General Service Employees Union Local 73

National Labor Relations Board - Board Decisions

Nov 17, 1978

239 N.L.R.B. 295 (N.L.R.B. 1978)

GENERAL SERVICE EMPLOYEES UNION LOCAL 73
General Service Employees Union Local No. 73, affil-
iated with Service Employees International Union,
AFL-CIO and Andy Frain, Inc. and Allied Securi-
ty, Inc. Cases 13-CC-963, 13-CC-990, and 13
CC-964
November 17, 1978
DECISION AND ORDER
By MEMBERS PENELLO, MURPHY. AND TRUESDAI.E
On March 20, 1978, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in response to Respondent's excep-
tions.
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.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge. 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:
1. Substitute the following for paragraph I(a):
"(a) Engaging in, or inducing or encouraging indi-
viduals employed by Braniff International Airlines
or any other individual employed by any person en-
gaged in commerce or in an industry affecting com-
merce to engage in, a strike or a refusal in the course
of their employment to use, manufacture, process.
transport, or otherwise handle or work on any goods.
articles, materials, or commodities or to perform any
service; or threatening, coercing. or restraining Bran-
iff International Airlines or any other person en-
gaged in commerce or in an industry affecting com-
merce, where in either case an object thereof is
forcing or requiring Braniff International Airlines or
any other person to cease using, selling, handling,
transporting, or otherwise dealing in the products of
Andy Frain. Inc., or any other producer. processor.
or manufacturer or to cease doing business with
Andy Frain, Inc.. or any other person, or forcing or
requiring Andy Frain, Inc., or any other employer to
recognize or bargain with Respondent as the repre-
sentative of its employees unless such labor organiza-
tion has been certified as the representative of such
employees under the provisions of Section 9 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
Respondenl has excepted to certain credibility findings made bs the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibdlit,
unless the clear preponde ance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dri Wall Products. Inc. 91
NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefull)
examined the record and find no basis for reversing his findings In affirm-
ing the Administrative Law Judge's credibility findings with respect to Da-
vid l oewenberg. however. we disavow his partial reliance on similar resolu-
tions coincerning Loewenberg's credibility made in prior Board cases hb
olher Administrative Law Judges.
2 In par. 1(a) of the recommended Order, the Administrative Law Judge
prosided. inter aina, that Respondent shall cease and desist from certain
actlts ts where an object thereof is "forcing or requiring And) Frain. Inc.. or
ans other emploser to recognize or bargain with Respondent as the repre-
sentatise of such employees under the provisions of Section 9 of the Act."
We shall modify the recommended Order to conform to the language of
Sec 8(h)(4)(B) of the Act, which proscribes such activity by a labor organi-
zation "unless such labor organization has been certified as the representa-
tive of such emplosees under the provisions of Section 9 of the Act."
Member Murph), contrar) to her colleagues. concludes that the notice-
posting requirements of the recommended Order. in addition to the broad
cease-and-desist provisions. are sufficient to remedy the unfair labor prac-
tices found herein and that an order that Respondent publish the notice
herein il a newspaper of general circulation in the Chicago area is neither
warranted nor justified. In this regard. Member Murphy points out that she
dissented from the Board majority's holdings in previous cases that Respon-
dent iolated Sec 8b)t7)((C) of the Act (Generul Service Emplorees Local
t monll ,, '1. alfihlated with Service Emplouiees Inlernational Union. A4F
(l0 i4 I Sici'uriti S'reice (Co . 224 NLRB 434 (1976). and General Serice
Limpt lcc, Il , o nLocal iso. 73. affiliated with Service Emploqees Iniernational
t 1 1m. 4 . ( 10. 230 NLRB 351 (1977), and concludes that Respondent's
previous s.lolations of Sec 8(b)(4) do not establish such a propensity to
disregard the strictures of the Act as to require the extraordinary remed) of
ncwspalper publication of the notice.
APPENDIX
No IC'E To EMPI.O(YEES ANI) MEMBERS
POSTED BY ORDER OF THE
NAIIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity
to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
Wli WILL NOT engage in. induce, or encourage
any individual employed by Braniff Internation-
al Airlines or any other individual employed by
295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any person engaged in commerce or in an indus-
try affecting commerce to engage in, a strike or
a refusal in the course of their employment to
use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, ma-
terials, or commodities or to perform any ser-
vice; or threaten, coerce, or restrain Braniff
International Airlines or any other person en-
gaged in commerce or in an industry affecting
commerce, where in either case an object thereof
is forcing or requiring Braniff International Air-
lines or any other person to cease using, selling,
handling, transporting, or otherwise dealing in
the products of Andy Frain, Inc., or any other
producer, processor, or manufacturer or to cease
doing business with Andy Frain, Inc., or any
other person, or force or require Andy Frain,
Inc., or any other employer to recognize or bar-
gain with Respondent as the representative of its
employees unless such labor organization has
been certified as the representative of such em-
ployees under the provisions of Section 9 of the
Act.
WE WILL NOT engage in, or induce, or encour-
age any individual employed by Hertz Corpora-
tion or any other individual employed by any
person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a
refusal in the course of their employment to use,
manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials,
or commodities or to perform any service; or
threaten, coerce, or restrain Hertz Corporation
or any other person engaged in commerce or in
an industry affecting commerce, where in either
case an object thereof is forcing or requiring
Hertz Corporation or any other person to cease
using, selling, handling, transporting, or other-
wise dealing in the products of Allied Security,
Inc., or any other producer, processor, or manu-
facturer, or to cease doing business with Allied
Security, Inc., or any other person, or force or
require Allied Security, Inc., or any other em-
ployer to recognize or bargain with Respondent
as the representative of employees unless such
labor organization has been certified as the rep-
resentative of such employees under the provi-
sions of Section 9 of the Act.
GENERAL SERVICE EMPLOYEES UNION L(OCAL
No. 73, AFFILIATED WITH SERVICE EMPLOY!ES
INTERNATIONAL UNION. AFL-CIO
DECISION
STATEMENT OF THE CASE
ROBERT A GIANNASI. Administrative Law Judge: This
case was heard before me from June 27 through June 30,
1977, in Chicago, Illinois. The case is based on a consoli-
dated complaint which issued on February 4, 1977, alleging
that Respondent violated Section 8(b)(4)(B) of the Act by
certain conduct directed against neutrals and their employ-
ees in two diaputes, one with Andy Frain, Inc. (herein
Andy Frain), and the other with Allied Security, Inc.
(herein Allied).' Subsequently, charges were filed in an ad-
ditional case, Case 13-CC-990, alleging that Respondent
violated Section 8(b)(4)(B) by picketing the same neutral
employer, Braniff, involved in one of the earlier charges, in
furtherance of its dispute with Andy Frain. As a result, an
Order was issued consolidating this case with the outstand-
ing consolidated matter.
Respondent filed answers denying the critical allegations
in the complaint, and the parties filed proposed findings
and briefs.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I hereby make
the following:
FINDINGS OF FACT
I THE LABOR ORGANIZATION
General Service Employees Union Local No. 73, affiliat-
ed with Service Employees International Union, AFL
CIO, herein called Respondent or Union, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
11. THE BUSINESS OF IHE EMPLOYERS
A. The Andy Frain Case
In accordance with the stipulation of the parties, I find
that Andy Frain, Inc.. has been and is now an Illinois cor-
poration engaged in the business of providing personnel
for crowd control, baggage inspection, passenger screening,
and other services. During the past calendar year, a repre-
sentative period, Andy Frain, Inc., has performed services
valued in excess of $50,000 for United Airlines and Braniff
International Airlines. During the same period of time,
United and Braniff have each purchased and received
goods and materials valued in excess of $50,000 directly
across state lines.
Although Respondent made no objection to assertion of
jurisdiction in an earlier case involving Andy Frain and
United Airlines, at the hearing herein, Respondent argued
that Andy Frain was so "intimately connected" with Bran-
iff, the secondary employer herein and an air carrier sub-
ject to the Railway Labor Act, that Andy Frain shares
One of the cases, (ase 13 (CC 963. Inv.olving Andy F rain was settled by
agreement on January 24, 1977. Fiow.ever. the settlement agreement was set
aside after new charges were filed in Case 13 (CC 964 and the consolidated
complainlt issued.
