General Service Employees Union

National Labor Relations Board - Board Decisions

Jan 8, 1979

239 N.L.R.B. 1233 (N.L.R.B. 1979)

GENERAL SERVICE EMPLOYEES UNION
General Service Employees Union Local No. 73, affi-
liated with Service Employees International Union,
AFL-CIO and Mack Leonard d/b/a Rainey's Se-
curity Agency. Case 13-CP-359
January 8, 1979
DECISION AND ORDER
By MEMBERS JENKINS. MURPHY, AND TRUFSDAI F
On July 14, 1978, Administrative Law Judge Hut-
ton S. Brandon issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a cross-exception with a brief in support thereof. The
General Counsel filed a brief in answer to Respon-
dent's exceptions, and Respondent filed a brief in
opposition to the General Counsel's cross-exception.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
We agree with the Administrative Law Judge, for
the reasons fully stated by him, that by threatening
to picket and by picketing Mack Leonard d/b/a
Rainey's Security Agency with an object of forcing
or requiring Rainey's to recognize and bargain with
it as collective-bargaining representative of Rainey's
guard employees Respondent violated Section
8(bX7)C) of the Act because Respondent had not
been and could not be certified as representative of
such employees by virtue of Section 9(bX3) of the
Act, because it represents guards and admits non-
guards into membership. Additionally, we agree that
Respondent violated Section 8(b)(7)(A) of the Act
because Rainey's had lawfully recognized another la-
bor organization and a question concerning repre-
sentation could not appropriately be raised. We fur-
ther agree with the Administrative Law Judge that a
broad remedial provision ordering Respondent to
cease and desist from engaging in such unlawful con-
duct with regard to this employer or any other em-
ployer is warranted.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dr, Wall Prductrs. In,. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carcfulls
examined the record and find no basis for reversing his findings
The General Counsel contends that, in view of Re-
spondent's demonstrated proclivity to violate the
Act, Respondent should also be required to publish
the notice to members herein in a Chicago-area
newspaper in order to insure that the notice of Re-
spondent's conduct and of the Board's remedy reach-
es all interested and potentially affected persons.
Given the scope and breadth of Respondent's unlaw-
ful activities. as evidenced in a series of proceedings
before this Board, we find, in agreement with the
General Counsel, that such publication is appropri-
ate and will effectuate the policies of the Act.
This Respondent has engaged in a continuing pat-
tern of unlawful conduct and has repeatedly been
found to have exerted unlawful primary and second-
ary pressure on guard service employers and their
customers in efforts to induce such employers to en-
ter into collective-bargaining agreements with Re-
spondent. Indeed, Respondent has actually succeed-
ed in coercing some such employers into signing its
standard guard contract without regard to the repre-
sentational desires of the affected employees. Thus,
in numerous cases Respondent has been found to
have violated Section 8(b)(7)(C), 2 Section 8(bX4Xi)
and (ii)(B), 3 and Section 8(b)(l)(A) and (2)4 of the
Act.
Further, subsequent to issuance of the Administra-
tive L aw Judge's Decision herein, we adopted in Gen-
eral Service Employees Union Local No. 73, affiliated
with Service Employees International Union, AFL-
CIO (Andv Frain, Inc.), supra, the Administrative
Law Judge's recommendation that this Respondent
publish the notice therein in a newspaper of general
circulation. As noted in that decision, the traditional
notice-posting requirement is insufficient to reach all
potentially affected persons, given Respondent's
manifest pattern of unlawful conduct and recusant
posture regarding compliance with the Act. Simi-
larly, in the instant case we deem it necessary, in
order to effectuate the policies of the Act, to notify
all interested and potentially affected persons as well
as the parties. Accordingly, we shall order that Re-
General Service Emnployees Union Local No 73. affiliated with Service
Employees International nion, A F. CIO (Andy Frain. Inc.), 230 NLRB 351
(1977): General Service Employees Union Local No 73. affiliated with Service
Emplovees International Union. 4FL CIO (A - I Security Service Co.). 224
NIRB 434 (1976). enfd. 578 F.2d 361 (D.C Cir. 1978): General Service
tEmplovees Union, Local No 73. affiliated with Service Enrplovees Internation-
al I 'nion, A Fl1 ('10(R R S. Inc. Securi4t and Investigation Service Division).
Cases 13 CC 836 and 13-CP 277 (not reported in volumes of Board Deci-
sion)( (1975).
1General Senrvice Emplovees UInon local No 73, affiliated with Service
Emplovees International Union, AFL-CIO (Andv Frain, Inc.), 239 NLRB
295 (1978): Andv Frain. Inc. 230 NLRB 351. supra. RR S. Inc. Securinty
and Investigation Service Division, supra
4General Sensre Emplovees Union Local No 73. Service Entployees Inter-
national Union (Elkwox,d Detertire Agen(ir) 239 NlRB 99 (1978): Man-
aer'ment Safeguardr. Inc. Case 13 CA 15928 (not reported in volumes of
Board Declslions) (1977)
1233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent publish the notice at its own expense in a
newspaper of general circulation in the Chicago
Area. See also United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, Local 428, A FL (Frank
W. Hake), 112 NLRB 1097, 1102 (1955).
ORDER
Pursuant to Section 10(c) of the Nrational Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Gen-
eral Service Employees Union Local No. 73, affiliat-
ed with Service Employees International Union,
AFL-CIO, Chicago, Illinois, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order, as so modified:
Insert the following as paragraph 2(c) and reletter
the subsequent paragraph accordingly:
"(c) Publish, at its expense, the terms of the notice
marked 'Appendix,' in a form and size approved by
the Regional Director for Region 13, in a daily news-
paper of general circulation in the Chicago, Illinois,
area. Publication is to be made on 3 separate days
within a 3-week period at a time designated by the
Regional Director."
MEMBER MURPHY, dissenting:
Contrary to my colleagues, I would not find Re-
spondent to have violated either Section 8(b)(7)(A)
or Section 8(b)(7)(C) of the Act and therefore would
dismiss the complaint in its entirety.
Pivotal to the majority's finding that Respondent
acted unlawfully is its threshold conclusion that
Rainey's employees are guards within the meaning of
Section 9(b)(3) of the Act, and that Respondent is
therefore precluded from representing them because
it admits nonguards into its membership. However,
as I would not find Rainey's employees to be guards
within the meaning of Section 9(b)(3), for the reasons
fully set forth in my concurring opinion in Brink's,
Incorporated, 226 NLRB 1182 (1976),5 I would conse-
quently not find Respondent disqualified from filing
a valid petition to be certified as collective-bargain-
ing representative of Rainey's employees under Sec-
tion 9 of the Act. Thus, since there is no allegation
that Respondent picketed for more than 30 days
As noted in Brink's, supra, it is my view that the term "guards" as used
in Sec. 9(b(3) of the Act refers only to an employer's own plant protection
employees and wes never intended to encompass employees of a separate
contractor providing security services to customer employers. See my dis-
senting opinion in General Service Employees Union Local No 73, affi,',aed
with Service Employees International Union. AFL CIO10 And Frain. Inc).
230 NLRB 351 (1977).
without the filing of such a petition-the only con-
duct prohibited by Section 8(b)(7)(C) of the Act 6 -- I
find no basis in the instant case for concluding that
Respondent violated that section.
