly by the Lurie Company. He testified that through attrition
they started obtaining officers from a contract firm until 1985, and then the contract firm LaSalle
Security Systems, which Caravelli ran, provided the officers. Caravelli testified that when he
worked for Lurie Company they supplemented their regular security work force with outside
contractors. They did this when people went on vacation, when someone was sick, and in similar
circumstances to fill in spots. He testified that the contractor employees from 1985 to 2000 were
LaSalle Security System employees but that there were still direct Lurie employees involved
during that time.
A. Analysis
The complaint allegations in this case are pinioned on two theories by the General
Counsel. One is that the all standards subcontracting clause has been and continues to be
interpreted by the BOMA and Local 1 as an unlawful union signatory clause. The second is that
although the all standards clause is ambiguous and therefore not unlawful on its face, it is
nevertheless unlawful in this instance because the work covered by the subcontract provision
was not fairly claimable work for Local 1’s bargaining unit under its agreement with BOMA.
1. The all standards clause as applied by BOMA and Local 1
is an unlawful union signatory clause
In Chicago Dining Room Employees, 248 NLRB 604, 606 (1980), the Board held that “It is
well settled that contract clauses which purport to limit leasing or subcontracting to employers
who are signatories to union contracts, so called union signatory clauses, are proscribed by
Section 8(e).” In General Teamsters, Local 982, 181 NLRB 515, 517 (1970), affd. 450 F.2d 1322
(D.C. Cir. 1971), the Board set forth the following principles in determining whether a clause is
violative of Section 8(e) of the Act:
if the meaning of the clause is clear, the Board will determine forthwith its validity under
8(e); and where the clause is not clearly unlawful on its face, the Board will interpret it to
require no more than what is allowed by law. On the other hand, if the clause is
ambiguous, the Board will not presume unlawfulness, but will consider extrinsic evidence
to determine whether the clause was intended to be administered in a lawful or unlawful
manner.13

13 Counsel for the General Counsel argues in her brief that the all standards language in the
contract provision at issue here is ambiguous in that it fails to specify what standards must be met
by the subcontract, and that it is plausible from the text to read it and conclude that it lawfully
applies to only economic standards. Counsel for the General Counsel took a similar position in
her opening argument at the hearing (Tr. 24-26). However, counsel for the General Counsel
argues that testimony of Ballenger constitutes extrinsic evidence clarifying the purpose of the all
standards clause and that it is in fact an unlawful union signatory clause. Contrary, to the
General Counsel, the charging party took the position at the hearing (Tr. 30), and in its post-
hearing brief that the all standards language is not ambiguous, that it is clear and unlawful on its
face, without the need to resort to extrinsic evidence. However, the Board stated in Nott
Company, Equipment Division, 345 NLRB 396, 398 fn. 10 (2005), “It is well established, however,
that the General Counsel's theory of the case is controlling, and that a charging party cannot
enlarge upon or change the General Counsel's theory. Zurn/N.E.P.C.O., 329 NLRB 484 (1999),
Continued
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In Teamsters Local 277(J & J Farms Creamery), 335 NLRB 1031 (2001), the Board
majority found that an arbitration award reaffirming or interpreting a contractual article requiring
an employer to subcontract work only to an employer signatory to a collective-bargaining
agreement with the respondent union was violative of Section 8(e) of the Act. See also,
Sheetmetal Workers Local 27, 321 NLRB 540 (1996), where a joint board’s adoption of a
respondent union’s grievance position as to an unlawful interpretation of a facially valid
subcontracting clause was found to provide the requisite agreement for a finding of a Section 8(e)
violation. In Laborers Local 29 (Blasters, Drillrunners & Minors Union), 344 NLRB No. 90, slip op.
at 1 fn. 1 (2005), the Board found a collective-bargaining agreement provision requiring other
business entities to “be responsible for compliance with all the terms and conditions of the
Agreement” to be violative of Section 8(e) of the Act. In Building & Construction Trades Council
v. NLRB, 328 F. 2d 540 (D.C. Cir. 1964), attempts to enforce a contract clause was found
unlawful where it required compliance with the “terms of this Agreement.” In Loc. 437, Int’l
Brotherhood of Electrical Workers, AFL-CIO, 180 NLRB 420, 421 (1969), a clause requiring
compliance “with the terms of this Agreement” was held to be violative of Section 8(e) because it
permits subcontracting only to employers who recognize the Union since it was found that the
term complying with terms of the agreement covers union recognition as well as other terms of
the agreement. The Board stated therein, “if a subcontracting clause should require the
subcontractor to adhere not only to the contract wage and hours terms, but also to such contract
working conditions as seniority and grievance procedure, it would be an unlawful secondary
clause.
Both BOMA and Local 1 have interjected a Section 10(b) defense to the complaint by
claiming that the Wackenhut’s charge is untimely and therefore the complaint must be dismissed.
In Dan McKinney Co., 137 NLRB 649, 653-654 (1962), the Board found that the contractual
clause at issue was an unlawful hot cargo clause and stated as follows:
We disagree with the Trial Examiner's conclusion that Section 8(e), by the words “to
enter into,” was intended to define as an unfair labor practice only the initial execution of a
proscribed agreement. We have already considered similar contentions and have rejected
this restrictive interpretation of Section 8(e). Such a construction would so narrow the
meaning of the words “to enter into” as to recreate one of the loopholes which Congress
obviously intended to close. For, Congress sought to free neutral employers from the
inhibitions of a prior contractual commitment at all times, not just at the time of signing the
contract and the 6-month period following. Congress could therefore not have intended to
_________________________
citing Kimtruss Corp., 305 NLRB 710 (1991).” The charging party cites in its brief several cases
for the proposition that a violation can be found for matters fully litigated regardless of whether
they are set forth in the complaint. I do not find those cases to be applicable here, nor do I find
the facial validity of the all standards clause to have been fully litigated in view of the General
Counsel’s announcement at the hearing that the facial validity of the clause was not at issue. I
am convinced that BOMA and Local 1 would have at a minimum briefed the matter differently had
they not been advised that the General Counsel’s theory was limited in such a manner. See,
Teamsters Local 282 (E.G. Clemente Contracting), 335 NLRB 1253, 1254 (2001). Accordingly, I
have not addressed the facially validity of the clause herein, although I have found with the
reliance upon extrinsic evidence that the all standards clause is an unlawful union signatory
clause. Similarly, I reject the charging party’s contention, first raised in its brief, that Local 1
cannot have a work preservation claim to the work because its membership includes both guards
and non-guards. This argument is not part of the General Counsel’s theory of the case, nor was
it fully litigated.
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leave a gap, whereby contracts which are rendered void and unenforceable as between
the parties, would, in effect, continue as if they were lawful agreements upon which
findings of unfair labor practices could not be based simply because they were executed
more than 6 months prior to the filing of the charge. The effect of the Trial Examiner's
rationale would be to thwart the intent of Congress in enacting Section 8(e).
In cases previously decided we have indicated our belief that the words “to enter into”
must be interpreted broadly and encompass the concepts of reaffirmation, maintenance,
or giving effect to any agreement which is within the scope of Section 8(e). For the
reasons set forth in the cited cases and those discussed below, we are convinced that
such an interpretation is correct. However, in those cases our ultimate finding that a
violation of Section 8(e) had occurred was based on the fact that both the contracting
union and the employer had taken some action by which both had acknowledged and
reaffirmed the current effectiveness and application of the hot cargo clause in their
contract and we held they had thereby “entered into” a hot cargo agreement. The instant
situation presents a question we have not previously considered--whether a violation of
Section 8(e) has occurred where the evidence establishes only that the employer took
action implementing the contract during the period covered by the charge. We believe and
find that this question must be answered in the affirmative and that the Respondent's
action herein is within the prohibition and constitutes a violation of that section of the Act..
(Footnotes and citations omitted.)
In Chicago Dining Room Employees, 248 NLRB 604 (1980), a union entered in a
collective bargaining agreement with an employer association containing an unlawful union
signatory clause outside the 10(b) period. The Board stated that the Board has held that “the
maintenance, enforcement, and reaffirmation of such an agreement within the 10(b) period
constitutes an ‘entering into’ within the meaning of Section 8(e) of the Act.” id at 606. The Board
held that the respondent union by demanding compliance with the agreement and instituting suit
in order to compel compliance reaffirmed the agreement within the 10(b) period. See also,
District Council of Carpenters, 243 NLRB 416, 418 (1979), holding that where a party enforces a
such a clause or requests adherence to its provisions, its conduct satisfies the ‘enter into’
language of Section 8(e) of the Act in terms of whether a charge is timely under Section 10(b) of
the Act. There a charge was deemed to be timely filed when an employer association admitted in
its answer that it intended to give effect to the disputed provision until ordered by the Board or a
court not to do so, and the respondent union had sent out letters to the respondent employer
association notifying the association of its members who subcontracted work to non signatory
subcontractors citing the article at issue within the 10(b) period. See also, Milk Drivers & Dairy
Employees, Local Union 537, 147 NLRB 230, 231 fn. 3, where the Board held, “We agree with
the Trial Examiner that a violation of Section 8(e) is established when a respondent, whether an
employer or a union, ‘enters into’ an agreement unlawful under that section, by insisting on its
enforcement within the Section 10(b) period.” In Heartland Industrial Partners, 348 NLRB No. 72
(2006), the Board found that a Section 8(e) complaint was not time-barred although the charge
did not cite a reaffirmation of the underlying contractual provision that took place with the Section
10(b) period. Noting that the charge was timely with respect to a reaffirmation of the disputed
provision within the 10(b) period, the Board concluded that the union and employer there were
not prejudiced by the complaints reference to a reaffirmation of the disputed agreement that was
not encompassed by the charge.