296
GENERAL SERVICE EMPLOYEES UNION LOCAL 73
Braniff's exemption as an employer under Section 2(2) of
the Act. I disagree. Although later in this Decision I reject
the premise of this contention in connection with a sub-
stantive defense to the alleged secondary activity, it is quite
clear that even assuming, arguendo. that Andy Frain was a
Railway Labor Act employer, as Respondent alleges. the
Board has jurisdiction. Section 8(b)(4) of the Act prohibits
the conduct of labor organizations with respect to "per-
sons" engaged in commerce, even if those "persons" are
not "employers" within the meaning of Section 2(2) of the
Act. See Local 3, International Brotherhood of Electrical
Workers, AFL-CIO (Mansfield Contracting Corporation),
205 NLRB 559, 563 (1973); Local No. 16, International
Longshoremen and Warehousemen's Union (Citr of Juneau).
176 NLRB 889 (1969).'
In view of the above, I find that both Andy Frain and
Braniff are persons engaged in commerce within the mean-
ing of Sections 8(b)(4) and 2(6) and (7) of the Act and that
assertion of jurisdiction herein is warranted.
B. The Allied Case
Respondent stipulated that at all times material Allied
was and is an Illinois corporation engaged in the business
of providing contract security guard services; during the
past calendar year, Allied has performed services valued in
excess of $50,000 for Arthur Rubloff & Co.. and during the
same period Rubloff has rendered services in excess of
$50,000 directly across state lines. Respondent also admit-
ted that Allied was an employer within the meaning of the
Act. Accordingly, I find Allied is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act and a person within the meaning of Section
8(b)(4) of the Act and that assertion of jurisdiction is war-
ranted.
III. THE FACTUAL BASIS FOR THE ALLEGED UNFAIR LABOR
PRACTICES
A. Prior Litigation
On December 27, 1974, in R. R. S., Inc., Security and
Investigation Service Division, Cases 13-CC-836 and 13-
CP-277 (unpublished), Administrative Law Judge George
J. Bott found that Respondent violated Section 8(b)(7)(C)
of the Act by threatening to picket, and picketing, neutral
clients of R. R. S. with an object of forcing R. R. S. to
recognize or bargain with it, although it was not and could
not be certified under the Act. The Administrative Law
Judge further found that Respondent violated Section
8(b)(4)(i) and (ii)(B) by threatening to picket, and picket-
ing, neutral employees with an object of having them cease
doing business with R. R. S. and forcing R. R. S. to recog-
nize or bargain with it. The unlawful conduct therein in-
volved, inter alia, telephone conversations between Re-
spondent's attorney, David Lowenberg, and neutral
2 Respondent's reliance upon The Wackenhut ( orp.. 203 NL RB 86 1973}.
is misplaced. since that case did not deal with the issue of whether an entiit
is a "person" for purposes of Sec 8(h)(4) of the Act. the section inollved in
this case.
employers. In that case Judge Bott rejected Respondent's
contention that its conduct was based on area standards
objectives. No exceptions were filed to this Decision. and it
was adopted by the Board by Order dated January 22,
1975.
On September 23. 1975, in A-I Securitv Service Co., Ad-
ministrative Law Judge James 1. Barker found that Re-
spondent violated Section 8(b)(7)(C) by threatening to
picket A-I Security for recognition at a time when it could
not file a valid petition for certification. The evidence in-
volved Lowenberg telephone conversations with neutrals
and Union representatives' concurrent visits to these neu-
trals. Respondent was also found to have had a recogni-
tional object, despite the fact that it sent area standard
letters to A-I Security disclaiming any recognitional object.
The Administrative Law Judge dismissed the 8(bX4)(ii)(B)
allegations, finding that Respondent had limited its recog-
nitional activities to( A-I Security and had assured its client
that any picketing would be directed to A-l. No picketing
occurred in that case. However, based on Respondent's
violations in R. R. S. Security, Judge Barker found that
Respondent had a proclivity to violate Section 8(b)(7)(C)
and issued a broad remedial order. The Board, with Chair-
man Fanning and Member Murphy dissenting, at 224
NLRB 434 (1976), affirmed the findings of Judge Barker
but limited the breadth of the Order, stating that the evi-
dence at that time failed to establish "proclivity" to violate
Section 8(b)(7)(C) of the Act.
In November 1976, the parties to the present proceeding
were involved in a proceeding before Administrative Law
Judge Walter Maloney. On November 8, 1976. Respondent
withdrew its answer in Case 13-CC-942 (Andv Frain, Inc.)
and Cases 13-C-947 and 13-CP-327 (Allied Securitv Inc.)
and agreed to the issuance of a 10(1) injunction. On No-
vember 29, 1976, Judge Maloney found that all complaint
allegations were deemed admitted and accordingly found
that Respondent violated Section 8(b)(4)(ii)(B) by threat-
ening to picket United, a customer of Andy Frain. with the
proscribed cease-doing-business and recognitional objects
and Section 8(b)(4)(i) and (ii)(B) by threatening to picket,
and picketing, other neutral customers of Allied and Hertz
with the proscribed cease-doing-business and recognitional
objects. Exceptions to this decision were filed by both Re-
spondent and the General Counsel, and on June 21, 1977,
the Board affirmed the decision. Members Jenkins and
Walther, with Member Murphy dissenting, also agreed that
Respondent's threat to picket and picketing of Allied was
violative of Section 8(b)(7)(C). 230 NLRB 351 (1977). 3
O(n Jul 25. 1977. in .Itanaigement Safeguards. Inc., 13 CA 15928. Ad-
ministrative law Judge Robert C. Batson found that Respondent siolated
Sec 8(b)( I A) and (2) of the Act when Respondent requested and accepted
recognition from the emploer when it did not represent a majorits of the
cormpany's employees and subsequently entered into and enforced a collec-
sive-bargaining agreement with a union-securitS clause. lie concluded that.
because of Respondent's past conduct and its violation of the settlement
agreement in Case 13 CC 963 herein. the Region did not act improperly in
refusing to take an informal settlement in that case On the basis of Respon-
denl's past conduct, as well as its siolation In the case before him. Judge
Baltson found that Respondent exhibited a "prochvity" to violate the Act
and issued an appropriate cease-and-desist order No exceptions were taken
to this Decision, and on September 9. 1977. the Board aidopted it
297
DECISIONS OF NATIONAl LABOR RELATIONS BOARD
B. The Andy Frain Dispute
1. Background
Andy Frain, Inc., which has been in existence since
1924, provides personnel to enterprises to perform as ush-
ers, doormen, chauffeurs, hostesses, badge checkers, bag-
gage inspectors, and wheelchair attendants. Since about
1970, Andy Frain has recognized Local 236, Service Em-
ployees International Union, as the exclusive representa-
tive of its employees. In August 1972, Local 236 and Andy
Frain executed an addendum to the then-existing contract
whereby the classification of baggage inspectors was in-
cluded in the recognition clause of the contract as an accre-
tion to the existing unit. This classification covered the em-
ployees of Andy Frain who performed various functions
for certain airlines at O'Hare Airport in Chicago.
Andy Frain is to be distinguished from Andy Frain Se-
curity Services, Inc., a separate corporation that has been
in existence since about 1967. This company provides
guard services to various enterprises but does not employ
passenger screening employees or other employees who
work at O'Hare Airport. Andy Frain Security Services,
Inc., is party to a master contract with Respondent. The
contract's recognition clause covers guards "who are per-
manently assigned to fixed positions at a customer's prem-
ises . . . regardless of the particular job classification or
title" in the Chicago metropolitan area.
About August 1975, David Loewenberg, Respondent's
counsel, had a conversation with Michael Frain, president
of Andy Frain. Loewenberg said that there was a matter of
urgency concerning the airport about which he wished to
talk to Frain, and they agreed to meet in person. Three or
four days later, Loewenberg met with Frain at Andy
Frain's offices. Loewenberg stated that the Andy Frain
personnel at the airport were guards and that, therefore.
they had to belong to Respondent. According to Frain,
Loewenberg also may have mentioned that he considered
that Respondent's contract with Andy Frain Securities Ser-
vices, Inc., already covered the employees at the airport.
Frain objected and stated that they were not guards and
that they were members of Local 236. He suggested that
Loewenberg discuss the matter with Local 236. Loewen-
berg said that the issue involved only Respondent and
Andy Frain. Loewenberg then asked Frain to sign a con-
tract covering the employees at the airport, but Frain re-
fused. Loewenberg responded by saying that if Frain did
not sign a contract, he would have to take "appropriate
action." Frain asked what Loewenberg meant by that, and
Loewenberg responded that "he would have to put pickets
at the airport." Loewenberg further stated that since, in his
view, the employees were guards, they had to be licensed
by the State of Illinois.
About the same time, Frain received a call from Harry
Kirshenbaum, Respondent's Director of Staff Activities.