The majority further relies on the same corner-
stone assumption that Section 9(b)(3) of the Act ef-
fectively precludes Respondent from raising a ques-
tion concerning representation in concluding that
Respondent violated Section 8(b)(7)(A) of the Act as
well. I disagree with that finding and its underlying
premise, inasmuch as I would not find Respondent
precluded from certification. Therefore, unlike the
majority, I find it necessary to consider whether Re-
spondent nevertheless violated Section 8(b)(7)(A) of
the Act because Rainey's collective-bargaining agree-
ment with the Independent precluded the raising of a
question concerning representation.
Section 8(b)(7)(A) of the Act, simply stated, pro-
hibits a labor organization from picketing or threat-
ening to picket an employer for recognitional or or-
ganizational purposes if the employer has lawfully
recognized another labor organization and a ques-
tion concerning representation may not appropriate-
ly be raised. While a collective-bargaining agreement
with another labor organization will generally oper-
ate to bar a representation petition and election, and
hence preclude the appropriate raising of a question
concerning representation, certain contract infirmi-
ties or unlawful provisions may preclude an other-
wise valid contract from acting as a bar. Thus, a con-
tract containing a union-security provision which is
clearly unlawful on its face, for example, could not
qualify as a bar to an election. Paragon Products Cor-
poration, 134 NLRB 662 (1961). Respondent con-
tends that Rainey's contract with the Independent
contains certain such provisions and thus may not
operate as a bar. I agree.
The Administrative Law Judge cited several provi-
sions of Rainey's contract with the Independent
which are asserted by Respondent to constitute ille-
gal forms of union security. Thus, the contract con-
tains, inter alia, the following provision:
Article V
Notice of Union Membership As A Condition
of Employment
All prospective employees who shall complete
an application for or seek employment with Em-
' As set forth in my dissent in General Service Employees Union Local No.
73, affiliated with Senirce Employees International Union, AFL CIO (A-I
Security Service (o.), 224 NLRB 434 (1976), enfd. 578 F.2d 361 (D.C. Cir
1978). I would not find threats to picket to constitute a violation within the
meaning of Sec. (b)(7XC) of the Act. A review of that provision clearly
demonstrates thai Congress was limiting the proscription of subsection (C)
to actual picketing: otherwise there would have been no need for Congress
to include in that subsection the introductory words "where such picketing
has been conducted."
1234
GENERAL SERVICE EMPLOYEES UNION
ployer shall be notified of Union Membership as
a condition of employment by appropriate lan-
guage upon the face of the application or upon a
notice sheet attached thereto. The form of such
Notice shall be as follows:
"NOTICE TO APPLICANT-Employment
with this firm is conditioned lipon all employees
becoming members of the Independent Guards
& Watchmen of America, pursuant to an Agree-
ment between this firm and the Union [sic] initi-
ation fees are automatically deducted from your
wages. Applications from individuals not willing
to become Union Members may not be accept-
ed by this firm."
In the cases of applicants for part-time em-
ployment, the Notice shall be as follows:
"NOTICE TO PART-TIME APPLICANT-
Employment with this firm is conditioned upon
all employees being or becoming members of
the Independent Guards & Watchmen of Amer-
ica. Under the terms of the Agreement between
this firm and the Union, part-time employees
are required to secure a work permit from the
Union, good for one year, and to pay Union
Membership dues of one-half the regular
monthly Union dues each month. These
amounts will be automatically deducted from
your wages. Applications from individuals who
do not secure a work permit may not be accept-
ed by the firm."
This article is obviously "one which by its express
terms clearly and unequivocally goes beyond the lim-
ited form of union-security permitted by Section
8(a)(3) of the Act," and therefore precludes
Rainey's collective-bargaining agreement with the
Independent from serving as a bar to an election.8
Accordingly, since I find that a question concerning
representation could have been raised when Respon-
dent threatened to picket and picketed, I find no ba-
sis for concluding that Respondent violated Section
8(b)(7)(A) of the Act. I therefore dissent from my
colleagues' failure to dismiss the complaint in its en-
tirety.
Paragon Products Corporation, supra at 6W66 see also Peabodi (,Coa (',,
panry, 197 NLRB 1231 (1972).
Having so found. I find it unnecessar% to consider whether oither 'r.,,l-
sions cited likewise render the contract incapable of acting as an election
bar.
DECISION
STATEMENT OF THE CASE
HUrroN S BRANDrON Administrative Law Judge: This
case was heard at Chicago, Illinois, on April 17 and 18,
1978. The charge was filed by Mack Leonard d/b/a
Rainey's Security Agency, herein called Rainey's, on De-
cember 15, 1977, and the complaint was issued on Decem-
ber 30 (amended January 19, 1978), alleging that General
Service Employees Union Local No. 73, affiliated with Ser-
vice Employees International Union, AFL-CIO, herein
called Respondent, violated Section 8(b)(7XA) and (C) of
the National Labor Relations Act, as amended, herein
called the Act, by certain threats to picket Rainey's at vari-
ous times and by picketing Rainey's in November. The
primary issues pres :nted are whether the conduct of the
Respondent with regard to its communications with
Rainey's and its picketing of Rainey's was motivated by
recognitional or organizational objectives proscribed by
Section 8(b)(7) of the Act and whether, assuming the exis-
tence of such objectives, the Respondent's conduct vio-
lated the Act as alleged.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respon-
dent, I make the following:
FINDINGS OF FA('I
I JURISDICTION
Mack Leonard is an individual proprietor doing business
under the trade name and style of Rainey's Security Agen-
cy, with an office and principal place of business in Chica-
go, Illinois, where Rainey's is engaged in the business of
providing security services. During the past calendar or fis-
cal year, Rainey's, in the course and conduct of its busi-
ness, performed services valued in excess of $50,000 for
users who themselves meet the Board's jurisdictional stan-
dards, except solely the indirect outflow or indirect inflow
standard. The complaint alleges, the Respondent admits,
and I find that Rainey's is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) and Sec-
tion 8(b) of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find that
Respondent, General Service Employees Union Local No.
73, affiliated with Service Employees International Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act,
The complaint further alleges. and Respondent admits,
that the Independent Guards & Watchmen of America
Union, hereinafter called the Independent, is a labor orga-
nization within the meaning of Section 2(5) of the Act. I so
find.
All dates are in 1977 unless ohemrise sale(d
1235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
i. Background
Since 1974, Rainey's has recognized and bargained with
the Independent as the representative of Rainey's 74 secur-
ity and investigative personnel. The contract between
Rainey's and that Union effective at times material herein
was executed on January I and ran to midnight, December
31. The contract contained a union-security provision re-
quiring membership in the Union as a condition of em-
ployment "within 60 days" of the signing of the contract or
"within 45 days of their first day of work" in the case of
new employees.