In Carrier Air Conditioning Co., v. NLRB, 547 F.2d 1178, 1185-6, and 1186 fn. 8 (2nd Cir.
1976), cert. denied 431 U.S. 974 (1977), the court stated as follows:
Our analysis regarding the congressional purpose underlying s 8(e) also helps to
explain why the s 8(e) charge is not barred by s 10(b) of the Act, 29 U.S.C. s 160(b),
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which establishes a six-month limitation period between the occurrence of an unfair labor
practice and the filing of a charge with the NLRB. (FN7) The statute proscribes only
“enter(ing) into” certain agreements, and, if this language were taken to mean that only
the signing were prohibited, the six-month period would have passed here long before
Carrier filed an unfair labor practice charge. The “enter into” language of s 8(e) has not
been so construed, however. Instead, this court and others, as well as the NLRB, have
held that a union may “reaffirm” an agreement, and thus, in effect, “re-enter” into it, by
seeking to enforce it, at least when the enforcement effort itself appears to have a
secondary objective. Danielson v. International Organization of Masters, Mates & Pilots,
521 F.2d 747, 754 (2d Cir. 1975); NLRB v. Local 28, Sheet Metal Workers, 380 F. 2d 827,
839-30 (2d Cir. 1967); Los Angeles Mailers Union No. 9 v. NLRB, 114 U.S. App. D.C. 72,
311 F.2d 121, 123 (1962) (“To seek to give it life is in substance to seek to have it agreed
to, which is no different in substance from seeking to have it entered into”); Bricklayers &
Stone Mason Local 2 (Associated General Contractors), 224 NLRB No. 132, slip op. at
11-13 (1976). See also NLRB v. International Brotherhood of Electrical Workers, 405 F.
2d 159, 164 (9th Cir. 1968) (construing “enter into” language of s 8(b)(4) ), cert. denied,
395 U.S. 921, 89 S.Ct. 1772, 23 L.Ed. 2d 237 (1969); NLRB v. Milk Wagon Drivers Local
753, 335 F.2d 326, 329 (7th Cir. 1964) (same). Because we conclude, as discussed
below, that Local 28's contract enforcement efforts here had a secondary objective, we
hold that the s 10(b) limitation period does not bar a finding that s 8(e) has been violated
in this case. Moreover, once the possibility of a violation within the six-month period is
recognized, “earlier events may be utilized to shed light on the true character of matters
occurring within the limitations period ... .” Local 1424, International Association of
Machinists v. NLRB, 362 U.S. 411, 416, 80 S.Ct. 822, 826, 4 L.Ed. 832 (1960) Harlan J.)
(Harlan, J.). (FN 8)14
* * *
The Board also argues here that the ‘enter into’ language of section 8(e) requires a
showing of a ‘bilateral agreement, ‘where as in the instant case the Union acted
unilaterally. ….if addressed to the fact that only the Union really cared about enforcing the
no subcontracting clause, the argument proves too much, since this must be true of all
‘hot cargo’ agreements. If addressed to a situation in which an employer signs an
agreement and then is reluctant to comply with it, the argument is simply wrong as to both
the facts and the law. The signatory Association here joined with the Union in April, 1973,
in rejecting, through the Joint Adjustment Board (on which they had equal representation),
a proposal to modify the agreement to allow the introduction of Modulines in New York.
Moreover, in connection with the Babies Hospital job, General, a member of the
Association, acquiesced in the Union’s interpretation of the agreement to the extent of
paying the full sum requested by the Union in March, 1975; while Carrier reimbursed

14 The Board has likewise long held that events prior to the 6 months’ statute of limitations may
be used as background to shed light on a respondent’s motivation for conduct within the 10(b)
period. See Grimmway Farms, 314 NLRB 73, 74 (1994), enf. denied in part on other grounds 85
F.3d 637 (9th Cir. 1996) (where the Board considered a work stoppage outside the 10(b) period
as background evidence for a respondent’s refusal to rehire employees); and Douglas Aircraft
Co., 307 NLRB 536 fn. 2 (1991) enfd. 66 F.3d 336 (9th Cir. 1994) (where it was held that
discipline outside the 10(b) period could be considered as evidence of animus to evaluate a
discharge within the 10(b) period.). Similarly, statements occurring outside the 10(b) period may
be used as evidence to shed light on a respondent’s conduct within the 10(b) period. See,
Wilmington Fabricators, Inc., 332 NLRB 57, 58 fn. 6 (2000); and Kaumograph Corp., 316 NLRB
793, 794 (1995).
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General, it did so only because General refused to proceed with installation of the
Modulines until the grievance was settled. To the extent that an interpretation of an
agreement is reflected in actions, therefore, it seems clear that the anti-Moduline
interpretation here was bilateral one. Finally, even if no acquiescence at all by the sheet
metal contractors could be found, this fact would not affect the agreement’s validity under
s 8(e). This court has recently held that a union can unilaterally reaffirm an agreement
violative of s 8(e) merely by making a demand for compliance; actual compliance by the
signatory employer need not be shown. Danielson v. International Organization of
Masters, Mates & PiIots, 531 F.2d 747, 754 n.8 (2d Cir. 1975).
In Carrier Air Conditioning, the court stated, “We agree with the Ninth Circuit that a facially valid
agreement may be invalid for 8(e) purposes in particular factual contexts.” id. at 1185. The court
stated, “On an issue like this one, words in an agreement will often amount to little more than
routine recitations in anticipation of future litigation, such as the reference to work preservation in
the agreement in the instant case,…”. id. at 1185. The court refused to limit its consideration to
the words of the agreement and the circumstances surrounding the making of the agreement.
Thus, the court in Carrier Air Conditioning relied on conduct outside the 10(b) period to conclude
that a subcontracting clause which may have had a valid work preservation purpose as applied to
the installation of other plenums, “as applied to Moduline plenums part of a new type of air
conditioner the no subcontracting clause served only to aid Local 28 in ’trying to acquire work
performed by employees’ of Carrier in Tyler, Texas.’” id. at 1187.
In the present case, the record reveals the 1975 agreement between BOMA and Local 1’s
predecessors contained language pertaining to subcontractors requiring them to observe “the
economic terms and conditions of this Agreement, such as wages, hours and fringe benefits.”
The Agreement allowed the union to file a complaint against the contractor for non-compliance,
provided a procedure for a hearing, and if it was found the complaint was well founded the
contract between the contractor and employer would be terminated. The same subcontracting
language was contained in the parties 1982 to 1987 agreements. No contracts were submitted
into evidence covering the period of 1988 to 2000. Marcus’ testimony reveals that there was a
period when maintenance of economic standards language was not in the contracts pertaining to
subcontracting, which resulted from a jurisdictional fight between two SEIU locals. The testimony
of Marcus revealed that maintenance of economic standards language was removed from the
BOMA agreement around 1988, and union official Cliff testified that such language was not
reinserted until the late 1990’s. However, no agreement containing such language was entered
into evidence for the period covering 1988 until 2001.
Marcus testified that even during the period when there was no economic standards
provision in the BOMA contract for subcontractors some of the buildings on their own required the
contractor to deal with Local 1. He testified, “I saw some of them that specifically said that you
must pay the rates and benefits that are contained in, or excuse me, you must deal with Local 1.
Some of the buildings have said that on their own.” Marcus testified there is “a widespread
practice in the city of Chicago in office buildings, and I have personally been involved in this
where, regardless of the contractor, whether it's security, plumbing, electrical, anything, that
before they enter into the contract they insist that they will have union personnel. And the reason
they do that, is so that every, there won't be any threats of any work stoppage from anybody.
And those are buildings that don't even have contracts of any kind with the plumbers, with the
pipe fitters, with whoever, it's just their practice that they want union people working in the
buildings.”