Kirshenbaum stated that the airport employees were
guards and had to belong to Respondent. Frain again ob-
jected to that assertion. Kirshenbaum said he wanted Frain
to sign a contract covering those personnel and that, if
Frain did not, he would have to take action on behalf of
Respondent. Picketing was mentioned. Kirshenbaum said
that if Frain agreed to transfer the employees to Respon-
dent he was sure Respondent could "work it out" so that
Andy Frain was not hurt financially. 4
On September 17, 1975, Loewenberg sent a letter to
Frain charging that Andy Frian was failing to abide by the
contract between Andy Frain Security Services and Re-
spondent because the contract was not being applied to the
airport employees. Loewenberg continued by stating, "So
that there can be no misunderstanding as to what Local 73
desires with respect to both items, it is our contention that
any person performing duties at the airport is covered by
our agreement." Loewenberg then again claimed Respon-
dent was the bargaining agent of the employees and re-
quested certain information. Loewenberg contended in the
letter that even though the employees may have had non-
guard responsibilities in addition to guard responsibilities
they were nonetheless covered by the contract with Re-
spondent. Loewenberg concluded by asserting that all the
terms and conditions of the contract must be applied to the
airport employees.
On December 12, 1975, Andy Frain, through its attor-
ney. responded to Loewenberg's letter by informing him
that the baggage inspection employees at the airport were
covered by a contract with Local 236 and that, therefore,
Andy Frain could not recognize Respondent. By letter dat-
ed December 16, 1975, Loewenberg responded to the Andy
Frain letter. Loewenberg stated Respondent's "contention"
that Andy Frain had a contract with Respondent which
covered the airport employees. He also stated that Respon-
dent would "take whatever steps are necessary to enforce
our contract with your client."
2. The Braniff incidents
By letter dated December 30, 1976, Braniff notified
Andy Frain that, effective January 31, 1977, Andy Frain
would provide the passenger screening services for Braniff,
replacing Guardsmark Services, which had previously per-
formed this work for Braniff. At about the same time,
Guardsmark was informed that Braniff would no longer be
using its services.
Shortly thereafter, on or about January 5, 1977, Rod
Ruppel, manager of passenger services for Braniff at
O'Hare, received a telephone call from Loewenberg. Loew-
enberg asked if Braniff was planning to terminate its con-
tract with Guardsmark and use Andy Frain. Ruppel said
that there was such a possibility and asked why Loewen-
berg was interested. Loewenberg responded by asking if
Ruppel realized that if he used Andy Frain he would be
"in violation of what State Attorney Carey was investigat-
ing." Ruppel said he did not want to get into any union
disagreements, to which Loewenberg replied that he was a
counsel representing Respondent. Loewenberg continued
by asking Ruppel if he would hire a concern and jeopar-
dize the passengers knowing that they were not "in compli-
ance," apparently referring to the state licensing statute.
Ruppel said that he would not but that Andy Frain had
represented itself as a certified screening organization.
4 Kirshenh;baim did not testify.
298
GENERAL SERVICE EMPLOYEES UNION LOCAL 73
Loewenberg said. "Well. the' are not. If you go with And,
Frain. we are going to picket Braniff and pass out pam-
phlets to the passengers stating that Braniff is hiring a con-
cern that is not in compliance." Ruppel asked if Loewen-
berg was sure he could do this, because it had to be cleared
with the airport management. Loewenberg said he could
by simply getting a permit. After some further conversa-
tion. Loewenberg asked. "Why don't you cooperate with
me because TWA and United cooperated with me." Rup-
pel said he didn't know what "their policies were." and the
conversation ended.5
On May 3. 1976. Respondent wrote Andy Frain stating
that Andy Frain did not meet area standards for the em-
ployment of guards. Respondent claimed that the letter
was being submitted "for the sole purpose of determining
whether your Company meets area standards." The letter
continued. informing Andy Frain that it was necessary to
respond to the letter promptly if it did meet area standards
in order to avoid "lawful area standards picketing" and
that unless Andy Frain responded in 10 days Respondent
would conclude that Andy Frain did not meet area stan-
dards and would "take appropriate action." The letter ac-
knowledged the existing contract with Local 236 but stat-
ed, "our object in pursuing this matter is not for the
purpose of attempting to organize or represent your em-
ployees." Andy Frain responded to this letter by letter dat-
ed May 7, 1976, stating that its current contract with Local
236 met area standards for all classifications and referring
Respondent to Local 236.
About a month later. Booker LaGrone. a representative
of Respondent, had a conversation with Michael Frain at
Andy Frain's office. LaGrone said he felt sure he could be
helpful in working out an agreement with Local 73 if Andy
Frain simply agreed to transfer coverage of its airport em-
ployees, who at the time numbered 200 to 250, to Local 73.
On about June 30. 1976, Loewenberg met with Michael
Frain. Loewenberg stated that Respondent was the Union
that had to represent the Andy Frain employees at the
5 The above is based on the candid testimons of Ruppel. most of which
was corroborated by Locwenberg. Loewenberg admitted that he called
Ruppel. and he testified that Ruppel confirmed the rumor that Andy Frain
was going to be hired to do the securitb work for Braniff. Loewenherg told
Ruppel that there was a lawsuit pending by the Stale's Attorney that Ands
Frain was unlicensed. Loewenberg admitted that he asked Ruppel to hold
oft doing business with Andy Frain until the licensing question was re-
solved. Ruppel responded that he was not concerned and that Andy Frain
was going to do the security work. Loewenberg told Ruppel that if Braniff
retained Andy Frain Respondent would leaflet the patrons of Braniff and
advise them that they were using an unlicensed carrier.
The only significant conflict is Loewenberg's denial that he threatened to
picket Braniff. I credit Ruppel. who appeared to me to be a reliable witness
whose testimony was unimpeached and detailed. The testimon. concerning
the threat to picket is consistent with Board findings that Loewenberg made
similar threats in two prior cases. R. R. S. Inc.. and A-i Securnr-. supra.
Indeed. Loewenberg's testimony was reJected by Administrative Law Judge
Barker in A-i Security (224 NLRB at 444. fn. 9). Moreover. Loewenberg's
testimony seemed more tailored to supporting Respondent's litigation theo-
ry than to candidly describing the events about which he testified. For
example. Loewenberg testified that he could not have used the work "pick.
et" because he had made the "mistake" of using that word before in the
United Airlines matter. Yet Loewenberg apparently had made the same
"mistake" in two earlier cases. and Respondent did actualls picket Braniff.
lending further credence to the fact that Loewenberg did indeed make the
threat as Ruppel testified.
airport. and he once again demanded that And, Frain sign
a contract covering those employees. Frain said that if he
did not sign a contract with Respondent he was certain
Local 236 would charge Andy Frain with breach of con-
tract. since the employees were alread, covered b, Re-
spondent's sister local. Kirshenbaum. who was also pres-
ent. then stated that Respondent would be willing to
indemnify Andy Frain against an) claims bs l.ocal 236.
Frain asked about the contents of a contract. The union
representatives had a conference and then said that if the
conversation on the contract were to continue. it would
have to be an off-the-record type of conversation. Frain
rejected this suggestion. Before the meeting ended. Loew-
enberg said that he had information that the State's
Attorney's office was going to place charges against Andy
Frain. apparently for noncompliance with the state licens-
ing statute. unless this matter was settled. Frain then said
that he could not Understand how the State's Attorne)'s
office would get involved in what appeared to be a union
dispute. 6
3. The picketing at Braniff's ticket counter at O'Hare
Airport
On May 31. 1977. Union Agents Wesles and Piecos ap-
peared at the Braniff ticket counter located at O'Hare Air-
port. Piecos displayed a sign about 24 inches by 36 inches
which was carried on his chest and held by a string around
his neck. The sign displayed by Piecos read as follows:
NOTICE TO PATRONS OF BRANIFF AIRLINES ANDY FRAIN IN('
GUARIDS EMPLOYED BY THE ABOVE COMPANY ARE NOT BEING
PAID THE PREVAILING AREA STANDARDS
OUR ONLY DISPL TE IS WITH THE ABOVE COMPANY
WE HAVE NO DISPUTE WITH ANY OTHER EMPLOYER AT THIS LO-
CATION
GENERAL SERVICE EMPLOYEES UNION LOCAL ?73
Piecos was located about 20 to 30 feet from the Braniff
ticket counter. and he patrolled the area by walking back
and forth.7 This occurred in plain view of the Braniff em-
ployees who work at the ticket counter issuing tickets.
checking baggage. and assigning seats.