The Respondent stipulated at the hearing that it admits
into membership employees other than guards. The Re-
spondent further admitted at the hearing that the Respon-
dent had not been certified as a collective-bargaining rep-
resentative of Rainey's employees. However, Respondent
denied that Rainey's security personnel were "guards"
within the meaning of Section 9(b) of the Act and argued
that the term "guards" applied only to an employer's own
plant protection employees. The General Counsel submit-
ted uncontradicted evidence that Rainey's employees were
uniformed, armed, and licensed as security guards. More-
over, they had completed a state-required 30-hour training
course for security guards. Rainey's employees, in the per-
formance of their work, are responsible for the protection
of the property of the person or concern to whom Rainey's
contracts security services. The Board has found such per-
sons to be guards. American District Telegraph Company of
the Cleveland Company, 160 NLRB 1130, 1137 (1966); Gen-
eral Service Employees Union Local No. 73, affiliated ,with
Service Employees Employees International Union A FL-CIO
(Andy Frain, Inc.), 230 NLRB 351 (1977). I therefore find
that Rainey's employees are guards within the meaning of
Section 9(b) of the Act. Accordingly, I further find that
inasmuch as Respondent concedes that it admits to mem-
bership both guards and nonguards it could not at any
relevant time be certified as the collective-bargaining rep-
resentative of Rainey's employees, since such certification
is prohibited under Section 9(b)(3) of the Act.2
The Respondent admitted by answer to the complaint
that at all times material it utilized its president, Irving
Kurasch, its business manager, Harry S. Kurshenbaum, its
counsel, David Loewenberg, and its representatives, Book-
er LaGrone, Charles P. Bonesz, and Richard Wesley, as its
agents. There appears to be no dispute that Respondent
was responsible for the Londuct of these individuals to the
extent such conduct relates to the allegations of the viola-
tions of the Act listed in the complaint.
2 Sec. 9(b)(3) provides that "no labor organization shall be certified as the
representative of employees in a bargaining unit of guards if such orgamliza-
tion admits to membership, or is affiliated directly or indirectly with an
organization which admits to membership. employees other than guards"
2. The contacts between Rainey's and Respondent
occurring more than 6 months prior to the filing of the
charge herein
In an effort to establish that Respondent's conduct to-
ward Rainey's involved herein had a recognitional or orga-
nizational object, the General Counsel presented testimony
through Mack Leonard, proprietor of Rainey's, that Leo-
nard had a number of contacts with Respondent's repre-
sentative, Booker LaGrone. The first contact between La-
Grone and Leonard, according to Leonard, was in May or
June 1975. On that occasion LaGrone went to Leonard's
office, identified himself as a representative of Respondent,
and said that since he "happened" to be in the neighbor-
hood, he thought he would stop in and talk to Leonard.
Leonard testified LaGrone then said that he wanted to talk
to Leonard about "putting my guard agency into Local
73." Leonard declined, saying he was already in a union.
LaGrone responded that if he could get Rainey's into Lo-
cal 73 he could help Leonard. Leonard again declined, but
LaGrone gave Leonard his business card before leaving
and told Leonard if he changed his mind he could always
get in touch with LaGrone.
LaGrone, presented as a witness for Respondent, admit-
ted his meeting with Leonard in mid-1975 but claimed it
was a result of complaints he had received that Rainey's
was not meeting area standards.3 LaGrone testified that he
told Leonard that his visit was to see that "he met area
standards" and that Leonard responded that he could not
afford area standards because he was a "minority agent" 4
and that he could not get the type of money that the other
company (a predecessor contracting guard company) was
getting from the client. LaGrone added that Leonard also
said he could not afford to join Local 73. To this LaGrone
replied that that was not the nature of his business, that he
was concerned that Rainey's meet area standards. Finally,
LaGrone denied the specific remarks attributed to him by
Leonard in the 1975 conversation.
Leonard also testified to another conversation with La-
Grone in May or June of 1976. Leonard related that La-
Grone on this occasion phoned him and asked him if he
had "changed his mind" about putting the guards in Local
73 and that Leonard told him no. Then LaGrone said that
they would have to get together and that LaGrone would
come by and talk to him. Subsequently, in July 1976, ac-
cording to Leonard, LaGrone came to Leonard's office
and said he happened to be in the neighborhood and he
wanted to congratulate Leonard on getting a contract with
Avon Products. On this occasion LaGrone asked Leonard
if he was ready to "put" Rainey's into Local 73. Leonard
said he declined and LaGrone requested Leonard to "just
give me a piece of the contract." Leonard again declined,
saying he could not pay the rate that Local 73 was asking.
LaGrone responded that Leonard needn't worry about
that, that they would work out something and he probably
would not have to start paying the rate of Local 73 until
1 The parties herein are in agreement that Rainey's has paid its employees
less than the rates clled for in the Respondent's contracts with other area
employers.
Tlhis waas an apparently a reference to the fact Rainey's employees were
"minorities.' in thi s case blacks.
1236
GENERAL SERVICE EMPLOYEES UNION
the next year. In expanding on his reason for not putting
his men in Local 73, Leonard told LaGrone that there was
another agency that had their men in Local 73 believing
that they had insurance coverage and that when one of the
men died Local 73 did not have the insurance and the
owner of the agency had to go into his pocket and pay part
of the funeral expenses. LaGrone allegedly replied that he
did not know about that.
LaGrone could not recall any phone conversations or
visits to Leonard's office in the summer of 1976 and thus
did not specifically deny he had such conversations. How-
ever, he did specifically deny at any time making the state-
ment attributed to him by Leonard in the alleged 1976
conversations.
3. The communications between Rainey's and
Respondent occurring within the 6-month period prior to
the filing of the charge
By letter dated July 21, addressed to Leonard and signed
for Irving Kurasch, president of Respondent, by its repre-
sentative Charles Bonesz, Respondent advised Leonard
that Respondent had reason to believe that Rainey's did
not comply with area standards regarding the terms and
conditions of employment of employees performing duties
as guards. The letter requested information as to the wages
and other economic terms and conditions of employment,
including fringe benefits, of Rainey's guards and warned
that it was essential that Leonard respond promptly so that
"if you are, in fact, complying with area standards it shall
not be necessary for us to engage in lawful area standards
picketing." The letter added that unless there was a re-
sponse by close of business on August I "we shall have no
alternative but to conclude that you are not, in fact, com-
plying with area standards, and therefore, to act accord-
ingly." The record herein does not show a specific response
by Leonard to this letter.
Leonard testified, however, that LaGrone telephoned
him in August and asked him if he had changed his mind
about putting his agency into Local 73. Leonard responded
negatively, and LaGrone, according to Leonard's testi-
mony, then said that it was out of his hands and that Local
73 had decided that they were going to picket him. La-
Grone added, however, that he thought he could come and
talk to Leonard first.
LaGrone admitted a phone call to Leonard in mid-1977.
He denied the specific comments attributed to him by Leo-
nard as noted above. In his version of the phone call,
which was prompted by Rainey's "taking away" a security
contract between the Illinois Public Aid Office and another
"minority" security agency whose employees were repre-
sented by the Respondent, LaGrone said he wanted to see
if there was any way possible "we" could bring Rainey's up
to area standards. According to LaGrone, the matter had
come to his attention at that time through a complaint
from a former employee of Great Lakes Security, the con-
tractor replaced by Rainey's, who had been employed by
Rainey's and had received a cut in pay. The employee re-
ported to LaGrone that in addition to the reduced rate of
pay he received no vacations, holiday pay, or health and
welfare benefits, things provided for under Respondent's
contracts. LaGrone testified that when he phoned Leonard
he again asked Leonard about "meeting area standards"
and that Leonard replied he could not afford to meet "area
standards" because Rainey's was "a minority agency." La-
Grone stated that it was strange that he could not meet it,
that there was a minority agent before Rainey's came in
that was meeting area standards. Leonard said he could
not afford Local 73 rates and added that he knew what
LaGrone was looking for, that LaGrone was looking for a
contract. LaGrone responded negatively and said that the
contract was not the issue, that all "we" were looking for is
"area standards."