A subcontracting standards provision resurfaced in BOMA and Local 1’s 2001 agreement
for security employees. However, the prior language limiting the subcontractors’ requirement to
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the economic terms and conditions of the agreement was now replaced with a provision that read
in Article XXIII that “any subcontractor that does not have a collective bargaining agreement with
the Union, the Employer shall required that said contractor will meet all of the standards of this
Agreement.” The subcontract article also stated that, “In the event that the Employer
subcontracts to a security contractor which is a party to a collective bargaining agreement with
the Union, the terms and conditions of this Agreement shall be the only terms and conditions
applicable to said contractor and its employees working in the Employer’s buildings
notwithstanding the particular terms and conditions contained in any collective bargaining
agreement between the Union and such security contractor.” Article XXIII in the 2001 BOMA
Local 1 agreement did not reference the agreement’s grievance-arbitration procedure. In fact,
Article XVIII, Section 6 of the grievance arbitration procedure stated, “The grievance procedure
set forth in this Article shall not apply to differences or disputes involving employees of
contractors engaged by the Employer pursuant to Article XXIII which are subject to resolution
under grievance procedures established by and between the contractor and the Union.”
Ballenger, the security director for Local 1, credibly testified that Local 1 sought to enforce
the subcontracting all standards provision in Article XXIII in 2003. Ballenger credibly testified a
grievance was filed and it was Local 1’s position that the economic terms and conditions
pertaining to Article XXIII “means all the economics, the wage rates, the health and welfare, the
pension – “ and vacations. She explained that included payments to those SEIU funds contained
in the contract. Ballenger testified there had been one contractor performing security work in
BOMA buildings that was not signatory to a contract with Local 1. She testified it was Local 1’s
position that the subcontractor had to make payments, “to the union’s funds and the economic
terms, or benefit levels to the security officers.” Ballenger testified that Local 1 filed a grievance
against BOMA to make the subcontractor make the funds contributions. She testified the
grievance was filed against BOMA because it was a non-signatory contractor. She testified, “it
went to the grievance hearing with BOMA.” She testified there was a meeting held between the
building manager, SEIU, and BOMA. Ballenger testified that, as a result, the BOMA member
employer operating the building put the security contract out for bid, obtained a union contractor,
and replaced the non union contractor that had been servicing the building. Ballenger testified
the employer got rid of the contractor, “Because they were a BOMA signatory building and they
were bound by the BOMA agreement with Local 1.” Ballenger testified that if the Article XXIII
language was the same in the current contract as that which was contained in the contract in
effect in 2003 then her interpretation of that language would be the same for the current
agreement. Ballenger credibly testified the 2003 grievance went to the labor management
committee.
BOMA and Local 1 strengthened the “all standards provision” in their 2004 agreement
from that contained in the 2001 agreement. As in 2001, Article XXIII-Subcontracting included the
following language, “any subcontractor that does not have a collective bargaining agreement with
the Union, the Employer shall require that said contractor will meet all of the standards of this
Agreement.” As in 2001, Article XXIII in 2004 states that, “In the event that the Employer
subcontracts to a security contractor which is a party to a collective bargaining agreement with
the Union, the terms and conditions of this Agreement shall be the only terms and conditions
applicable to said contractor and its employees working in the Employer’s buildings
notwithstanding the particular terms and conditions contained in any collective bargaining
agreement between the Union and such security contractor.” However, the 2004 version of
Article XXIII now provided that grievances alleging that a contractor is not faithfully observing the
terms of this agreement shall be processed in accordance with the grievance and arbitration
procedures set forth in Article XVIII. If it is determined by the Committee in the third step or in
subsequent arbitration proceedings between the Union and the contractor that the grievance is
well founded and the contractor thereafter refuses to implement the remedy imposed, the contract
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between the contractor and the Employer shall be terminated within sixty (60) calendar days after
written notice by the Union to the Employer.
Marcus testified contractors who have employees working in BOMA buildings regularly
participate in the BOMA grievance procedure. Marcus testified that during the 2004 contract
there were between 35 and 40 grievances involving security personnel that made it to the labor
management committee and that, “every single contractor who participated in those, in that
procedure had a collective bargaining agreement of it's own with the SEIU.” Marcus testified that
according to the BOMA agreement, if the contractor is a signatory to an agreement with Local 1,
and they are working as a contractor in a BOMA signatory building the collective-bargaining
agreement that BOMA has negotiated prevails over whatever differences there are between that
contract and the contractor’s own contract with Local 1. Marcus testified the grievance procedure
established under the BOMA agreement supplants the grievance procedure in the contractor’s
agreement. He testified that while there were no grievances during the 2004 agreement alleging
that a contractor totally failed to abide by the terms of the BOMA agreement, there were
grievances alleging such things as failure to pay vacation pay.
On September 13, 2006, BOMA distributed to BOMA employer members as well as to
security contractors who work in BOMA buildings a BOMA labor relations manual that contained
the following provision:
If the subcontractor is not a party to an agreement with the Union, building shall require
contractor to meet all of the stands of the BOMA/CHICAGO-SEIU, Local 1 Security
Agreement.
Ballenger identified a contract that Local 1 had with Wackenhut with effective dates of
April 26, 2004, to April 29, 2007. She testified the contract was no longer in effect at the time of
the hearing taking place on June 11 and 12, 2007, although Wackenhut was still working in
BOMA buildings. The Wackenhut contract contains the following provision:
If there is any conflict between the BOMA/SEIU Local 1 Security Collective Bargaining
Agreement and this Agreement in BOMA Security Signatory Buildings, the parties to this
Agreement agree that the BOMA/SEIU Local 1 Security Collective Bargaining Agreement
shall govern and agree to be bound by the terms and conditions of the BOMA/SEIU Local
1 Security Collective Bargaining Agreement.
The Agreement Local 1 had with Wackenhut contained Article XXIV, Subcontracting allowing
Wackenhut to subcontract work under certain conditions, including that Wackenhut “require that
said contractor will meet all of the standards of this Agreement.”15 Ballenger testified that all 25

15 The Wackenhut agreement contains the same subcontracting restrictions listed in the
BOMA agreement. The Wackenhut agreement states, “In the event that the employer
subcontracts to a security contractor which is a party to a collective bargaining agreement with
the Union, the terms and conditions of this Agreement shall be the only terms and conditions
applicable to said contractor and its employees working in the Employer’s building
notwithstanding the particular terms and conditions contained in any collective bargaining
agreement between the Union and such security contractor.” It states “Grievances alleging that a
subcontractor is not faithfully observing the terms of this Agreement shall be processed in
accordance with the grievance and arbitration procedures set forth in Article XIX.” It states if it is
determined in the proceedings the grievance is well founded and the subcontractor refuses to
implement the remedy imposed, the contract between the subcontractor and the Employer shall
Continued
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contractors performing security work in BOMA buildings, with the exception of Wackenhut, had
signed an agreement with Local 1 similar to the one Wackenhut signed.
Ballenger testified she was familiar with the clause at issue in this proceeding, the all
standards clause, and that Local 1 took action to enforce the clause against Wackenhut. She
testified that Local 1 filed a grievance against a BOMA building using Wackenhut and the
grievance was filed the week of the unfair labor practice trial.
I have concluded that Section 10(b) of the Act does not preclude the processing of the
complaint allegations in this case. While the General Counsel has asserted that the all standards
subcontracting clause is ambiguous and therefore on its face does not constitute a union
signatory clause, extrinsic evidence reveals that such was the intent of BOMA and Local 1 by
incorporating the clause in their 2004 agreement. Ballenger’s testimony reveals that in 2003,
Local 1, filed a grievance against BOMA because one of its member buildings used a non union
subcontractor which was failing to make payments to Local 1’s contractual fringe benefit funds.
Local 1 officials met with representatives of BOMA and the building management. The grievance
was settled by having the offending contractor removed and replaced by a union contractor.
Thereafter, BOMA and Local 1 strengthened the subcontracting provision of the BOMA 2004
agreement, by making it enforceable in the contractual grievance procedure against an offending
subcontractor with the specific penalty of removal. The BOMA agreement specifically states the
terms of the BOMA agreement supersede the terms of any agreement a contractor may have
with Local 1, and Marcus testified the BOMA grievance procedure applies to contractors who sign
agreements with Local 1, rather than the grievance procedure incorporated in the subcontractor’s
contract. Marcus, one of the principle negotiators to BOMA’s agreement with Local 1, testified
that he was aware that many Chicago buildings only wanted to use union contractors to prevent
labor disputes.
The Board has found subcontracting clauses requiring health and welfare plans to provide
a specific level of benefits to be violative of Section 8(e). In this regard, the provisions do not
seek to preserve unit work for unit employees but seek to dictate the benefits payable to the
subcontractor’s employers. See, Heavy, Highway, Building and Construction Teamsters, Et Al,
227 NLRB 269, 273 (1976); and District Council of Carpenters of Portland, 243 NLRB 416, 423
(1979), holding that a provision requiring payment to a union’s benefit funds in a subcontracting
provision is secondary in nature in that it is without regard to the whether the subcontractor is
already providing equivalent costs and benefits to its employees, and the payments to the funds
would not be used to the benefit of employees of the nonsignatory contractors, but rather for the
general membership participating in the funds.