With the exception of the June 1976 conversation between Frain and
LaGrone. all of the above evidence stands undenied. Although Respondent
called Loeenberg to testify. it failed to question him concerning these
evenls. Kirshenbaum was not called to testifs. Moreover. the above lesti-
mon. was unimpeached and is logicall5 consistent.
I also credit Frain's version of the June 1976 conversation with LaGrone
It is consistent with the entire sequence of events. and Frain impressed me
as a straightforward and reliable witness. LaGrone's testimons. on the other
hand. is not credible. For example. it seems incredible that Frain would ask
LaGrone who Loewenberg was. as LaGrone testified Also. LaGrone
glossed over key parts of the consersalion when he testified that Frain said
"in regard to sou know. somethine."
Wesles testified that neither he nor Piecos walked back and forth in
front of the Braniff ticket counter However. this testimons is clearls Incor-
recl. The pictures taken on this and other occasions and received into csl-
dence clearly show both Piecos and Wesley walking back and forth in front
of the Braniff ticket counter. In view of this. and because neither witness
impressed me as candid or reliable in his demeanor. I discredit their testi-
mon, where it conflicts with that of other witnesses.
299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Andy Frain's baggage and passenger screening employ-
ees for Braniff flights were situated in another corridor of
the airport some three city blocks away from the Braniff
ticket counter: those checking Braniff passenger baggage
were one floor below.
Thereafter, on June 2, 1977, Piecos again appeared at the
same location with the sign, and he patrolled the area,
again with the assistance of Wesley. Piecos also appeared
with the sign on June 7, 9, 10, 16. 17, and 21. On June 17,
the sign was modified so that the portion which read "No-
tice to Patrons of Braniff Airlines" was deleted.
At various times leaflets were distributed concurrently
with the picketing. One such leaflet, addressed to the pa-
trons of Braniff, discussed Respondent's concern over the
wages paid by Andy Frain to its employees. Earlier, begin-
ning about February 1, 1977, Respondent had distributed
various other leaflets at the airport. These dealt with a con-
cern that Braniff's "security contractor." Andy Frain, Inc.,
was not licensed under Illinois law. In February 1977,
Andy Frain registered under Illinois law.
C. The Allied Dispute
I. Background
Allied performs uniform security services for businesses
in the Chicago metropolitan area, as well as private investi-
gatory and security consulting work for individuals and
corporations. Allied maintains its business office at 1130
Garfield Street, Oak Park, Illinois, where it interviews,
hires, schedules, trains, and pays its employees, bills its
customers, and receives all business supplies. Allied re-
ceives no deliveries at any location other than its Oak Park
office in the Chicago area.
Since May 1972, Respondent has repeatedly attempted
to have Allied sign a contract with it. By letter dated May
30, 1972, Union Representative Les Carter stated, "For a
number of months, I have made repeated visits to your
office concerning our request to obtain recognition as the
union bargaining agent for your employees." The letter
continues, noting that George Wilson. an Allied official,
claimed throughout these contacts that he had no authority
to "discuss terms of a union contract" but would arrange a
meeting when Allied's president came to Chicago. The let-
ter also states:
We have no alternative other than to notify the public
and your clients that a labor problem exists between
your company and this union, and we will urge ev-
eryone to support the working men and women of
Chicago by insisting that work performed should meet
union standards.
Carter ended the letter by stating "I am sorry that we have
been unable to resolve our problems in a peaceful manner"
and noting that he was still prepared to meet with Allied.
In 1973, the Respondent had two meetings with Allied
officials in an attempt to secure a contract. Jack Carpenter,
Allied's regional manager at the time, testified that the first
of these meetings took place in April 1973 in Respondent's
office. Present were various Allied officials and officials of
Respondent, including Irv Kurasch. The Allied officials
made inquiries about the terms of the contract or agree-
ment which Respondent had previously presented to Wil-
son. They mentioned that Allied had three clients, includ-
ing Skill Corporation, which would not employ a union
guard force, whereupon Kurasch assured them that these
three could be excluded from any agreement signed. Car-
penter then asked Kurasch where the employee pledge
cards were, and he stated that it was not his understanding
that a vote had been taken. Kurasch's reply was:
They' didn't do it that way in Chicago. . . the normal
thing was to solicit the companies and the company
would sign the agreement with the union and then the
guards would automatically fall into the union at the
management's direction.
After discussing how the parties had reached the stage of a
written agreement, Carpenter asked why Allied had been
contacted. Kurasch replied that a number of Respondent's
member agencies had complained that Allied was soliciting
some of their accounts and had been successful in obtain-
ing one. When Allied inquired of what benefit it would be
for them or anyone to join the Union, Kurasch replied that
Respondent tries to protect its members "when they hear
that a non-union agency is soliciting a union account, they
go to the prospective client and they present him a list of
all the member agencies." Carpenter asked the purpose of
presenting an approved list, and Kurasch replied, "Well,
they usually get the message." Carpenter then asked what
happened when a firm refused to sign an agreement with
Respondent, and Kurasch stated, "Well, we picket them
. . . we usually picket some of their clients and they usual-
ly lose the business." After Carpenter explained that Allied
wanted to analyze the proposed agreement prior to another
meeting, he asked Kurasch what would happen if they
couldn't agree. Kurasch said, "Well, naturally we'll picket
you."
On July 31, 1973, Allied officials again met with Respon-
dent's officials, including Les Carter and Irv Kurasch. Ku-
rasch opened the meeting by stating, "Well, finally we are
here. Let's wrap this whole thing up." At that point,
Allied's labor attorney made a statement telling Respon-
dent that he had advised Allied not to sign the contract
because he believed it was an illegal agreement. Kurasch
replied, "What the hell does that mean?" When Carpenter
informed him that Allied was not going to enter into an
agreement with Respondent, Kurasch jumped up and
pounded his fist on the table and said, "God damn, what
the hell?... all these months we have been waiting for
this?. . . We are going to put you out of business." Car-
penter explained that Allied was not going to sign a con-
tract with Respondent. Upon leaving this meeting, Ku-
rasch looked at Carpenter and said, "You know what we
are going to do."
Respondent's next communication with Allied was by
form letter dated August 27, 1974, in which Respondent
requested wage and fringe benefit information from all
nonunion guard agencies in Chicago. This letter was signed
by Respondent's attorney, David Loewenberg. Although
this letter claimed that it would not be necessary for Re-
spondent to take further action against companies it con-
sidered in compliance with area standards, it stated:
300
GENERAL SERVICE EMPLOYEES UNION LOCAL 73
If we do not hear from you within 72 hours of the date
of this letter, we can only assume that you choose not
to answer this inquiry and we shall proceed to imme-
diately advise customers of your substandard wage
and beniefit rates and take whatever action is neces-
sary to alleviate this situation.
On September 6, 1974, Allied's counsel responded to
Loewenberg's letter requesting wage information, stating
that it believed that Respondent was still interested in rec-
ognition.
On July 6, 1976, Respondent sent out another "area
standards" letter to Allied stating "We have reason to be-
lieve that your company does not comply with area stan-
dards in the employment of guards in this area." This letter
gave Allied 10 days to reply in order to avoid "lawful area
standards picketing" but again admonished that failure to
reply would lead Respondent to conclude that Allied was
not in compliance and therefore "to act accordingly."
2. The Hertz incidents in September 1976
The Hertz car rental facility at O'Hare Airport employs
security guard services to check all vehicles leaving its lot
for authentic paperwork on a 24-hour-a-day, 7-day-a-week
basis. Prior to September 15, 1976, Hertz used the guard
services of Knight Patrol and effective that date changed
its security services to Allied. The security guard stationed
at Hertz is located in a booth adjacent to the Hertz exit
gate. The exit gate is approximately 360 yards distant from
the Hertz entrance.
On August 18, 1976, while Hertz was using the services
of Knight Patrol, Patricia O'Brien, Hertz city manager at
O'Hare Airport, received a phone call from Respondent's
agent, Charles Bonesz, who identified himself and asked
O'Brien if she was aware that Knight Patrol and Allied
(whom Avis was using at the time) were not meeting "area
standards." O'Brien asked what that meant, and Bonesz
replied that it involved pay and benefits. Bonesz also men-
tioned that Hertz would be picketed but stated that the
picketing would be directed against the security service,
not against Hertz. Bonesz also told O'Brien that Respon-
dent was not interested in getting new members and that it
already had enough members.
On September 1, 1976, O'Brien sent a letter to Knight
Patrol informing them that their services would be termi-
nated as of September 15, 1976. On September 13, 1976.
O'Brien received a phone call from loewenberg, who iden-
tified himself as general counsel for Respondent. Loewen-
berg informed O'Brien that Knight Patrol was "coming in
to work things out" and that Allied was not, and he repeat-
ed this a number of times throughout the conversation.