Respondent, by letter dated September 12, signed by
Business Manager Harry S. Kurshenbaum and addressed
to the Public Aid Department of Illinois, notified the De-
partment that it had "an area standards" dispute with
Rainey's, which provided guard services for the Depart-
ment. The letter stated that Respondent intended to picket
Rainey's "at such times and places when the guards of
Rainey's Company are located on the premises of your
company." The letter disavowed any dispute with any
other employer and related that its picketing would be
"conducted in accordance with applicable laws" and urged
"company officials" to contact Charles Bonesz, Richard
Wesley, or Kurshenbaum "if any interference with produc-
tion" occurred after area standards picketing begain
against Rainey's. There was, however, no picketing until
November, as more fully set forth below.
In the meantime there were other contacts between La-
Grone and Leonard. Thus, Leonard testified that on Octo-
ber I 11 he received another phone call from LaGrone, who
again asked him if he had changed his mind about putting
his agency into Local 73. Leonard said he had not, and
LaGrone said that it was out of his hands and if Leonard
did not put them into Local 73 they were going to picket
him. Leonard again protested that he was a minority agen-
cy and could not meet the wages Respondent asked for.
LaGrone told Leonard not to worry about that, that they
could always work something out. Leonard also testified
that on this occasion he told LaGrone that Local 73 was
not a "certified agency to represent private security
guards" and that "the day that you get certified, I would be
ready to consider putting my agency into Local 73." Leo-
nard added that he told LaGrone that "you can't go into
any bargaining units with me."
LaGrone did not specifically deny an October telephone
conversation with Leonard. However, he denied specifical-
ly making the statements attributed to him by Leonard at
any time. According to LaGrone, his next contact with
Leonard was at a Standard service station at 71st and Ex-
change Streets in Chicago. Leonard agrees that such a
meeting by accident took place at the location and set the
date as October 31.
Leonard stated in his testimony that at the October
meeting LaGrone asked him how he was doing and Leo-
nard replied that he was doing "okay" if "you all"just stop
"bothering with me." LaGrone said that it was out of his
hands, that there was nothing he could do about it. Leo-
nard asked why Respondent did not "go after" some of the
minority agencies and noted that there were a lot of minor-
ity agencies that were "in no union at all." LaGrone said
1237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that that they were and then referred to one employer,
called "Arrow." LaGrone said there had been two partners
in Arrow and one partner had signed with Local 73 to
represent them while the other partner refused to sign and
since then Local 73 had almost put them out of business.
LaGrone's version placed the meeting at the service sta-
tion in September or November, "somewhere along in
that." LaGrone confirmed that Leonard complained about
Respondent "bothering him" and said that Leonard also
said that "there was other companies we should get after
and we keep messing with him." Leonard added, according
to LaGrone, "that he had something for Local 73. that we
have got away with a lot, but to that extent-it was some-
thing like that." LaGrone denied the other comments at-
tributed to him by Leonard, including specifically the ref-
erence to "Arrow."
By letter dated October 17 from Respondent's President
Kurasch, signed by LaGrone and addressed to Paul Do-
herty of Illinois Bell, another employer of Rainey's ser-
vices, the Respondent inquired as to the rates of pay of
"your company." The letter referenced Rainey's Security
as the subject matter, but its form and content was identi-
cal to the letter sent to Leonard dated July 21 and already
noted above. This letter set a deadline of November I for
the receipt of information showing compliance with area
standards in order to avoid "area standards picketing of
Illinois Bell." This letter apparently provoked an inquiry
from Illinois Bell to Respondent, for the parties herein sti-
pulated into evidence the Respondent's response to that
inquiry, a letter dated November I from Kurasch by Re-
spondent's counsel, David Loewenberg. This letter ex-
plained that the October 17 letter was just a copy of a letter
to Rainey's and stated: "So there can be no misunder-
standing about our intent or objective, Local 73's only dis-
pute is with Rainey's Security and our threat to picket is
directed against Rainey's Security and not against Illinois
Bell." The record does not reflect, however, that Rainey's
ever received the October 17 letter.
4. The picketing
There is a dispute between the parties as to when picket-
ing of Rainey's by Respondent actually took place. The
complaint alleges that it occurred on November 15 and 16.
In support of this allegation, Rainey's guard Diane Bass
testified that on November 15 she observed picketing at
her work location with the Public Aid Department on
South Halsted Street, where Rainey's was under contract
to provide security services. She could not recall if the pick-
eting at that location also occurred on November 16.
James Griffin, a guard captain for Rainey's, testified that
he observed picketing by Respondent at the Halsted Street
location on November 16. Griffin took a picture of the
picket at that time, and the picture was dated November 16
by Bradley, president of the Independent, a few minutes
after it was taken. Griffin also testified that he observed
picketing on November 16 at the Public Aid Office on
Pershing Road. LaGrone testified that to the best of his
recollection the picketing took place only on November 15.
The Respondent acknowledged that the picket was paid by
Respondent, and the parties stipulated that the picket sign
contained the following language:
Rainey's security guards employed by the above Com-
pany are not being paid the prevailing area standard.
Our only dispute is with the above company. We have
no dispute with any other employer at this location.
General Services Union Local No. 73, AFL-CIO-
SEIU.
There was no woik disruption or delivery stoppages as a
result of the picketing.
The parties stipulated that the man carrying the picket
sign appearing in the pictures taken by Griffin and dated
November 16 was Wilbur Baker. Baker was not called as a
witness at the hearing. In view of Griffin's clear and unim-
peached testimony regarding the picketing on November
16, and in the absence of any testimony from Baker, I
credit Griffin over LaGrone's "best recollection" and find
that the picketing took place on November 16 as well as
November 15.
5. The post-picketing evidence of Respondent's
recognitional or organizational object
The General Counsel also relies on certain post-picket-
ing statements attributed to LaGrone as establishing Re-
spondent's recognitional objectives. In this regard Diane
Bass testified that on December 14, during some handbill-
ing of Rainey's at the Public Aid Department on Halsted
Street, LaGrone approached her in the morning and told
her that he knew Rainey's had "trained the hell out or' the
employees not to talk to him but nevertheless, still accord-
ing to Bass, "was saying" that he was trying to find out
how much Rainey was paying the employees. Bass failed to
respond to him and LaGrone then said that if they "come
with his union" Rainey's would pay them $7 an hour. Bass
merely responded, "Whatever is fair." LaGrone denied
that he made the comments attributed to him by Bass.
Moreover, he denied that he was present on the morning of
December 14 at Bass's location. In support of the latter
contention, he is corroborated by Respondent's Counsel
David Loewenberg, who testified that LaGrone was with
him at another location until the afternoon on December
14.