In sum, in 2003 both BOMA and Local 1, have applied the all standards clause to
terminate a subcontractor who failed to make contractual fringe benefit funds. Ballenger testified
she would apply the language in the current agreement in the same fashion. Moreover, the
accompanying language to the all standards provision such as the requirement to use the BOMA
grievance procedure by subcontractor’s employees and superseding of BOMA contractual
provisions to those of the subcontractor’s contracts reveals that it was BOMA and Local 1’s intent
to use the all standards provision as a union signatory clause. I have concluded that within the
10(b) period BOMA reaffirmed the all standards provision by distributing a labor relations manual
to its members and subcontractors specifically incorporating the language of that provision. I
have also concluded that Local 1 reaffirmed the all standards provision when during the very
week of the unfair labor practice trial; Local 1 filed a grievance against Wackenhut attempting to
_________________________
be terminated within (60) calendar days after written notice by the Union to the Employer.
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enforce the provision. Ballenger’s testimony confirms the success of the signatory nature of the
all standards provision when she testified that all of the approximately 25 security contractors
performing work in BOMA buildings, except Wackenhut, had signed agreements with Local 1,
and that those agreements required the terms of the BOMA agreement supersede the
subcontractor’s agreement with Local 1. This conclusion is bolstered by the fact that language in
predecessor agreements between BMA and the SEIU only required the contractors to adhere to
the economic terms of those agreements, while the current language requires them to adhere to
all standards of the agreement.
Thus, I have concluded that it was the intent of BOMA and Local 1 to use the all standards
language as a union signatory provision, and that BOMA by distributing the labor relations
manual in September 2006, and Local 1, by filing a grievance against Wackenhut in June 2007,
reaffirmed or “entered into” the provision within the 10(b) period, See Dan McKinney Co., 137
NLRB 649, 653-654 (1962); Chicago Dining Room Employees, 248 NLRB 604, 606 (1980);
District Council of Carpenters, 243 NLRB 416, 418 (1979); Milk Drivers & Dairy Employees, Local
Union 537, 147 NLRB 230, 231 fn. 3; Heartland Industrial Partners, 348 NLRB No. 72 (2006); and
Carrier Air Conditioning Co., v. NLRB, 547 F.2d 1178, 1185-6, 1186 fn. 8 (2nd Cir. 1976).16 I find
that BOMA’s actions in maintaining and reaffirming the provision are violative of Section 8(e) of
the Act. See, Heavy, Highway, Building and Construction Teamsters, Et Al, 227 NLRB 269, 273
(1976); and District Council of Carpenters of Portland, 243 NLRB 416, 423 (1979).

16 Local 1 argues in its brief that there must be bi-lateral conduct by parties to a contract
within the 10(b) period in order to find a violation of the Act when a subcontracting clause is
ambiguous on its face. Local 1 cites Sheet Metal Workers Local 27, 321 NLRB 540 fn. 1 (1996),
where the Board stated in passing that, “as a matter of law, solely unilateral conduct by a union,
for example, a threat of picketing or the mere filing of a grievance, to enforce an unlawful
interpretation of a facially lawful contract clause does not violate Sec. 8(e) because such conduct
does not constitute an “agreement.” However, in Sheet Metal Workers Local 27, the Board noted
that the Union’s successful processing of a grievances driven by an unlawful interpretation of a
facially valid subcontracting clause and the obtaining of an adjustment board award pursuant to
those grievances constituted the requisite “agreement” for an 8(e) violation. In the instant case, I
have found that both BOMA and Local 1 attempted to enforce the all standards provision within
the 10(b) period. Moreover, rather than finding the provision to be benign and ambiguous, I have
concluded that the history of the provision and other extrinsic evidence establish here it was the
intent of BOMA and Local 1 to enforce the provision as a union signatory clause and they did so
with stunning success. I do not find Local 1’s other citations pertaining to its Section 10(b)
argument to be persuasive to the facts involved in the current dispute. In Local 1332, Int’l
Longshoremen’s Assn. AFL-CIO, 151 NLRB 1447, 1450-1 (1965), the Board found that a clause
was clear and unambiguous on its face in that it only applied to work that was historically and
regularly that of ILA members. The Board found the ILA’s attempt to use the clause to obtain
work that was not historically performed by its members was an attempt to force an employer
association to enter into a new and different version of the clause. Therefore, the union’s action
did not constitute a reaffirmation of an existing clause violative of Section 8(e) and there was no
“entering into” the clause within the 10(b) period. Similarly, in Puget Sound District Council, Etc.,
153 NLRB 547 (1965), the Board stated, “The natural reading of the contract clause in question
does not bring it within the prohibition of section 8(e) and the clause was administered in
accordance with its natural meaning. The fact that Respondents contended at times that the
clause meant something which would be within the prohibition of Section 8(e) is relevant to the
section 8(b)(4)(A) issue, but does not support a finding that the clause violated Section 8(e).” In
the instant case, I have found that it was the intent of both BOMA and Local 1 to apply the all
standards clause in an unlawful manner.
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2. The security work is fairly claimable work
for bargaining unit employees
In Teamsters Local 917 (Peerless Importers), 349 NLRB No. 97, slip op. at 2-3 (2007), the
Board set forth the following principles regarding Section 8(e) allegations:
Section 8(e) makes it unlawful for a union and an employer to ‘enter into’ an agreement
expressly or implicitly requiring the employer ‘to cease or refrain from handling, using,
selling, transporting or otherwise dealing in any of the products of any other employer, or
cease doing business with any other person.’ Notwithstanding Section 8(e)'s broad
wording, the Supreme Court has held that Section 8(e) does not prohibit all agreements
that require an employer to cease doing business with another employer. The Supreme
Court and the Board have long interpreted Section 8(e) to permit ‘primary’ agreements
and to prohibit only ‘secondary’ agreements. A valid work-preservation agreement is a
lawful primary agreement. National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 644-
645 (1967). (Footnotes omitted.)
The Supreme Court has established the following analysis for determining whether an
agreement is a lawful work-preservation agreement:
Whether an agreement is a lawful work preservation agreement depends on
‘whether, under all the surrounding circumstances, the Union's objective was
preservation of work for [bargaining unit] employees, or whether the [agreement
was] tactically calculated to satisfy union objectives elsewhere …. The touchstone
is whether the agreement or its maintenance is addressed to the labor relations of
the contracting employer vis-à-vis his own employees.’ National Woodwork, supra,
386 U.S. at 644-645. Under this approach, a lawful work preservation agreement
must pass two tests: First, it must have as its objective the preservation of work
traditionally performed by employees represented by the union. Second, the
contracting employer must have the power to give the employees the work in
question-the so-called ‘right of control’ test of [ NLRB v. Pipefitters Local 638, 429
U.S. 507 (1977)].
It is the General Counsel and Wackenhut’s position that the all standards clause is being
applied to work that is not fairly claimable by the BOMA contractual bargaining unit, and therefore
regardless of whether the clause is found to be a union signatory clause its application to
secondary employers is not work preservation and its maintenance and enforcement is violative
of Section 8(e) of the Act. There was a dispute at the hearing as to who had the burden of proof
to establish whether the work was fairly claimable, with the General Counsel and charging party
asserting that it was BOMA’s and relatedly Local 1’s burden as parties to the contract, while
BOMA and Local 1 argued it was the General Counsel’s burden to establish the work was not
fairly claimable in order to establish a statutory violation.
a. Burden of proof as to fairly claimable work
In the instant case, counsel for the General Counsel called no witnesses but rested after
entering into evidence the subcontract clause referred to as the all standards clause contained in
the BOMA’s agreement with Local 1 providing that if a subcontractor is not a party to an
agreement with the Union, the building shall require the contractor to meet all of the standards of
the BOMA/CHICAGO-SEIU, Local 1 Security Agreement. The General Counsel also, prior to
resting, obtained a stipulation that BOMA distributed a labor relations manual on September 13,
2006, to its member buildings and to security sub-contractors, wherein BOMA reiterated the
applicability of the all standards provision. After the General Counsel and the Charging Party
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rested, BOMA made a motion to dismiss, which was joined by Local 1. BOMA’s premise, as
articulated by its counsel at the hearing, was that it was the General Counsel’s burden to
establish that there was “no such preservation of work defense.” (Tr. 33) BOMA’s counsel
argued at the hearing that, as counsel for the General Counsel conceded, that the clause at issue
is not unlawful on its face, and that the “General Counsel has said, if there is a valid work
preservation basis for it, it is not unlawful at all. And we would submit that in order to determine
that is unlawful, it’s incumbent upon General Counsel to establish that there was no valid work
preservation.” (Tr. 35-36).17 BOMA’s counsel went on to state:
…an agreement is unlawful under Section 8(e) if it, 1) is an agreement of the kind
described in the basic prohibition of that section, eg. an agreement to cease doing
business with another person; 2) it has a secondary as opposed to primary work
preservation objectives; and 3) it is not saved by coming within the terms of the
construction industry proviso.