O'Brien inquired what the area standard was, and Loewen-
berg told her it was $3.60 per hour, including fringes.
Loewenberg asked where the guard booth was located, and
O'Brien informed him that it was located at the Hertz exit
gate. Loewenberg then asked O'Brien when Hertz was
making the changeover in guard services, and O'Brien told
him it would be that Wednesday, September 15. Loewen-
berg stated that there would be possible picketing, that the
picketing would be directed at the security service, not at
Hertz, and that it would take place at the guard booth.
O'Brien replied that she hoped the picketing would not
interfere with her business, and Loewenberg replied to the
effect that some people do not like to cross picket lines.
On September 22, 1976, just I week after Allied took
over the security work at Hertz, O'Brien was visited by
Respondent's agent. LaGrone. LaGrone told O'Brien that
Respondent would be picketing her location. Hle asked
O'Brien if she had spoken to anyone from Respondent be-
fore, and O'Brien told him that she had spoken to Bonesz,.
who told her that Respondent was not interested in new
members. LaGrone replied, "That's not quite true. We do
have 18,000 members, and we are always interested in new'
members." LaGrone asked O'Brien where the guard booth
was located, and she told him it was at the exit gate. La-
Grone stated that Knight Patrol had "come in and worked
things out" and that Allied had not. Then laGrone told
O'Brien a "story" about a woman he had visited the previ-
ous da\ who was in a position similar to O'Brien's and that
Respondent was going to picket her. LaGrone continued,
stating that this woman asked him if Respondent would
give her a few days, since she did not want to be picketed,
and that she would try and find a way of working it out so
she could avoid the picketing. LaGrone told O'Brien that
there were about 80 security services which met area stan-
dards in the phone book, and that he would not suggest
which one to use, but there were others which met area
standards. LaGrone also told O'Brien he was sorr: to see
her in the middle of this, since his problem was with the
security service, not with Hertz. O'Brien stated that she
hoped the picketing would not interfere with her business,
and l.aGrone replied that some people do not like to cross
picket lines.
After LaGrone left her office, O'Brien called an official
of Allied and told him she was told that Hertz would be
picketed. Respondent did not picket at the exit gate on that
date, but two cars owned by Respondent's agents were
parked at the entrance gate, and six or seven individuals
with picket signs appeared at the entrance gate to the Hertz
facility. These individuals walked back and forth of the
Hertz entrance gate carrying picket signs. TIhe entrance
gate is used by Hertz customers and employees.
In the early afternoon, while Respondent's pickets were
at the Hertz entrance gate, John Bettini, Hertz assistant
city manager at O'Hare, saw a car carrier truck parked on
the road in front of the Hertz entrance gate. Bettini noticed
that the driver of the truck was out of the truck talking to
someone, and that his truck was blocking the passage of
Hertz customers and the courtesy buses belonging to Hertz
and other car rental companies. Bettini went to the Hertz
entranc- and approached the truckdriver. who was en-
gaged in a conversation with LaGrone. Bettini asked the
truckdriver what the problem was, and the truckdriver,
who was delivering new cars to Hertz, asked Bettini if any
of his employees were on strike. Bettini stated that none of
his employees were on strike and that Hertz did not have
any labor problems. At this point LaGrone protested, "but
you do have a labor problem here." Bettini replied. "No,
we don't. None of our employees are engaged in any
strike." The truckdriver stated that he could not cross the
picket line and enter the Hertz lot if any of their employees
301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were on strike. Bettini assured the driver that none of his agents at the same location at the Hertz entrance gate. The
employees were on strike and directed the driver into the same signs were posted in the window and windshield of
Hertz lot. the cars. Respondent's agents remained at the Hertz en-
After the driver entered the Hertz lot, Bettini and La- trance gate on this occasion until about 4 p.m.
Grone had a further conversation at the Hertz entrance Respondent's agents returned to the Hertz facility at ap-
gate. LaGrone asked Bettini why he had approached the proximately 8 a.m. on December 27, 1976, and stationed
gate and Bettini replied that he saw a traffic problem and themselves and their cars at the same location at the Hertz
wanted to find out what the problem was so he could cor- entrance gate. The same signs were posted in the window
rect it. Bettini credibly testified as follows: and windshield of the cars. O'Brien credibly testified that it
He had told me that he wanted to make people aware was on this occasion that Bonesz' car was parked too close
of the problem that we had there. I told him we didn't to the entrance gate, making it difficult for buses and cars
have any problem. He told me that we did have a to enter the Hertz lot. She approached the entrance gate
problem, and our problem was with the security ser- and asked Bonesz to move his car back, explaining that it
was difficult for buses and cars to enter the lot. Bonesz
directly at to e guard shack] weren't brothers or moved the car a few feet, and O'Brien requested that he
weren't union men. . . he told me he wanted to make move it a little further, since traffic was backing up and the
the other people coming in aware of that problem. location of Bonesz' car was still creating entry problems for
Hertz buses. Bonesz refused to move his car any further,
stating that O'Brien should call the police if she wanted it
Respondent continued its picketing at the Hertz entrance moved. O'Brien called the police, and Bonesz' car was
gate after Bettini left. 8 moved across the road facing the Hertz entrance gate, and
the sign was placed in the front windshield. O'Brien also
3. The December 1976 and January 1977 picketing testified that she noticed Respondent's agents at the en-
trance gate the next day, December 28.9
The evidence reveals that on three of four occasions in On two or three occasions during the December picket-
late December 1976 Respondent's agents, Bonesz, Wesley, ing, Bonesz photographed or appeared to photograph
and Workman, picketed and handbilled at the entrance Hertz employees and customers entering the Hertz facility
gate of the Hertz facility at O'Hare. On or about December through the entrance gate. On one day he did this the en-
22, 1976, Respondent's agents arrived at Hertz about 10 tire day, photographing a Hertz courtesy busdriver who
a.m. and parked two automobiles at the entrance gate: the was transporting customers as well as the customers them-
car belonging to Wesley was parked about 5 feet east of the selves. According to O'Brien, on one day he also raised a
entrance gate, and the car belonging to Bonesz was parked camera pointed to her as she approached the entrance gate
just west of the entrance gate. Bonesz' car had a sign post- and appeared to be taking her picture.
ed on its side window, and Wesley's car had a sign posted On January 24, 1977, Hertz established reserved gates at
on its front windshield. These signs were placed so they its O'Hare facility and posted signs so designating its gates.
were visible to all individuals entering the Hertz lot and The sign at the entrance gate stated that the gate was to be
bore the following language: used by Hertz customers, employees, and vendors and not
ALLIED SECURITY by Allied and its employees. The sign at the exit gate stated
that this gate was to be used for Allied and its employees.
Since that date, Allied employees have used only the exitGuards employed by the above company are not gate at Hertz facility
being paid the prevailing area standard. Our only dis- gate at Hertz facility.betg paidw the prevailing area standard. Our only dis- Respondent's agent, Bonesz, testified that he appeared at
pute is with the above company. We have no dispute the Hertz entrance gate on at least five occasions in Janu-
ation isth appny other employer at this location. Your cooper- ary 1977. On these occasions Respondent's agents parked
their cars and displayed their signs in the same manner as
General Services Employees Union they had in late December.
Local 73 On January 26, 1977, Respondent's agents returned,
SEIU AFL-CIO parked their cars, and displayed their signs at the entrance
gate. They also passed out leaflets and "milled around" theThe cars remained parked at the entrance gate for 3 or 4
hours, and Respondent's agents alternated sitting in entrance gate. At no time on January 26 did the agents
Wesley's car and getting out of the car to hand leaflets to appear at the exit gate. There was no picketing between
Hertz customers entering the Hertz lot. Respondent's January 26 and March 16, 1977, when Respondent's agents
Hertz customers entering the Hertz lot. Respondent's again appeared at the Hertz facility at the exit gate. o-
agents returned to the Hertz facility at approximately I
p.m. on December 23, 1976, and stationed their cars and Bosncsz testimony is not substantially different from that of O'Brien. To
the extent there is an inconsistency between O'Brien's and Bonesz' accounts
S The above is based on the testimony of O'Brien and Beitinl. sshom I of the conversation. I credit O'Brien. She recalled the specifics of the con-
have found to be reliable and candid witnesses. O'Brien's testimonN regard- versation and candidly stated that Bonesz voluntarily moved his car a few
ing the phone conversations with Loewenberg and Bonesz stands uncontra- feet. On the other hand. Bonesz admitted he dicd not recall the conversation,
dicted. LaGrone did deny and contradict certain aspects of their testimony. denied any voluntary action on his part, and exhibited a clear hostility
However. I found his testimony not to have been as specific or as candid as toward O'Brien. stating, "I think her idea of moving the cars was some place
that of Bettini and O'Brien and, as I have indicated before. I did not find around Central and Madison."