Bass also testified that a short time after her encounter
with LaGrone, on the same date and at the same location,
Respondent's Representative Charles Bonesz talked to her
and inquired of her what hospital she went to when she got
sick. Bass did not respond, and Bonesz went on stating that
he knew that when employees got sick Rainey's did not pay
them for sick days and did not pay them holiday pay but
that if they were to join the Respondent's Union they'd get
paid for sick pay, holiday pay, plus $4 an hour.5 Bass testi-
fied she did not respond to this.
Contentions of the Parties
Based on the testimony of Mack Leonard and Diane
Bass, the General Counsel contends that the Respondent's
'The rate of pay for Rainey's employees at that time was less than $3 per
hour.
1238
GENERAL SERVICE EMPLOYEES UNION
threats to picket and the picketing itself had as at least one
objective the forcing or requiring of Rainey's to recognize
and bargain with Respondent. Since Rainey's already rec-
ognized the Independent and had a contract with that or-
ganization, the General Counsel argues that Respondent's
threats and picketing thus violated Section 8(b)(7)(A) of
the Act.6 Moreover, and even assuming that Rainey's con-
tract with that union was not a bar to a petition under
Section 9(c) of the Act, the General Counsel argues that
Respondent could never be certified as representative of
Rainey's employees and no question concerning represen-
tation could be raised because Respondent admits non-
guards into its membership. In support of this contention,
the General Counsel cites General Service Employees Union
Local No. 73 (A-I Security Service Co.), 224 NLRB 434
(1976), enfd. 578 F.2d 361 (D.C. Cir. 1978); Drivers, Chauf-
feurs, Warehousemen and Helpers, Local No. 71 (Wells Far-
go Armored Service Corporation), 221 NLRB 1240 (1975),
enfd. 553 F.2d 1368 (D.C. Cir. 1977); International Brother-
hood of Teamsters, Local 344 (Purolator Security, Inc.), 228
NLRB 1379 (1977), enfd. 561 F.2d 31, (7th Cir. 1977).
With respect to the 8(bX7)(C) 7 allegation, the General
Counsel argues that since the Union could not be certified,
Section 9(bX3) operates to cut off the normal 30-day grace
period in Section 8(b)(7XC) so that the Respondent could
not lawfully picket at all for a recognitional object, citing
Wells Fargo Armored Service Corporation, supra, and Puro-
lator Security, Inc., supra. Thus, and since Respondent
could not even threaten to picket under such circumstances
(A-i Security Service Co., supra), it follows, according to
the General Counsel's argument, that Respondent's threats
and picketing violated Section 8(b)(7XC).
The Respondent, based on its version of the facts of the
case as set forth primarily in LaGrone's testimony, con-
tends it had no organizational or recognitional objectives
6 Sec. 8(b)(7XA) stated that it shall be an unfair labor practice for a labor
organization
to picket or cause to be picketed, or threaten to picket or cause to be
picketed, any employer where an object thereof is forcing or requiring
an employer to recognize or bargain with a labor organization as the
representative of his employees, or forcing or requinng the employees
of an employer to accept or select such labor organization as their
collective bargaining representative, unless such labor organization is
currently certified as the representative of such employees:
(A) where the employer has lawfully 'ecognized in accordance
with this Act any other labor organization and a question concerning
representation may not appropriately be raised under section 9(c) of
this Act.
7Sec. 8(b)(7)C) prohibits recognitional or organizational picketing
where such picketing has been conducted without a petition under
section 9(c) being filed within a reasonable period of time not to exceed
thirty days from the commencement of such picketing: Provided. That
when such a petition has been filed the Board shall forthwith, without
regard to the provisions of section 9(cXl) or the absence of a showing
of a substantial interest on the part of the labor organization, direct an
election in such unit as the Board finds to be appropnate and shall
certify the results thereof: Provided further, That nothing in this sub-
paragraph (C) shall be construed to prohibit any picketing or other
publicity for the purpose of truthfully advising the public (including
consumers) that an employer does not employ members of, or have a
contract with. a labor organization, unless an effect of such picketing is
to induce any individual employed by any other person in the course of
his employment, not to pick up, deliver or transport any goods or not to
perform any services.
in its conduct with respect to Rainey's. In connection with
the 8(b)(7XA) allegation, the Respondent contends that
Rainey's recognition of the Independent was unlawful and
that its contract with the Independent was also unlawful,
inasmuch as it contained provisions which were unlawful
on their face and tantamount to an unlawful union-securi-
ty agreement.8 Such contract, the Respondent argues,
would not constitute a bar to an election or preclude the
raising of a question concerning representation; so the
General Counsel, according to Respondent, did not estab-
lish the essential elements with respect to an 8(b)(7)(A) vio-
lation.
The Respondent maintains that its picketing was purely
"area standards" picketing and that as such it fell within
the second proviso of Section 8(bX7)(C), even if the picket-
ing did have some recognitional or organizational objec-
tives. In support of this proposition, the Respondent cited
Construction Laborers International Union of North Amer-
ica, AFL-CIO, Laborers Local 1140 (Lanco Corporation),
227 NLRB 1247 (1977). Moreover, the Respondent argues
that its picketing was not unlawful because it had no effect
on deliveries and caused no work stoppage. Under these
circumstances, the Respondent concludes that its actions
8 The specific provisions of the contract relied on by Respondent in this
regard are as follows:
Article V
Notice of Union Membership As A Condition of Employment:
All prospective employees who shall complete an application for or
seek employment with Employer shall be notified of Union Member-
ship as a condition of employment by appropnate language upon the
face of the application or upon a notice sheet attached thereto. The
form of such Notice shall be as follows:
NomCr To APn1caNT-- Employment with this firm is conditioned upon
all employees becoming members of the Independent Guards &
Watchmen of America, pursuant to an Agreement between this firm
and the Union initiation fees are automatically deducted from your
wages Applications from individuals not willing to become Union
Members may not be accepted by this firm.
In the cases of applicants for part-time employment, the Notice shall be
as follows:
NOTrCE To P^T iEr APIlcA^--Employment with this firm is condi-
tioned upon all employees' being or becoming members of the Inde-
pendent Guards & Watchmen of Amenca. Under the terms of the
Agreement between this firm and the Union. part-time employees are
required to secure a work permit from the Union, good for one year.
and to pay Union Membership dues of one-half the regular monthly
Union dues each month These amounts will be automatically deduct-
ed from your wages Applications from individuals who do not secure a
work permit may not be accepted by the firm.
Part-time employees are those who work less than 104 hours dunng
each calendar quarter.
Article VII
Part-Time Employees
Section 2. All part-time employees shall be required to obtain a work
permit from the Union pnor to their beginning their employment and
shall present said work permit to the Employer pnor to their being
placed on the job. The work permit issued by the Union shall be effec-
tive for one (I ) ear from the date of issue and may be recognized by all
Employers who shall be operating under an agreement with the Union.
Article XVII
Promotions
Section 2. Employees having a minimum seniority of twelve (12)
months shall be eligible to take the Sergeants Exarmnation next given
after achieving said senionty. Provided, however. that the eligible em-
ployee be in current good standing with the Union and not have been
subject to disciplinary action by either the Union or Employer for at
least twelve (12) months prior to the date of examination.
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were clearly within the second proviso of Section
8(b)X7XC).