It seems to me, and Respondent will assert, that those are the three elements that have
to be established. And obviously we don’t have the third element at all in this case
because the construction industry is not involved, but if those are the two elements that
have to be established, General Counsel has established the first one and is totally silent
with respect to the second. We believe that is part of General Counsel’s case. It’s not a
part of our case. (Tr. 39).
I refused to grant the motion to dismiss at the hearing, but allowed BOMA and Local 1 to
further plead the motion in their post-hearing briefs. Both BOMA and Local 1 were given the
option of not presenting a defense, and arguing that the case should be dismissed because the
General Counsel had not met its burden of proof for a violation of the Act. They were cautioned
that if they provided evidence as to work preservation that if might be used in support of finding a
violation. They elected to go forward and provide evidence and have renewed their motion to
dismiss in their post-hearing briefs.
In Local 917, International Brotherhood of Teamsters, 349 NLRB No. 97, slip op. at 3
(2007), the Board majority found that the agreement as issue as interpreted by an arbitrator
impaired the business relationship between two entities. The Board majority then stated unit
employees had historically performed the work and stated, “as discussed above, the ‘work
preservation’ defense has a second prong. If the employer of the unit employees has lost control
of the work, and such loss of control was not initiated by it or at its own volition, the work
preservation defense is not valid one.” Referencing term work preservation as a defense clearly
sends a signal by the Board that it is incumbent on a respondent to prove its validity. Similarly, in
Glens Falls Building and Construction Trades Council, 350 NLRB No. 42 (2007), the Board held
that the complaint was not time-barred under Section 10(b) of the Act, in that the respondent
unions reaffirmed and reentered into their February 20, 1992, letter agreement with Indeck by
filing their state court breach-of-contract lawsuit. The Board also affirmed the ALJ’s finding that
Indeck's promise to the respondents in the letter agreement, i.e., that Indeck's contractor on the
project in question would deal only with subcontractors who had or would enter into a collective-
bargaining agreement with the respondents, is within the scope of the prohibitions of Section 8(e)
because it constitutes an implicit agreement by Indeck not to do business with another person-
specifically, any contractor who would subcontract to nonunion subcontractors. The Board stated
that the central issue in the case was whether the otherwise prohibited letter agreement and the

17 The complaint was only subsequently amended at the hearing to allege that the all
standards clause was unlawful because it required a subcontractor to contribute to the fringe
benefit funds included in the BOMA agreement.
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Trades Council agreement were protected under the construction industry proviso of 8(e). The
Board stated the Respondents bear the affirmative defense burden of proving proviso coverage.
The Board has also stated the burden of proof in determining whether an employer is engaged
primarily in the building and construction industry lies with the party seeking to avail itself with that
Section 8(f) statutory exception. See, Bell Energy Management Corp., 291 NLRB 168, 169
(1988); and Painters, Local 1247 (Indio Paint & Rug Center), 156 NLRB 951 fn. 1 (1966).
In Airline Pilots Association, 345 NLRB 820, 822 (2005), it was stated:
Section 8(e) makes it unlawful for an employer and a union to ‘enter into’ an agreement
expressly or implicitly requiring the employer ‘to cease or refrain from handling, suing,
selling, transporting or otherwise dealing in any of the products of any other employer, or
cease doing business with any other person.”
The Respondent’s grievance and counterclaim have the clear object of forcing
DHL/Airborne to cease doing business with ABX. On its face, therefore, the Respondent’s
conduct is unlawful.
Counsel for the General Counsel argues in her brief that this pronouncement in Air Line Pilots
Association establishes that a prima facie violation of Section 8(e) is established by an agreement
to cease doing business. However, in Airline Pilots Association, the Board majority went to state,
“Our analysis must go deeper. As the Supreme Court has held, even if a contractual provision
has a cease-doing business object, it is lawful if it or its enforcement ‘is addressed to the labor
relations of the contracting employer vis-à-vis his own employees.” The Board majority stated
that the assessment includes an analysis of the whether the work was “fairly claimable” by the
union.” id. at 822. The Board did not address whose burden of proof it was to establish that the
work was fairly claimable. This issue was addressed more specifically in Food & Commercial
Workers Local 367 (Quality Food), 333 NLRB 771, 772 (2001), a case involving a Section
8(b)(4)(ii)(B) allegation, the Board majority stated that, “To establish a work preservation defense,
a union must show that the employer had the right to control the assignment of the work. Here,
however, because the Respondent has failed to show that the work is fairly claimable, QFC’s
right to control the work is irrelevant.” Thus, the Board majority again framed the issue of work
preservation as an affirmative defense to be proven by the respondent, which in that case was a
union. Similarly, in Sheet Metal Workers Local 27, 321 NLRB 540, 540 (1996), in finding that a
respondent union violated Section 8(e) of the Act, the Board noted, “the Respondent did not
establish a valid work preservation claim to justify its interpretation of the subcontracting clause in
the parties agreement.”
BOMA, in support of its motion to dismiss, cited at the hearing In re Bituminous Coal
Wage Agreements, 756 F.2d 284 (3rd Cir. 1985). The clause at issue in that case was different
from the one in the instant case as it addressed trust fund payments required by the signatory
employer if they were not made by the contractor and the court addressed scenarios where the
application of the clause would be different based on a variety of circumstances. The court did
not address burdens of proof, particularly as to an NLRB proceeding involving the General
Counsel and a respondent since this was not a matter brought before the NLRB. In any event,
even had such a discussion occurred, I am bound Board law. Given the difference of the clauses
at issue, the fact that the matter was not related to an NLRB proceeding, and that the court did
not address burdens of proof in a Section 8(e) proceeding vis-à-vis the General Counsel and a
respondent, I do not find that decision instructive towards the outcome in the present case. I also
do not find BOMA’s citation to United Mine Workers, 179 NLRB 479 (1969) to be particularly
helpful in the resolution of the issues in the current case. That case involved the outcome of
extensive litigation concerning the validity of certain provisions in the Mine Workers contracts
peculiar to that industry where the Board majority found that the purchase of ‘supplemental coal’
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was insufficient to establish that the parties entered into the clause at issue for a secondary
purpose. The Board majority concluded it was incumbent on the General Counsel in order to
establish a prima facie case to produce evidence that the clause was actually applied to
supplemental coal, to establish that the clause had a secondary application. The Board did not
discuss burdens of proof therein as to right or control or whether work was fairly claimable.
Similarly, BOMA’s citation to Heartland Industrial Partners, 348 NLRB No. 72, slip op. at 4 (2006),
is not persuasive. There the Board majority stated:
The absence of record evidence, however, falls well short of meeting the General
Counsel’s burden of proving that the challenged clauses have a cease doing business
object. Settled Board law requires us to construe a challenged clause ‘to require no more
than what is allowed by law’ when it is not ‘clearly unlawful on its face.’ General
Teamsters, Local 982 (J. K. Barker Trucking Co.), 181 NLRB 515, 517 (1970), affd. 450
F.2d 1322 (D.C. 1971).
Thus, Heartland merely enunciates the requirement that the General Counsel establish a cease
doing business objective as its prima facie case. That is what the General Counsel contends
here is its burden, and what Respondent’s counsel conceded at the hearing has been met.
In Local 917 International Brotherhood of Teamsters (Peerless Importers, Inc.), 345 NLRB
1010 fn. 2, the Board stated that in deciding a motion to dismiss the standard is to “accept the
complaint's factual allegations as true and construe the complaint in the light most favorable to
the General Counsel.” It was BOMA’s position in its motion that it was the General Counsel’s
burden to establish that the work was not fairly claimable work as part of the General Counsel’s
case in chief. However, in making his argument for dismissal, BOMA’s counsel labeled the work
preservation as a “defense.” (Tr. 33). BOMA’s counsel also conceded the General Counsel had
established the clause at issue had a cease doing business objective. (Tr. 39). After listening to
the party’s arguments and having studied cases provided to me, I concluded it was not
appropriate to dismiss this case at the time of the hearing in that it was my ultimate obligation to
determine whether BOMA and Local 1 engaged in lawful activity. (Tr. 65). The Board majority
recently took a similar approach in a case involving Section 8(e) of the Act in Local 917,
International Brotherhood of Teamsters, 349 NLRB No. 97, slip op. at 3 fn. 11 (2007), stating, “No
party has excepted to the judge’s statement that the General Counsel had the burden of proving
that Peerless did not have the right of control over the disputed work. We conclude that a
violation of Sec. 8(e) has been made out regardless of which party has the burden of proof on this
issue.”