I aGrone to be a credible witness. 0 Respondent's witnesses Wesley and Piecos testified that the) last ap-
302
GENERAL SERVICE EMPLOYEES UNION LOCAL 73
IV DISCt SSION ANI) ANAL.YSIS
Section 8(b)(4)(i) and (ii)(B) of the Act essentially pro-
hibits inducement of neutral persons to stop work and re-
straint or coercion of neutral persons with the object of
forcing a cessation of business between a neutral and one
with whom the offending union has a dispute.
These provisions reflect "the dual congressional ob-
jective of preserving the right of labor organizations to
bring pressure to bear on offending employers in pri-
mary labor disputes and of shielding unoffending em-
ployers and others from pressures in controversies not
their own." N. L. R. B. v. Denver Building and (Construe-
lion Trades Council, 341 U.S. 675, 692. Thus, a union is
permitted to picket a primary employer with whom it
has a labor dispute but runs afoul of Section 8(b)(4) if
it pickets or threatens to picket a neutral employer
with a proscribed object of enmeshing the neutral
employer in a controversy not its own.
It is unnecessars ito find that the so, hobject of picketittg 1s unI;:ti-
ful; an unlawful object is enough. A L.R B I D)nivr Buddlirn .il
(C ontruclion Irades ( ,ou.til, 341 t.S. 67. 688 (t89: ; L R?.B I .lA
DrietIe & DairL Liplp )t'uc I1, ,o1 l f , t i ,i 5s4. /IBf 10hl lit h,
Farmns. Inc]. 341 F.1 2d 29. 32 (( A 21. cert denired 382 t S Xlh1
h I. R B. . MilA Brgon Drivers' I in / 5 t /Pit re l//A 1 s, tO
rion]/. 355 F.2d 326, 329 (( A 71: ,S n iorA Wfle,', f ,t,t %,, 6I
[A'te York lierald 7rlbunt. hi,] S . 1 R H. 310 i Id 371. t72
(C-A. )D.C.)
General Teamsters, Warehousenmen and Dair AEnmplolvees
Union Local 126, affiliated wirth the International Brother-
hood of Teamsters, Chauffeurs, Warehousenien and HItelpers
of America, el al. (Ready Mixed Concrete. Inc.), 200 NI RB
253, 254 (1972).
The General Counsel asserts that Loewenberg's state-
ment to Braniff's representative Ruppel in January 1977
was a threat to picket and thus violative of Section
8(b)(4)(ii)(B) of the Act and that the subsequent picketing
of Braniff's terminal at O'Hare airport was both an induce-
ment and coercion and thus violated subsections (i) and (ii)
of Section 8(b)(4)(B). The General Counsel draws on back-
ground and other evidence to show that the primary dis-
pute herein was between Respondent and Andy Frain and
that it was essentially a dispute whereby Respondent
sought recognition as the representative of Andy Frain em-
ployees at a time when Andy Frain recognized another
peared at the Hiertz fjililt a.nd u lent ti the cxlt i[le III Ji.,lIIr. 197 " .IId nl, l
in March Hlowever. I do noll credit their testinoltis For esClllple. \c,\lc
teslified and Piecos agreed -that he spoke oii ar ullidentified plhtIe 'ftlcer
who limited his picketing at the cxit gate. 'et he adilitted he did n1t CepIlrt
this alleged encounter to Respondent's altornrit. ae. he norlt.llx tih c s hCii
he has a confrontationl with the police Fiert7 official (O'Brien testified ihIit
she saw Respondent's agents at the exil Late in Ma.rch 16 ter tleilitlln nII
the whole was motre credible Ilthan that of SSeshles and Ple,,i .iand sihe ilalde
a contemporanenous notiatlon f Ihe d.ate She also Itctiflld that ihelc ;.. a.
female guard on duti for Allied )in thai dal, She u. i cortlhurc.lel d bh
documentary esidence thait Ihere was nto x mian enipl, cc of i.licd oirk-
mig at the hertz facility during the ucek oif Januarir 26 at the tinte RKespol-
dent's agertis were allegedls .t the csit eatte I hi, refute, tihe eltillloti of
Wesle) that a woma;n gualrd Uas presitt (oil tie lat dat.le thl.l RespIlidei
appeared at the Hiert. facilits and confirmt that the date u,. \. li,.h It. a
O'Brien testified
union as representative of these employees. The General
Counsel thus asserts that an object of the pressures placed
upon Braniff was to force a cessation of business with
Andy Frain and recognition of it by Andv Frain. The G(en-
eral Counsel also alleges that Respondent violated Section
8(b)(4li) and (ii)(B) by picketing at the entrance gate of
Hertz, a neutral employer, in December 1976 and January
1977 with an object of forcing a cessation of business be-
tween Hertz and Allied and obtaining recognition from
Allied. For the reasons set forth below. I find that a pre-
ponderance of the evidence herein supports the complaint
allegations.
A. The Braniff Incidents
As I have found, the credited testimony shows that Re-
spondent's agent Loewenberg told Ruppel, the representa-
tive of a neutral with whom Respondent had no dispute,
that if Braniff contracted with Andy Frain "we are going
to picket Braniff." Such threats to picket a neutral are vio-
lative of Section 8(b)(4(ii)(B) if an object is unlawful. See
General 7Teamsters, W/arehouse and Dairy Employees Union,
Local 126 (Ready Miled Concrete. Inc,), supra at fn. 2.
An object of the threat was clearly an effort to force a
cessation of business between Braniff and Andy Frain. The
evidence shows that Respondent has long sought to repre-
sent Andv Frain's airport employees. The threat to Braniff
did not state the picketing would be limited to Andv Frain
or its operations. The threat also came shortly after Braniff
had announced its intention to cease using Guardsmark, a
firm swhich had a contract with Respondent to conduct
passenger screening services. and instead to use And)
Frain, whose employees were not represented by Respon-
dent. l.oewenberg admittedly asked Ruppel to hold off us-
ing Andy Frain until an alleged licensing dispute was re-
solved. lie also implored Ruppel to cooperate with him as
other airlines had done. In this context, cooperation could
only mean interference with the business relationship be-
tween Braniff and Andy Frain. Accordingly, whatever the
nature of the primary dispute between Respondent and
And' Frain, Respondent's object was to force Braniff., a
neutral. to cease doing business with Andy Frain in order
to further Respondent's dispute with Andy Frain."
I now turn to the May and June 1977 activity by Re-
spondent's agents at the Braniff ticket counter at O'Hare
airport. The evidence shows that Respondent's agents dis-
played placards on their bodies and patrolled the area in
front of the ticket counters. The General Counsel alleges
that this activity was picketing and thus an unlawful in-
ducement and coercion under subsections fi) and (ii) of
Section 8(4)(B). Because the agents also distributed leaflets
on these occasions. Respondent contends that this was
leafleting rather than picketing and that the purpose of the
placards was to distinguish the Respondent's agents from
4I he ;d1o .I rIdIte I1h x1111 s i tII uiIihJ el eof CasIe I ( ( 9631 a, scl
tIcd h icreeeileni iof lil pot iic, I lie etctlement agreme ntt pror tiled Ihat
Rc'lpoldlenr t oiuld nlolt threlln,. coercr . or re'tr;aln ain person In Niolatlon
if St,. (hH)(4)) hi, i .er. e the sciele niilt ..s set alide bh the Regiional
D)clolll.r hen til h (Ocnie.l] (i ,Oll zc] lcN td il shseqtien: soniplallni III \Ccl
If [I\ dilxp tltl(!11 Of tile Llhd I l]C [ lonpiplint illegations sxIhillch i effect
coin lield .a hleacth of the igrecrtient I find thit Ihc selemtient .aCreecn ii
atIs pr,i~crlx set aildc
303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other groups soliciting at the airport. Respondent relies on
Teamsters, Local Union No. 688, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Levitz Furniture Company of Missouri.
Inc.), 205 NLRB 1131, 1133 (1973), where the Board found
that the distribution of handbills in the circumstances of
that case did not constitute picketing within the meaning of
Section 8(b)(7)(C).