Conclusions
The determination as to Respondent's objectives in its
"threats" to picket as well as its picketing rests upon the
credibility resolution between Respondent's witnesses La-
Grone, Wesley, and Bonesz on the one hand and the Gen-
eral Counsel's witnesses Leonard and Bass on the other
hand.
In considering the testimony of LaGrone and Leonard, I
have carefully weighed their demeanor while testifying, the
substance of their testimony, and the arguments in the re-
spective briefs filed herein relative to the credibility of
each. There are certain inconsistencies and implausibilities
in the versions of each. For example, Leonard, although
denying that at the times he talked to LaGrone he was
aware that Rainey's paid rates lower than Local 73, admit-
tedly told LaGrone that he could not "afford" to pay Local
73 rates. Surely a conclusion as to inability to "afford"
Local 73 rates must be predicated upon knowledge that the
rate then being paid by Rainey's was less than those of
Local 73. Further, Leonard testified that he told LaGrone
he would deal with Local 73 only if it was certified. This
concern with certification appears strange in view of
Leonard's failure on cross-examination to even recall
whether the Independent had ever been certified to repre-
sent Rainey's employees.
LaGrone'3 testimony also contained inconsistencies. He
initially testified his first contact with Leonard was in mid-
1975. Yet on cross-examination he admitted, in effect, that
he had known Leonard prior to 1975. Moreover, while he
initially testified he had only spoken to Leonard on three
or four occasions during the times relevant herein, he indi-
cated in a deposition submitted in connection with a 10(I)
proceeding growing out of this case that he had had many
other contacts with Leonard on a frequency basis of about
twice a month. LaGrone was unnecessarily secretive about
his acquaintance with Leonard and reluctantly revealed
that he and Leonard were "lodge brothers" only after a
motion by Charging Party's Counsel to strike his testimony
in the absence of an answer by LaGrone as to what kind of
"brothers" he and Leonard were.
LaGrone's deposition, received as General Counsel's Ex-
hibit 14 herein, reflects other inconsistencies. In the deposi-
tion LaGrone referred to a phone conversation with Leo-
nard in late July. The deposition indicated that in the
conversation with LaGrone in July a "letter" was dis-
cussed 9 and an inquiry was made by Leonard as to who
David Loewenberg was. In his testimony at the hearing
herein, LaGrone made no reference to the discussion of
that letter, and he placed the inquiry about Loewenberg as
occurring at a later time, the meeting with Leonard at the
service station in October.'° LaGrone's deposition also re-
9The "letter" was apparently a reference to the Respondent's July 21
letter to Rainey's.
10 There appears nowhere in the record any explanation for an inquicy by
Leonard as to who Loewenberg was. None of the letters sent to Leonard
had been signed by Loewenberg and the only letter in evidence signed by
vealed that in his discussion with Leonard at the service
station he mentioned picketing. His testimony herein did
not refer to his mentioning picketing. His testimony herein
did not refer to his mentioning picketing at that meeting.
LaGrone's deposition even reflected confusion as to the
time of the picketing of Rainey's, for in the deposition he
stated the picketing occurred in August, while the evidence
presented at the hearing clearly reflected that it took place
in November. Finally, LaGrone testified in his deposition
that he never in fazt observed the Respondent's picketing
of Rainey's, but his testimony at the hearing was to the
contrary.
Considering all of the foregoing, and on balance, I find
Leonard to be the more reliable witness. I therefore credit
his testimony regarding the remarks he attributed to La-
Grone. Accordingly, I find that LaGrone did discuss with
Leonard Rainey's recognition of Respondent and the exe-
cution of a collective-bargaining agreement between Re-
spondent and Rainey's. It follows, and I find, that Respon-
dent did have a recognition objective when it sent its letters
to Rainey's on July 21 and to the Public Aid Department
on September 12, as well as the letter of October 17 to
Illinois Bell, as explained by Loewenberg's letter of No-
vember 1, all threatening to engage in picketing. Such ob-
jective remained when Respondent actually engaged in the
picketing of Rainey's on November 15 and 16.
This conclusion is buttressed by the testimony of Diane
Bass regarding her December 14 encounter with LaGrone.
I found Bass to be a sincere and candid witness and credit
her regarding the statements attributed to LaGrone. The
statement of LaGrone to the effect that Rainey had
"trained the hell" out of the employees not to talk to Re-
spondent's representatives has a ring of authenticity to it
and is not likely to have been fabricated by Bass. The al-
leged offer of LaGrone to Bass of $7 per hour if she joined
Respondent, an amount far in excess of Respondent's
rates, at first glance suggests either express falsification by
Bass or a misunderstanding of what she had heard. If one
considers, however, LaGrone's acknowledgment of Bass'
reluctance to talk to him, an offer of $7 per hour is clearly
understandable as an effort to evoke a response on her
part.
I do not find Bass' testimony adversely affected by the
testimony of LaGrone, Bonesz, Wesley, and Loewenberg
regarding the time that LaGrone arrived at Bass' location
on December 14. Respondent's witnesses testified that La-
Grone arrived around 12:20 or 12:30 p.m., while Bass testi-
fied she talked to LaGrone sometime in the morning of
December 14. However, Bass freely and repeatedly admit-
ted in her testimony that she was not sure about the time
she talked to LaGrone. Thus, even assuming LaGrone did
not arrive until afternoon, Bass was not so clearly errone-
ous about time as to make her testimony otherwise unbe-
lievable.
I further accept Bass' testimony regarding the statements
she attributed to Bonesz on December 14 because I am
persuaded that Bass was a reliable witness. In addition, the
testimony of Bonesz and Wesley that Bonesz' comments to
Loewenberg was dated November I, after the time by the version of either
Leonard or LaGrone that they had met at the gas station.
1240
GENERAL SERVICE EMPLOYEES UNION
Bass were attempts to show Bradley that Rainey's rates
were below standard is unconvincing. Bradley, in his posi-
tion as president of the Independent, which represents
Rainey's employees, would already have been familiar with
Rainey's pay rates and benefits. There would have been no
need to "prove" to Bradley what Rainey's rates were.
While the statements attributed to LaGrone and Bonesz
by Bass occurred a month after the picketing of Rainey's,
they serve to belie Respondent's claim that "area stan-
dards" was its sole concern herein. Under these circum-
stances, Respondent's disclaimers of any recognitional or
organizational objectives with respect to Rainey's must be
considered as nothing more than "ritualistic," a term previ-
ously utilized by the D.C. circuit in describing similar dis-
claimers by the Respondent in an earlier case involving a
different employer. A-I Security Service Co., supra. I so
conclude.
Having found that Respondent had the objective pro-
scribed by Section 8(bX7) of the Act when it made its
threats to picket Rainey's and when it subsequently en-
gaged in picketing of Rainey's, it becomes necessary to
decide whether Respondent violated the subsections of the
Act alleged in the complaint. With respect to the 8(b)(7)(C)
allegation, it is true that Respondent's picket signs and its
threats to picket were couched in terms of "area standards"
protest. Picketing for the sole purpose of requiring an em-
ployer to comply with "area" employees' wages and bene-
fits is not unlawful under Section 8(bX7XC). Centralia
Building and Construction Trades Council [Pacific Sign &
Steel Building Co.] v. N.LRB., 363 F.2d 699, 701 (D.C.