I have concluded that a dismissal of this case because the General Counsel before
resting failed to establish there was no work preservation defense is not warranted. In this
regard, the Board has repeatedly referred to a work preservation claim as a defense to be
established by the respondent. See, Local 917, International Brotherhood of Teamsters, 349
NLRB No. 97, slip op at 3 (2007); Food & Commercial Workers Local 367 (Quality Food), 333
NLRB 771, 772 (2001); and Sheet Metal Workers Local 27, 321 NLRB 540, 540 (1996). The
Board has similarly found the assertion of the construction industry proviso as a defense to be
incumbent on the party asserting it. Glens Falls Building and Construction Trades Council, 350
NLRB No. 42 (2007); Bell Energy Management Corp., 291 NLRB 168, 169 (1988); and Painters,
Local 1247 (Indio Paint & Rug Center), 156 NLRB 951 fn. 1 (1966). Thus, I find the work
preservation claim here is a defense and that it is incumbent on the party asserting it to establish
it, in this case BOMA and Local 1. This is for two reasons. First they negotiated the contractual
provisions in play which BOMA conceded at the hearing have a cease doing business object so it
is incumbent upon them to establish it is for work preservation. Second, they also have readily
available at their disposal the bargaining history, and employment history in the industry showing
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whether the clause was one of work preservation. I do not find persuasive BOMA’s argument
that if the General Counsel does not have to prove work preservation that the General Counsel
would issue complaint in every Section 8(e) case based solely on contract provisions. Not all
subcontracting provisions have a cease doing business objective. Moreover, if a charged party
cooperates in a Section 8(e) investigation, and establishes a valid work preservation defense
then the General Counsel would have no basis to issue complaint. This case is no different than
any other as to whether a charged party elects to cooperate during an investigation.18
Counsel for BOMA conceded at the hearing and I find that the subcontracting provision
here in dispute has a cease doing business objective. This becomes all the more evident when
the subcontracting provision is read in conjunction with the 2004 collective-bargaining
agreements grievance arbitration provisions. The pertinent provisions of the 2004 BOMA and
Local 1 agreement read as follows: Article XXIII-Subcontracting of the 2004 agreement, provides
that, “any subcontractor that does not have a collective bargaining agreement with the Union, the
Employer shall require that said contractor will meet all of the standards of this Agreement.”
Article XXIII further provides that, “Grievances alleging that a contractor is not faithfully observing
the terms of this Agreement shall be processed in accordance with the grievance and arbitration
procedures set forth in Article XVIII. If it is determined by the Committee in the third step or in
subsequent arbitration proceedings between the Union and the contractor that the grievance is
well founded and the contractor thereafter refuses to implement the remedy imposed, the contract
between the contractor and the Employer shall be terminated…”. Thus, I find that the General
Counsel has established a prima facie case that the subcontracting provisions in dispute have a
cease doing business objective. Accordingly, the burden of proof shifts to BOMA and Local 1 to
establish that the clause was for the purpose of work preservation. See, Airline Pilots Association,
345 NLRB 820 (2005); Local 917, International Brotherhood of Teamsters, 349 NLRB No. 97, slip
op at 3 (2007); Glens Falls Building and Construction Trades Council, 350 NLRB No. 42 (2007);
Food & Commercial Workers Local 367 (Quality Food), 333 NLRB 771, 772 (2001); and Sheet
Metal Workers Local 27, 321 NLRB 540, 540 (1996).
b. Fairly claimable work for bargaining unit employees
In circumstances where a union contracts with an employer association the Board will look
to the custom and practice of the bargaining unit as a whole to determine whether the work in
dispute has been customarily performed by employees of employer members. See, Bermuda
Container Line, Ltd. v. Int’l Longshoremen’s Assn., 192 F.3d 250, 256-7 (2nd Cir. 1999); Sheet
Metal Workers Union Local 162, 207 NLRB 741, 748 (1973); Local 282, 197 NLRB 673, 675 fn.

18 Counsel for Local 1 also raised at the hearing a Section 10(b) argument in support of
BOMA’s motion to dismiss and argued there were advice memos issued which support her
position. Advice memos are just positions of the office of the General Counsel. They do not
constitute Board law and are not controlling here. See, Glendale Associated, Ltd, 335 NLRB 27,
34 (2001); and Starlite Cutting, Inc., 280 NLRB 1071 fn. 3 (1986). Moreover, Local 1332, Int’l
Longshoremen’s Assn. AFL-CIO, 151 NLRB 1447, 1451 (1965), cited by Local 1, does not
require a different result. Rather, there the Board held the union was attempting to cause an
association to enter into a new and different version of the litigated clause and that such conduct
did not constitute a reaffirmation of an existing clause violative of Section 10(b) of the Act. Thus, I
adhere to my decision not to dismiss the complaint after the General Counsel and Charging Party
rested. This is particularly so since I have found, as discussed above, that 10(b) is not a bar to
these proceedings.
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10 (1972); Teamsters; United Mine Workers, 179 NLRB 479, 483-4 (1969); and Teamsters,
Chauffeurs, Warehousemen & Helpers, 172 NLRB 1037 (1968).19
Counsel for the General Counsel argues at page 6 of her brief that, “a contract clause
restricting subcontracting in a multiemployer unit has a primary work preservation object if a
majority of the work in question has traditionally been performed by employees in the
multiemployer bargaining unit.” Counsel for the General Counsel further argues that in the instant
case “since a vast majority of security work was not done by unit employees, but rather was being
done by non-unit employees, security work was not fairly claimable ‘unit work’ by a wide margin.
Thus the ASP, when negotiated and agreed to, did not apply to unit work…”.
In NLRB v. International Longshoremen’s Ass’n, AFL-CIO (ILA I), 447 U.S. 490, 505
(1980), the court stated “to determine whether an agreement seeks no more than to preserve the
work of bargaining unit members, the Board must focus on the work of the bargaining unit
employees, not on the work of other employees who may be doing the same or similar work, …”.
The case was remanded to the Board when the court concluded the Board failed to properly
analyze the work in dispute following technological change vis-à-vis the work previously
performed by bargaining unit employees prior to the change. In NLRB v International
Longshoremen’s Ass’n, AFL-CIO, 473 US 61, 83 (ILA II) (1985), the court held that rules on
containers were a lawful work preservation agreement whose enforcement did not have an
unlawful secondary objective. The court made this finding while noting that under the rules on
containers, the ILA had given up some 80 percent of all containerized cargo work.
In American Boiler Manufacture Assn. v. NLRB, 404 F. 2d 547 (CA 8, 1968), cert. denied
398 U.S. 960 (1970), packaged boilers with trim piping attached were introduced and used in the
St. Paul area before 1941. The use of installation of packaged boilers increased rapidly and rose
by 1963 to “sixty to eighty-five percent of all boiler installation.” Prior to the to the use of
packaged boilers, the boilers and the trim piping were shipped separately and assembled on the
jobs site by members of the union. In 1959 and 1961, the union tried unsuccessfully to obtain a
clause in their agreement with the association requiring that trim piping be install by unit
employees. They obtained such a clause in 1963. In upholding the contract clause the court
stated:
Neither of the statements cited by the Association support the view that traditional work
is limited to work which is currently, continuously and exclusively performed by the unit
members. Both statements refer to the possibility of acquiring new jobs or job tasks –jobs
that had never been performed.
We express no opinion as to whether a fabrication clause can be enforced if the
objective is to acquire work which unit employees had never performed or work which
they may have performed in the past but have completely lost before the clause was
negotiated. We hold only that the term ‘traditional work’ includes work which unit
employers have performed and are still performing at the time they negotiated a work-
preservation clause.
It follows from the teachings of National Woodwork that a union can protect this work

19 I do not find as persuasive Wackenhut’s contention that since the bargaining unit has
expanded over the years that at least some or many of the buildings will not have directly
employed security employees and therefore the work is not fairly claimable by Local 1 for at least
those buildings. Wackenhut has cited no case in support for this contention when multiemployer
bargaining units are involved, and the case law set forth above instructs that the bargaining unit
must be considered as a whole in determining whether work is fairly claimable.
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by concerted activities where the objective is to affect the labor policies of the employer
with whom they have a collective bargaining agreement. id. at 552.
* * *
To summarize, we hold that a collective bargaining agreement which seeks to preserve
work currently being performed by unit employees and to reacquire that portion lost is not
violative of Section 8(e). id. at 554.