I find Levitz distinghishable, and I also find that the
facts herein show that Respondent's agents were picketing
at Braniff's ticket counter. Here. unlike the case in Levitz,
the evidence shows that Respondent's agents patrolled the
site with signs. Moreover, Loewenberg had threatened to
picket Braniff, and the neutral parties regarded the con-
duct at the airport as picketing. It is clear from the testi-
mony as well as photographs received into evidence that
the two agents patrolled the area at times when they were
not also handbilling. It is thus obvious that their presence
operated as the type of signal "which provokes responses
without inquiry into the ideas being disseminated and dis-
tinguishes picketing from other forms of communication
and makes it subject to restrictive regulation." Levitz, su-
pra, 205 NLRB at 1133. See also Local 182, Teamsters.
Chauffeurs, Warehousemen and Helpers of America (Wood-
ward Motors, Inc.), 135 NLRB 851, 857 (1962) (presence of
union agents in parked cars with signs in snowbank; no
patrolling). Since picketing is both an inducement of indi-
viduals and coercion, such picketing as occurred here vio-
lated Section 8(b)(4)(i) and (ii)(B) if an object thereof was
unlawful. See Ready Mix Concrete, supra, 200 NLRB 254,
fn. 6.
I also find that the picketing at the ticket counter of
Braniff was undertaken for an unlawful object. First, the
background evidence shows a primary dispute with Andy
Frain. There was an unlawful threat to picket Braniff in
circumstances which indicated that the object was to cause
a cessation of business between Braniff and Andy Frain. It
is reasonable to infer that the subsequent picketing itself
had the same object, particularly since the licensing dispute
which had allegedly concerned Respondent earlier was re-
solved. This inference is strengthened by the locus of the
picketing. There was no picketing at the main office of
Andy Frain. See Ready Mix Concrete, 200 NLRB at 255
256, fn. 10. Moreover, evidentiary guidelines established
for proper primary picketing at secondary or common situs
locations requires, inter alia, that the picketing clearly dis-
close that the dispute is with the primary employer and be
limited reasonably close to the location of the primary at
the site.'2 Neither of these tests under the Moore Dry, Dock
decision was met here. Until June 17, the picket signs were
addressed to patrons of Braniff, thus failing to clearly re-
strict the dispute to Andy Frain. Furthermore, the Andy
Frain employees were located at the Braniff departure
gate, far from where the picketing took place. There were
also Andy Frain employees one floor below in the baggage
claim area, but the picketing took place elsewhere. This
warrants the inferences that Respondent's efforts were di-
rected to Braniff, a neutral, rather than to Andy Frain, the
2 Suailrs' Union of the Pafll itlr.. r D D o)n A),, ( o . 92 Nl.RB 547
(195(1)
primary, and that these efforts had as at least one object a
cessation of business between Braniff and Andy Frain.
Respondent sought to escape the implications of its fail-
ure to picket near the Andy Frain employees by reference
to certain testimony that it attempted to picket at those
locations but was deterred by airport authorities.
Thus, Union agent Wesley testified that on June I he
stationed a picket at the Braniff departure gates where
Andy Frain employees worked. Wesley also testified that "
[a] representative from Northwest Orient . . ." said
something to one of the "leafletters." The "leafletter" re-
ported to Wesley that he was told he would be arrested if
he didn't move. Wesley, in turn, reported this to Attorney
Loewenberg, who told Wesley to position the man back at
the Braniff ticket counter. Respondent never returned to
the concourse area. Later in his testimony, Wesley stated
that a police officer had approached the "leafletter" at the
gate, although he admitted that he was not present there.
I do not credit Wesley's testimony as to what was said at
the departure gate. First of all, the testimony was in re-
sponse to leading questions and constituted hearsay. Re-
spondent failed to call the picket as a witness, and it did
not explain its failure to do so. Wesley's testimony is also
ambiguous. First, he testified that a representative from
Northwest Orient was involved; he later testified that it
was a police officer. The evidence is also ambiguous as to
what the "leafletters" were told they could or could not do
and what it was that the "leafletters" were doing that pro-
voked whatever occurred. Finally, Wesley's testimony is
uncorroborated in any respect. In these circumstances, and
in view of his unreliable testimony on other matters in this
case, I cannot accept Wesley's testimony as establishing
what took place at the departure gate.
Loewenberg also gave testimony, apparently to justify
Respondent's picketing at the Braniff ticket counter. Wes-
ley had testified that on May 31, 1977, a Sergeant Pribble
told him that pickets could not "wear placards" inside the
airport and that if they did so they would be arrested.
Loewenberg testified that in late May or June he received a
telephone call from Sergeant Pribble, who told Loewen-
berg that if Respondent's agents continued to leaflet and
"wear placards" they would be arrested. Loewenberg ob.
jected. claiming that he knew of a court decision which
held that only activity in the fingers of the concourse could
he prohibited. Later, Pribble called back and said that he
was going to allow Respondent's agents to conduct their
activity so long as they did not go into the concourse or the
fingers. Loewenberg promised to stay away from that area.
I do not accept Loewenberg's testimony that Respon-
dent was prohibited from picketing or handbilling at the
departure gate. Loewenberg's testimony is unclear as to the
date of his encounter with Pribble and particularly in spell-
ing out exactly where, in relation to Braniff's operation, the
conduct was prohibited. These ambiguities could have
been resolved if Respondent had called Pribble. That it did
not leaves the matter sufficiently in doubt that I must reject
Respondent's contention that it was prohibited from pick-
eting at the departure gate.
In any event, even if Loewenberg and Wesley's testi-
mony is accepted, it does not refute a secondary object.
Although Loewenberg's testimony is not entirely clear, I do
304
GENERAL SERVICE EMPtOYEES UNION LOCAL 73
not believe it establishes a prohibition against picketing the
departure gate. Braniff. unlike the other airlines, uses the
"gate plan" instead of the concourse plan in screening pas-
sengers. Under the gate plan. the members of the public go
unobstructed to the Braniff departure gates, where the
screening is performed. This is unlike the "concourse
plan," where the screening is performed at the head of the
concourse, resulting in a "sterile concourse." Thus. it ap-
pears that the public, including Respondent's agents. were
free to approach a point closer to Andy Frain's operation
at the Braniff departure gate. The testimony of Wesley and
Loewenberg simply shows Respondent's lack of interest in
limiting the secondary effects of its picketing. When con-
fronted with an objection to picketing at the departure gate
where the Andy Frain employees worked, Respondent
readily withdrew the pickets; however, when confronted
with Pribble's apparent objections to picketing anywhere.
the Respondent insisted on its right to picket at Braniff's
ticket counter and made no effort to assert a right to picket
at the departure gate, even though the public was appar-
ently permitted to approach the area. Moreover, there is no
evidence that Respondent was restricted Irom picketing the
baggage claim area downstairs from the Braniff ticket
counter, which is not in the concourse area, but where
Andy Frain employees do work. Yet Respondent made no
effort to picket at this location. In these circumstances, I
must reject Respondent's explanations concerning the lo-
cation of its picketing.
Respondent also contends that its conduct cannot be
violative of Section 8(b)(4) because Braniff and Andy
Frain were joint or coemployers and thus it could picket
Braniff as a primary employer. In certain situations where
one employer becomes the ally of the primary employer,
most notably by performing its struck work or where the
operations of the secondary employer are so intertwined
with those of the primary that they are essentially a single
employer, a union is provided a defense to application of
the literal language of Section 8(b)(4)(B). See Local 282,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Acme Concrete & Supply
Corp.), 137 NLRB 1321 (1962). There is no issue of struck
work here, but there was evidence taken concerning the
relationship between Braniff and Andy Frain. I find the
evidence insufficient to show a joint employer relationship
or any relationship which would impair Braniff's status as
a neutral in Respondent's dispute with And)y Frain.
In determining whether a joint employer relationship ex-
ists, the Board will consider all relevant circumstances, par-
ticularly the following factors: (I) interrelation of opera-
tions; (2) centralized control of labor relations; (3)
common management; and (4) common ownership or fi-
nancial control. See, for example, Cabot Corporation et al.,
223 NLRB 1388 (1976), enfd. sub nom International Chemi-
cal Workers Union Local 483 v. N.L.R.B., 561 F.2d 253
(C.A.D.C., 1977). Cowles Communications. Inc., and Sufsun
Co., Inc., 170 NLRB 1596, 1599 (1968).
The evidence shows no common ownership or financial
control between the two firms. And)' Frain is owned by six
members of the Frain family, none of whom owns any part
of Braniff. There are no common officers. Nor is there any
evidence of centralized control of labor relations or com-
mon management. Each company has its own supervisory
staff. and neither plays any part in determining the labor
relations, wage, or hiring policies of the other. The head-
quarters of each firm is in a different location, and the
firms are in wholly different businesses. The wages, hours.
and working conditions of the Andy Frain airport employ-
ees are governed by the collective-bargaining agreement
between l.ocal 236 and Andy Frain which covers these em-
plo ees.