Cir. 1966). But I have found herein that Respondent's ac-
tions were not solely to require compliance with "area stan-
dards." Respondent, in fact, entertained objectives pro-
scribed by Section 8(bX7)(C). The second proviso to
Section 8(bX7XC), allowing for picketing or other publicity
to advise the public that an employer does not employ
members of or have a contract with a labor organization is
not available to Respondent as a defense in this case. This
is because Respondent's picketing was area standards,
which the Board has held not to be informational picketing
protected by the second proviso. Local 275, Laborers Inter-
national Union of North America, AFL-CIO, etc. (S. B.
Apartments, Inc.), 209 NLRB 279 (1974). It has also been
held by the Board in a case involving this Respondent that
it is unlawful under Section 8(b)(7XC) for a union which
cannot be certified under Section 9(b)(3) of the Act to
threaten to picket an employer for recognitional purposes.
A-I Security Service Co., supra. It is also unlawful to picket
under such circumstances. Purolator Security, Inc., supra.
Accordingly, I find that Respondent, by its threats to pick-
et and its picketing, violated Section 8(bX7)(C) of the Act,
as alleged in the complaint.
In consideration of the alleged 8(bX7XA) violations, I
find it unnecessary to decide whether Rainey's contract
with the Independent was a bar to a petition under Section
9(c) of the Act. The legality under the Act of Rainey's
initial recognition of the Independent could not be litigated
in this proceeding." I find it unnecessary to decide Re-
11 While Respondent sought to introduce evidence at the hearing regard-
ing the legality of Rainey's initial recognition of the Independent. such
spondent's argument that Rainey's contract with the Inde-
pendent would not have precluded the raising of a question
concerning representation. I find that issue irrelevant un-
der the circumstances of this case, since the essential fact
remains that the Respondent, by virtue of Section 9(bX3),
was precluded from raising a question concerning repre-
sentation. 2 The basis for the inability to raise a question
concerning representation is less significant than the conse-
quence that the election process is not available to resolve
recognition issues raised by Respondent's actions. That a
question concerning representation might have been raised
and the election process invoked by some other party is no
defense to Respondent here, for Respondent could not
have received a certification from such process. In any
event, there is no evidence in this case that any other par-
ties sought to raise a question concerning representation at
the time of the Respondent threats or picketing.
There is no case precedent or legislative history cited by
the Respondent which would support its suggestion that
because it could not be certified it was therefore licensed to
engage in picketing prohibited under Section 8(bX7X)(A).
Indeed, as the District of Columbia circuit noted in A-I
Security Service Co., supra, with respect to a similar argu-
ment raised by Respondent under Section 8(bX7XC):
Throughout paragraph 8(b)(7), Congress was ex-
plicitly concerned with the problems of recognitional
picketing; and it is far-fetched to argue that it im-
plicitly intended to establish a special procedure to
allow non-recognizable unions to engage in such pick-
eting. Prima facie it would seem logical to assume that
such unions would be precluded from such picketing.
[578 F.2d at 371.]
It appears reasonable to conclude, and I so conclude,
that if Section 8(b)(7)(C) grants no exemption to Respon-
dent's threats or picketing for a proscribed object because
it is not certifiable, Section 8(b)(7)A) likewise intended no
such exemption. Accordingly, I find that Respondent, by
picketing Rainey's with an object proscribed under Section
8(bX7) of the Act at a time when Rainey's had lawfully
recognized the Independent and when Respondent could
not raise a question concerning representation, violated
Section 8(b)(7XA) of the Act.
CONCLUSIONS OF LAW
1. Mack Leonard d/b/a Rainey's Security Agency is an
evidence was rejected, inasmuch as the Independent was initially recognized
a few years earlier. Such recognition was not subject to an attack because of
Sec. 10(b) of the Act See Local Lodge No. 1424, International Association of
Machinistrs AFL-CIO /Brnan Manufactruring Col. 362 U.S. 411 (1960).
12 Respondent in its brief requested that I take official notice of charges
filed with the Regional Director for Region 13 on Apnl 14. 1978. against
Rainey's. er al. (Case 13-CA 17507). and the Independent (Case 13-CB-
7836). as well as a settlement agreement involving those charges entered into
between the two parties and approved by the Regional Director on May 16,
1978. subsequent to the close of the hearing in this case. The Respondent's
request for official notice of these documents is based upon its contention
that they substaitiate the conclusion that the contractual provisions cited
hb it as being unlawful would not have precluded the raising of a question
concerning representation. In view of my conclusion that the contract bar
issue is irrelevant. I find it unnecessary to take notice of the documents as
requested.
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. General Service Employees Union Local No. 73, affil-
iated with Service Employees International Union, AFL-
CIO, and the Independent Guards & Watchmen of Amer-
ica Union are both labor organizations within the meaning
of Section 2(5) of the Act.
3. By Threatening to picket and by picketing Mack Leo-
nard d/b/a Rainey's Security Agency with an object of
forcing or requiring Rainey's to recognize and bargain with
Respondent as collective-bargaining representative of
Rainey's guard employees when Rainey's had lawfully rec-
ognized the Independent Guards and Watchmen of Amer-
ica Union as representative of such employees and a ques-
tion concerning representation could not appropriately be
raised under Section 9(c) of the Act because Respondent
admitted into membership employees other than guards
and could not be certified under Section 9(bX3) of the Act,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(bX7)A) of the Act.
4. By threatening to picket and by picketing Mack Leo-
nard d/b/a Rainey's Security Agency with an object of
forcing or requiring Rainey's to recognize and bargain with
the Respondent as collective-bargaining representative of
its guard employees when Respondent had not been certi-
fied as representative of such employees and could not be
so certified by virtue of provisions of Section 9(b)(3) of the
Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(7XC) of the Act.
5. The aforesaid unfair labor practices have a close, inti-
mate, and substantial effect on commerce between the sev-
eral States and are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
It is the General Counsel's position herein that only a
broad remedial order is appropriate under the circum-
stances of this case. In this regard, the General Counsel
argues that Respondent's "goal" in its past and present
conduct is to force guard agencies to recognize it as the
exclusive bargaining representative of their employees
without regard to the desires of the employees. In support
of his contention that Respondent has demonstrated a pro-
clivity to violate the Act, the General Counsel cites a num-
ber of cases involving Respondent's violations of various
sections of the Act. These cases included Board decisions
in General Service Employees Union Local No. 73, affiliated
with Service Employees International Union, AFL-CIO
(Andy Frain, Inc.), 230 NLRB 351 (1977); General Service
Employees Local Union No. 73, affiliated with Service Em-
ployees International Union, AFL-CIO (A-l Security Ser-
vice Co.), supra, and General Service Employees Union, Lo-
cal No. 73, affiliated with Service Employees International
Union, AFL-CIO (R. R. S., Inc., Security and Investigation
Service Division), JD-795-74, issued December 19, 1974
(unpublished). In the last-cited case, the Decision of the
Administrative Law Judge had been adopted by the Board
in the absence of exceptions by any party. In all three of
the cited cases, as here, Section 8(b)(7)(C) of the Act was
found to have been violated by the Respondent.' 3
The Respondent opposes a broad order on the basis that
no proclivity has been shown on the part of Respondent to
violate the Act. In this regard the Respondent relies upon
Brotherhood of Teamsters & A uto Truck Drivers, Local No.