In Meat & Highway drivers v. NLRB, 335 F.2d 709 (D.C. Cir. 1964), for at least 20 years,
meat packers in Chicago had agreed with a union that deliveries of meat products by truck within
the Chicago area would be made directly by the packers, using their own equipment driven by
their employees represented by the union. As a result of changes in the industry, the major
packers moved much of their slaughtering and processing operations outside of Chicago. Of
about 330 drivers employed by three of the major the packers at the beginning of the prior
contract term in May 1958, only 80 were still employed 3 years later when negotiations began for
a new agreement. Deliveries to customers within the Chicago area were increasingly being made
by over-the-road drivers. The court held that delivery in the Chicago area, irrespective of origin of
the shipment is work fairly claimable by the union in that it was work that employees in the
bargaining unit had the skills and experience to do and a union is always free to bargain for
expansion of work opportunities. The court stated in the case before them was not work one of
work acquisition but recapture.
Teamsters, Chauffeurs, Warehousemen & Helpers, 172 NLRB 1037 (1968), the Board
majority held that Article 17 is a lawful wage standards provision designed to assure that Yolo
and other trucking concerns bound by the multiemployer contract do not perform unit work
through outside contractors whose wage and fringe benefits costs are inferior to those of Yolo
and other employers within the multi-employer unit. Yolo’s work at issue was seasonable for that
employer, which neither had the trucks nor manpower to perform the work itself, and Yolo had
subcontracted the work for many years. In upholding the provision as applied to Yolo and its
subcontractor, the Board majority noted that the hauling contracted out entailed the same skills as
held by Yolo’s permanent work force and did not differ significantly from that historically
performed in the multiemployer unit. It was noted that Yolo’s permanent work force was
occasionally called upon to perform the seasonal operations normally contracted out to
subhaulers. Yolo had on its staff 12 trucks and 12 drivers. During the agricultural season it
increased its trucks and drivers up to 80 each by hiring owner operators and subcontracts. The
Board majority held that the work subcontracted out to the charging party subcontractor work was
fairly claimable by the Union.
In the present case, information gathered by BOMA, or its predecessor for the 1984
collective-bargaining agreement showed that there were 34 buildings covered by the agreement,
that 31 buildings had in house security crews, and 3 buildings had both in house and contract
employees. The summary showed there were 200 persons working for in house crews and there
were six security employees working for contractors. Marcus testified that those individuals
covered by the 1984 elevator operator and starter agreement were employed 100 percent by the
buildings and were always employed by the buildings. The elevator employees were eventually
incorporated into the security employees bargaining unit. The summary compiled by BOMA from
the building members for the 2001 contract negotiations with Local 1 shows that there were 139
signatory buildings for the 2001 agreement, the first agreement containing the all standards
provision. The summary shows that for the 2001 negotiations there were 310 security personnel
employed directly by the buildings working in 45 buildings and there 900 individuals working for
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contractors working in 106 buildings.20 The summary of information gathered by BOMA for the
negotiation of the 2004 contract, presently in dispute, showed there were 165 buildings signatory
to that contract. The summary shows that for the 2004 agreement there were 38 buildings
directly employing 294 security personnel, and that there were 128 buildings using 1196.5
contractor employees as security personnel. Ballenger testified that, at the time of the hearing
in June 2007, Local 1 represented about 500 security officers that work directly for the buildings,
and about 1500 who work for contractors.
Marcus testimony reveals that since at least since the 1980’s to the present, Local 1 or its
predecessor locals had collective bargaining agreements with BOMA or its predecessors where
the collective bargaining units included security employees. The earlier agreements contained an
economic standards clause for subcontracting. As a result of a dispute with a competing SEIU
local, the economic standards clause was dropped from the association agreement until in all
probability the 2001 agreement, when it was replaced by the all standards provision at the heart
of the current dispute. However, I do not find absence of an economic standards clause for a
period of time to be controlling here. Rather, the issue as set forth by the Supreme Court is
whether the work in dispute has been traditionally performed by the bargaining unit to make the
work fairly claimable work. NLRB v. International Longshoremen’s Ass’n, AFL-CIO (ILA I), 447
U.S. 490, 505 (1980).
I have concluded that the work of security officers was traditionally performed by
bargaining unit members, and therefore the work is fairly claimable by Local 1. In 1984, virtually
100 percent of the security work was performed by in house security employees. While no

20 Marcus cited an example of some Lurie owned buildings where he testified that the security
services were contracted out to wholly owned subsidiaries of Lorie in an attempt to raise a joint
employer argument between building owners and security contractors. However, Marcus testified
that the Lurie company was an exception the general rule, in that most BOMA buildings that
contract out security work do not contract the work to their subsidiaries, rather the work is
contracted to independent companies. Along these lines, Caravelli was employed by JLL since
2001, and he is the director of security a building called One Financial Place managed by JLL.
Caravelli testified there are currently 22 security officers at One Financial Place, including one
site supervisor, six supervisors, and 16 security officers. Caravelli testified that at One Financial
Place everyone on the security staff, except for Caravelli, is employed by a contractor, which is
Argus Security Services. Caravelli testified he has been involved in the contractor’s hiring
process of security employees, and that the building can tell the contractor to pay security officers
above the minimum contractual rates since the building pays the increase. Caravelli testified if an
employee filed a grievance it would be between the employee and Argus, the subcontractor.
Caravelli has been involved with Argus promoting someone to supervisor. He testified it is a joint
process. However, Caravelli recommended a person for supervisor who was rejected for the
position by Argus. Caravelli testified that Argus is the ultimate decision maker as to whether an
employee is to be disciplined. Caravelli identified a list of 13 buildings in the Chicago area, which
he testified were managed by JLL. He testified he was familiar with the security activities at some
of the buildings, but he was not asked and did not testify as to how any of the other buildings
were operated in terms of security, aside from One Financial Place. Given, Marcus’ admission
that most BOMA buildings do not contract out security services to their subsidiaries, and the
limited specifics provided about the operations of any but a few buildings, I do not find that BOMA
has raised a legitimate joint employer argument for security subcontractors operating in BOMA
buildings. Moreover, even if there were a joint employer finding as to some of the security
contractors, it does not establish whether they or not they were persons under Section 8(e)’s
prohibitions.
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statistics were presented for the period between 1984 and 2001, there is no contention and I
have concluded that there was never a period when all of the work was completely contracted
out. Rather, the evidence reveals that the number of BOMA building members continued to
increase over the years, and the percentage of security work performed by bargaining unit
employees continued to decline. Thus, there went from 34 signatory buildings in 1984, to 139 in
2001. In 1984, 100 percent of the buildings employed in house security employees. In 2001,
approximately 32 percent of the buildings directly employed security officers, representing about
26 percent of the security officers employed in BOMA member buildings and the remainder of the
work was contracted out. The summary collective for the 2004 agreement showed that about 23
percent of the member buildings used in house security personnel, representing about 25 percent
of the security officers used in the buildings. Ballenger’s testimony reveals that at the time of the
hearing about 25 percent of the security work was performed by employees working directly for
the buildings. I have concluded that the employees of employer members of the bargaining unit
have traditionally and consistently performed such work over a lengthy period of time, and
performed about 25 percent of such work at the time 2004 agreement, and it predecessor
agreement were entered into. In these circumstances, the case law indicates, and I so find that
the security work was fairly claimable by Local 1 for the BOMA bargaining unit. See, NLRB v
International Longshoremen’s Ass’n, AFL-CIO, 473 US 61, 83 (ILA II) (1985); American Boiler
Manufacture Assn. v. NLRB, 404 F. 2d 547 (CA 8, 1968); Meat & Highway drivers v. NLRB, 335
F.2d 709 (D.C. Cir. 1964); and Teamsters, Chauffeurs, Warehousemen & Helpers, 172 NLRB
1037 (1968).
I do not find cases cited by the General Counsel to warrant a contrary result. In Sheet
Metal Workers Union Local 162, 207 NLRB 741, 749 (1973), the Board approved the judge’s
finding of a Section 8(e) violation pertaining to the maintenance of a subcontracting provision.
There the judge stated that:
Thus, while it has been shown that contractors can, and in some instances do, fabricate
round pipe and fittings, this comes about only in exceptional situations and to meet special
needs. If we are to establish a practice of custom and tradition in an industry, it must be
shown that at least a majority of the commercial round pipe needs have been met by
having the contractors regularly assign the fabrication to their own employees, or regularly
purchase the disputed items from employers paying the construction local scale. The
record here establishes the exact reverse. The regular pattern, with but few deviations,
has been to have the round pipe needs on the commercial jobs met by purchase from
mass production manufacturers whenever such items were available and I so find.
Accordingly, I am satisfied and find that there is insufficient evidence to establish that the
unit employees have ever engaged in the fabrication of round pipe items for use on jobs in
excess of 3,200 square feet, with sufficient regularity or in the sufficiently recent past to
support the assertion that such work is fairly claimable as unit work or entitled to be
recaptures as unit work.