70, Teamsters (H. A. Carney and David Thompson, Partners,
d/b/a C & T Trucking Co.), 191 NLRB 11 (1971), for the
proposition that the Administrative Law Judge's Decisions
adopted without exceptions provide no basis for a finding
of "proclivity" remedial order. Moreover, Respondent con-
tends that the Decision of the Board in Andy Frain, Inc.,
230 NLRB 351, resulted from a settlement agreement pro-
viding for the entry of a Board Order after Respondent
withdrew its answer and, as a settled case, could not be
considered to establish a "proclivity" to violate the Act.
Finally, Responden, notes that in A-1 Security Service Co.,
supra, the Board itself declined to enter a broad order
against Respondent.
A broad remedial order may be appropriate whenever
the facts of a particular case, or prior decisions involving
the same Respondent in the same or similar unlawful con-
duct, establish a proclivity to violate the Act. Brotherhood
of Teamsters & Auto Truck Drivers, Local No. 70, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America (Sea-Land of California, Inc.), 197
NLRB 125 (1972), enfd. 490 F.2d 87 (9th Cir. 1973).
I concur with the General Counsel that a broad remedial
order here is warranted. While the Board may have con-
cluded in the A-I Security Service Co., supra, that no pro-
clivity to violate the Act had been shown, the instant case,
involving a violation of the same section of the Act, adds to
the evidence considered by the Board in A-i Security Ser-
vice Co. and now clearly demonstrates, in my opinion, that
"proclivity" to violate the Act necessary for the entry of a
broad remedial order here.l4 Accordingly, having found
that Respondent violated Section 8(bX7)A) and (C) of the
Act as alleged, I shall recommend a broad remedial order
that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
The General Counsel contends that Respondent should
be required to publish any "notice" found appropriate
herein in a newspaper of general circulation in the Chicago
area. See United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry, Local 428, A FL
(Frank W. Hake et al. t/a Frank W. Hake), 112 NLRB
1097, 1102 (1955). Notwithstanding the proclivity to violate
"3The General Counsel also relies upon Decisions of the Board or its
Administrative Law Judges involving violations of other sections of the Act.
These cases include: General Service Employees Union, Local No. 73, affiliat-
ed with Service Employees International Union, A FL-CIO (Management Safe-
guards, Inc.), JD-431 77. issued July 25, 1977, and adopted by the Board in
the absence of exceptions on September 9, 1977 (unpublished), involving
violations of Sec. 8(bXIXA) and (2) of the Act; General Service Employees
Union Local No. 73, affiliated with Service Employees International Union,
AFL (C10 (Andy Frain, Inc.), JD 166-78, issued March 20. 1978, involving
violations of Sec. 8(b)(4Xi) and (iiXB), and General Service Employees Union
Local N'o. 7., affiliated with Service Employees International Union, AFL-
(CIO (Active Demmtive Agency), JD 368-78. issued May 31. 1978. involving
violations of Sec. 8(b)4XiiXB) and t7(C) of the Act.
t4 While the other Administrative Law Judge Decisions cited by the Gen-
eral Counsel and listed in fn. 13 would appear to buttress this conclusion. I
have not relied on them.
1242
GENERAL SERVICE EMPLOYEES UNION
the Act I have found herein, I am not convinced that effec-
tuation of the Act here requires such publication.'
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 16
The Respondent, General Service Employees Union Lo-
cal No. 73, affiliated with Service Employees International
Union, AFL-CIO, Chicago, Illinois, its officers, agents,
and representatives shall:
1. Cease and desist from:
(a) Threatening to picket, picketing, or causing to be
picketed Mack Leonard d/b/a Rainey's Security Agency,
or any other employer, where an object thereof is to force
or require Rainey's Security Agency, or any other em-
ployer, to recognize or bargain with Respondent as the rep-
resentative of their guard employees or forcing or requiring
the guard employees of Rainey's Security Agency, or any
other employer, to accept or select Respondent as their
collective-bargaining representative when Rainey's Securi-
ty Agency, or any such other employer, has lawfully recog-
nized another labor organization in accordance with the
Act and a question concerning representation can not ap-
propriately be raised under Section 9(c) of the Act.
(b) Threatening to picket, picketing, or causing to be
picketed Mack Leonard d/b/a Rainey's Security Agency,
or any other employer, where an object thereof is to force
or require Rainey's Security Agency, or any other em-
ployer, to recognize or bargain with Respondent as the rep-
resentative of their guard employees or forcing or requiring
the guard employees of Rainey's Security Agency, or any
other employer, to accept or select Respondent as their
collective-bargaining representative, when Respondent has
not been certified as representative of such employees and
cannot be certified by virtue of the provisions of Section
9(bX3) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and the policies of the Act:
(a) Post at its Chicago, Illinois, facilities copies of the
attached notice marked "Appendix." 17 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 13, after being duly signed by Respondent's represen-
tative, shall be posted by it immediately upon receipt
| See Teamsters, Chauffeurs, Helpers and Taxicab Drivers. Local Union
No. 327. Teamsters (Whale, Inc.). 178 NLRB 422 (1%969). But see General
Service Employees Union Local No. 73 (And Frain, Inc.). JD- 166-78. issued
March 20. 1978
'6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order. and all objections thereto shall be
deemed waived for all purposes.
I7 n the event that this Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Furnish signed copies of the notice to the Regional
Director for Region 13 for posting by Mack Leonard
d/b/a Rainey's Security Agency, if said employer is will-
ing, at all locations where notices to its employees are cus-
tomarily posted.
(c) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to picket, picket, or cause to
be picketed Mack Leonard d/b/a Rainey's Security
Agency, or any other employer, where an object
thereof is to force or require Rainey's Security Agen-
cy, or any other employer, to recognize and bargain
with General Service Employees Union Local No. 73,
affiliated with Service Employees International
Union, AFI.-CIO, as a representative of their guard
employees, or to force or require the guard employees
of Rainey's Security Agency, or any other employer,
to accept or select General Service Employees Union
Local No. 73 as their collective-bargaining representa-
tive when Rainey's Security Agency, or any other em-
ployer, has lawfully recognized another labor organi-
zation in accordance with the Act and a question
concerning representation cannot appropriately be
raised under Section 9(c) of the Act.
WE WILL NOT threaten to picket, picket, or cause to
be picketed Mack Leonard d/b/a Rainey's Security
Agency, or any other employer, where an object
thereof is to force or require Rainey's Security Agen-
cy, or any other employer, to recognize and bargain
with General Service Employees Union Local No. 73,
affiliated with Service Employees International
Union, AFL-CIO, as a representative of their guard
employees or to force or require the guard employees
of Rainey's Security Agency, or any other employer to
accept or select General Service Employees Union Lo-
cal No. 73 as their collective-bargaining representative
when General Service Employees Union Local No. 73
has not been certified as the collective-bargaining rep-
resentative of such employees and cannot be certified
by virtue of provisions of Section 9(b)(3) of the Act.
GENEFRAL SERVICE EMPLOYEES UNION LOCAL No 73,
AFFILIATED WITH SERVICE EMPLOYEES INTERNATIONAL
UNION. AFL-CIO
1243