* * *
Here I have found that with only few exceptions, and these of a limited nature, the
overwhelming majority of contractors have for a long period of time been purchasing their
round pipe items from manufacturers, and not assigning the work of fabricating such items
to unit employees. id. at 749-750.
In Sheet Metal Workers Union Local 162, the judge noted that of the 35 contractors who appear
to engage in commercial work in excess of 3,200 square feet, the overwhelming majority
purchase from 90 to 100 percent of the round pipe and fittings each uses on his construction jobs
from mass production manufacturers, and this has been a continuous practice on the part of most
of the contractors for periods ranging up to 20 years. The judge noted the contractors follow this
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practice because they regarded the products purchased as substantially cheaper and better
quality than it would be possible for most contractors to fabricate in their shops with the limited
hand-operated equipment they possess. The judge stated, with but few exceptions, the
contractors only fabricate round pipe fittings when the special needs of a particular job cannot be
filled with items catalogued by manufacturers, or when catalogued items are not readily available
on short notice.
While the judge in Sheet Metal Workers Local 162, used sweeping language that for
custom and practice to be met at least a majority of the commercial round pipe needs must have
been met by contractors regularly assigning such work to their own employees this
pronouncement is contrary to the precedent cited above and not necessitated by the facts of the
Sheet Metal decision itself where the judge found that, with few exceptions the contractors there
only fabricated the work themselves when the job had special needs such that it could not be
filled by the manufacturers, or when an order was needed on short notice. Such is not the case
for the security work in the present case where there is a lengthy history of bargaining unit
employees performing the work, and at the time of the contract in dispute still about 25 percent of
it was performed in house.
In Marine Officers Association, 260 NLRB 1360 (1982), cited by the General Counsel, the
union represented an employer’s crews on boats for a period of 6 to 9 years. The employer then
completely charted out the work for a 3 year period, with little protest by the union. The Board
noted that the union had full knowledge in the change at the time it occurred, and that the union,
“by sitting on its rights for almost 3 years after the complained-of conduct, must be deemed to
have acquiesced to the Employer’s change in operations.” The Board stated that the union could
no longer claim that its picketing in 1979 and 1980 had a work-preservation objective in that
having acquiesced to the changes in 1977, the union no longer had a labor dispute with the
employer. Similarly, in Newspaper & Mail Deliverers (B & W Distributors), 274 NLRB 929 (1985),
an employer’s drivers had not picked up disputed work for 10 years, and the union was aware of
it for 6 years, during which it made no effort to secure the work. There it was concluded that by
its acquiescence the union had waived any claim it might have had that its object in claiming the
work was for work preservation. Thus, in both of these cases, cited by the General Counsel,
there was a break in time when no bargaining unit employees performed the disputed work, and it
was concluded that by the unions’ acquiescence they had waived their claim to the work. Such is
not present here, as the evidence reveals that a significant portion of the security work as been
consistently been performed in house by crews employed directly by the buildings.
In sum, I find that the security work in dispute is fairly claimable for bargaining unit
employees covered by the 2004 agreement negotiated between BOMA and Local 1. However,
as set forth above, I have also found that BOMA has violated Section 8(e) of the Act by entering
an agreement with Local 1 using the all standards clause as a union signatory clause.
CONCLUSIONS OF LAW
1. Respondent BOMA/Chicago (BOMA) and its employer members who are parties to the
2004 collective bargaining agreement with Service Employees International Union Local 1 (Local
1), are each employers within the meaning of Section 2(2) of the Act, and are engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Local 1 is a labor organization within the meaning of Section 2(5) of the Act.
3. By entering into, maintaining, and giving effect to a provision in the 2004
BOMA/Chicago-SEIU, Local 1 collective-bargaining agreement between BOMA, on behalf of
certain employer members, and Local 1, specifically Article XXIII Subcontracting providing in
pertinent part that “any subcontractor that does not have a collective-bargaining agreement with
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the Union, the Employer shall require that said contractor will meet all of the standards of this
agreement” and applying such provision to require subcontractors to observe and be bound by
the agreement’s requirements for payments into its fringe benefit funds and by otherwise in effect
requiring security subcontractors as a condition of their contract to become signatories to an
agreement with SEIU Local 1, BOMA has violated Section 8(e) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found Respondent BOMA has engaged in certain unfair labor practices, I shall I
recommend that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Noting that: the all stands subcontracting language has been
used as a union signatory clause, in that in 2003 a non-signatory union subcontractor was
removed from a BOMA member building for failing to contribute to the contract’s benefit funds;
that all 25 current security subcontractors, save one, are signatories with Local 1; that a
grievance was lodged against the one which is not under the all standards provision of the BOMA
agreement; that the same all standards provision is incorporated in all of the subcontractors
collective-bargaining agreements with Local 1, and that the subcontractors collective bargaining
agreements require that they be bound by the terms of the BOMA agreement including its
grievance procedure, regardless of what they have individually negotiated Local 1, I have
concluded it was the intent of BOMA and Local 1 that the all standards language constitute a
union signatory clause and therefore it should be expunged from the BOMA agreement with Local
1 and any successor agreements thereto. Since I have found the security work is fairly claimable
bargaining unit work, this remedy does not prevent BOMA and Local 1 from negotiating lawful
and unambiguously non signatory subcontracting language for future agreements.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended21
ORDER
Respondent BOMA, its officers, agents, and representatives shall:
1. Cease and desist from:
(a) Entering, maintaining, or enforcing the provision in the 2004 BOMA/Chicago-SEIU,
Local 1 collective-bargaining agreement, or its successor agreements, specifically Article XXIII
Subcontracting providing in pertinent part that “any subcontractor that does not have a collective-
bargaining agreement with the Union, the Employer shall require that said contractor will meet all
of the standards of this agreement” in a manner that requires subcontractors to observe and be
bound by the agreement’s requirements for payment of monies into its fringe benefit funds, and in
any other manner requiring the subcontractors to become signatory to a collective bargaining
agreement with SEIU Local 1, or any other labor organization.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Remove the language that “any subcontractor that does not have a collective-
bargaining agreement with the Union, the Employer shall require that said contractor will meet all
of the standards of this agreement” from Article XXIII of the BOMA/ Chicago-SEIU Local 1, 2004

21 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
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collective bargaining agreement and any successor agreements, as well as any publications and
labor relations manuals.
(b) Within 14 days after service by the Region, post at BOMA’s offices and locations in
Chicago, Illinois copies of the attached notice marked “Appendix.” 22 Copies of the notice, on
forms provided by the Regional Director for Region 13, after being signed by BOMA’s authorized
representative, shall be posted by the BOMA immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places where notices to employer members
and employees are customarily posted. Reasonable steps shall be taken by BOMA to ensure that
the notices are not altered, defaced, or covered by any other material. In the event that, during
the pendency of these proceedings, the BOMA has gone out of business or closed its Chicago
facilities, BOMA shall duplicate and mail, at its own expense, a copy of the notice to all persons
who were employed by the BOMA, since September 13, 2006.
(c) Within 14 days after service by the Region of the attached notice marked “Appendix”
said notice shall also be duplicated and mailed, at BOMA’s expense, to all its current and former
members since September 13, 2006, and to any subcontractors of those current and former
members, who have provided security services for a BOMA member building since that date.
(d) 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.
(c) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges in
theory that security work was not fairly claimable work for the collective-bargaining unit described
in the 2004 BOMA/SEIU Local 1 collective bargaining unit.
Dated, Washington, D.C. December 21, 2007
_______________________
Eric M. Fine
Administrative Law Judge

22 If this Order is enforced by a Judgment of the 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.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT enter, maintain, or enforce the provision in the 2004 BOMA/Chicago-SEIU,
Local 1 collective-bargaining agreement, or its successor agreements, specifically Article XXIII
Subcontracting providing in pertinent part that “any subcontractor that does not have a collective-
bargaining agreement with the Union, the Employer shall require that said contractor will meet all
of the standards of this agreement” in a manner that requires subcontractors to observe and be
bound by the agreement’s requirements for payment of monies into its fringe benefit funds, and in
any other manner requiring the subcontractors to become signatory to a collective bargaining
agreement with SEIU Local 1, or any other labor organization as a condition of performing
security work for BOMA employer members.
WE WILL remove the language stated above from Article XXIII of the BOMA/ Chicago-
SEIU Local 1, 2004 collective bargaining agreement and any successor agreements, as well as
any publications and labor relations manuals, and notify all BOMA members, and security
contractors of BOMA members in writing that his has been done by mailing them a copy of this
notice as provided for in the Board’s decision.
BUILDING OWNERS AND MANAGERS OF
CHICAGO
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
209 South LaSalle Street, 9th Floor Chicago, Illinois 60604
Hours: 8:30 a.m. to 5 p.m.
312-353-7570.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 312-353-7170.