Respondent focuses on the interrelationship of opera-
tions of the two firms at the airport. However, the evidence
is insufficient to show that the relationship rises to a joint
emplover status or that the firms are so intertwined that a
strike against one is to be considered a strike against both.
lhis evidence does not show that the firms have anything
but a typical contractual relationship.
Braniff is required to provide passenger screening proce-
dures by the Federal Aviation Administration. the FAA
does not prescribe which contractor the airline must use,
hut the security program must be approved by the FAA.
Braniff does not have any staff which is involved solely in
security work. There is an FAA security officer at O'Hare
Airport whose responsibility it is to see that all the airlines
comply with the security regulation.
Andy Frain employs between 1,000 and 1,300 employ-
ees. only 25 to 30 of whom provide services to Braniff.
And)' Frain has been performing baggage claim check ser-
vices for Braniff since 1975, and in 1977 it began to provide
passenger screening services for Braniff. Pursuant to a con-
tractual arrangement between Andy Frain and Braniff,
Andy Frain provides inspectors to conduct the predepar-
ture screening of Braniff passengers. The number of in-
spectors, posts, locations, and hours of duty are agreed
upon by the parties as determined by Braniff to meet its
requirement. Andy Frain is responsible, at all times, for the
courteous conduct, appearance. and demeanor of its em-
ployees. The agreement specifically provides that the in-
spectors shall be exclusively employees of Andy Frain. an
independent contractor, and that Andy Frain will pay all
salaries and expenses of the employees, including Federal
Social Security taxes and Federal and state unemployment
taxes. Andy Frain is also required to maintain workmen's
compensation insurance for its employees. While Braniff
reserves the contractual right to request Andy Frain to re-
move employees from service, it has never actually done
so: nor has Braniff issued any directives or memorandums
to Andy Frain. The actual duties of Andy Frain employees
are guided by certain standard rules set forth in an appen-
dix to the agreement. The standards refer to appearance
and the good character required of Andy Frain employees.
They require uniforms and express an intolerance for late-
ness. Andy F[rain has the responsibility for providing re-
placements. Training is to be provided by Andy Frain, and
copies of the training program are to be submitted to Bran-
iff for its approval. Andy Frain's employees perform their
passenger screening services in an area that is leased by
Braniff and use equipment which is owned by Braniff.
Braniff does not supervise the Andy Frain employees but
merely observes the operation occasionally to insure that
Andy Frain is complying with its agreement and with the
security program.
305
I)'LCISIONS OF NAI IONAL LABOR RELATIONS BOARD
I'hc evidence set forth above shows that the realtionship
between Andy Frain and Braniff is simpl a contractual
one. The employees of Andy Frain are independent from
control by Braniff or Braniff officials. The only purpose for
Braniff officials observing Andy Frain employees is to see
that Braniff's contractual agreement with Andy Frain is
being followed. Indeed, the contract between Braniff and
Andy Frain specifies that Andy Frain is an independent
contractor and the employer of the airport employees. I'he
evidence confirms this status.'3 In sum, Andy Frain is a
person and an employer separate and apart from Braniff,
and Respondent may not extend its primary dispute with
Andy Frain to Braniff.
In its brief Respondent objected to my refusal at the
hearing to grant a continuance to enforce its subpena to a
witness, one Guerin, a representative of another security
agency in Chicago. According to Respondent, (iuerin's tes-
timony would have established Braniff as an ally of Andy
Frain, and it made an offer of proof of certain evidence
allegedly to that end. I indicated that I would not grant a
continuance to hear the testimony of Guerin. who appar-
ently had not answered the subpena, because, in my view,
his testimony was not relevant to the issues in this case.
Later Guerin did make himself available, but said he could
not testify before talking with his attorney. Respondent's
attorney stated on the record that he released Guerin be-
cause the matter "had been disposed of" by my ruling that
the evidence would not be received.
I reaffirm my ruling that Respondent's proffered evi-
dence is not relevant to an asserted ally or joint employer
defense. Respondent made an offer of proof that Guerin's
employer had a labor agreement with Respondent and that
he approached an unnamed official of Braniff to attempt
to obtain a contract to perform security screening services
for Braniff. It is alleged that this Braniff official stated that
under no circumstances would Braniff do business with
any security agency which had a labor contract with Re-
spondent and that Guerin was free to tell the world about
this. Such evidence does not tend to show the type of inter-
relationship which the Board has recognized in either the
ally or the single-employer doctrine. Respondent has cited
no cases which would require a holding on the proffered
evidence that Braniff so aligned itself with Andy Frain as
to permit them to be considered a single entity for the
purpose of Section 8(b)(4), and I reject such a contention.
I have also considered the application of N.L.R.B. v.
Fruit & Vegetable Packers & Warehousemen, Local 760
[Tree Fruits Labor Relations Committee], 377 U.S. 58
(1966), to the Braniff picketing. In that case, the Supreme
Court held that Congress did not, in Section 8(b)(4)(ii)(B).
intend to prohibit all secondary consumer picketing but
only to forbid picketing to prevent all trading with the sec-
ondary. I find that the Tree Fruits exception does not apply
to the circumstances of this case. The picketing of Braniff
could in no way be characterized as limited to persuading
customers of Braniff not to purchase a struck product, as
opposed to an effort to completely boycott Braniff. I'he
l See ('arpet, l inoleum, Soft 7l and Rew/hent F: oor (' ocrintg La;lctl I /,
cal Union No. 419 v N.I R.B, 467 F.12d 392, 405 (D. ('. ('ir 1972): (i,d,,
( orporaillon .lspra
evidence the location of the picketing and the broad
threat to Ruppel clearly shows that the picketing was
"designed to inflict injury on the secondary employer's
business generally, for an object of forcing or requiring the
secondary employer to cease doing business with the pri-
mary employer. ..." International Union of ()perating En-
gincers. Local N'o. 139, AFL-CIO (Oak (Construction, Inc..
226 NI.RB 759 (1976).14
B. 771e Hert. Incidents
I find that the conduct of Respondent's agents at the
llertz location in December 1976 and January 1977 consti-
tuted picketing. T wo or three agents walked about the
Hertz entrance passing out leaflets protesting Respondent's
dispute with Allied. Signs publicizing this dispute were
clearly visible on the windows of two of the agents' cars
parked at either side of the entrance. On two occasions.
one of the agents acted as if he were photographing neu-
trals passing through the entrance. This activity was car-
ried out in the context of earlier incidents, in September
1976. of actual picketing. In these circumstances. I find
that the conduct of Respondent's agents constituted pick-
eting and thus came within the proscription of subsections
(i) and (ii) of Section 8(b)(4). See Lumher and Sawmill
i orker.s I.ocal Union No. 2797 (Stoltze land & I.umber
('onlpantv). 156 NILRB 388, 394 (1965).
I he next question to he considered is whether an object
of the picketing was secondary, i.e., to cause a cessation of
business between Hertz., the neutral, and Allied, the firm
with whom Respondent has a primary dispute, within the
meaning of subsection (B) of Section 8(b)(4).
I find that the Respondent's conduct at Hertz was for an
unlawful object. First of all, the background evidence, in-
cluding the earlier picketing of Hertz in September 1976,
shows that Respondent was intent on enmeshing neutrals
in its dispute with Allied. Second, the activity was not lim-
ited to a location near the primary, thus indicating a sec-
ondary object under the Moore Dry Dock rules. And third,
in conjunction with the picketing, Respondent's agents
photographed employees and customers of a neutral
Hertz as they crossed the picket line.
In September 1976. Respondent's agent LaGrone ap-
proached Hertz official O'Brien and told her about possi-
ble picketing-which later eventuated---and the Respon-
dent's dispute with Allied. He then told her there were
about 80 security firms that met area standards in the
phone book. The import of this statement was obvious:
Hertz, a neutral, was to stop using Allied and utilize a
guard service more favorable to Respondent. Moreover,
the September picketing, which took place at the Hertz
entrance gate, actually resulted in the interference of deliv-
eries to Hertz by a neutral truck driver. Indeed, as early as
April 1973, Union Representative Kurasch stated that Re-
spondent's general practice was to picket the "clients" of
unfavored employers. This evidence of unlawful object is
'1 Since I cainnilt colcllude thatl the sole object of ihe plcketing herein was
to adcanlice n1 area standalds dispute with Andc [:rn In a primnary was
(,cc itl-il. Sec I 111.1) I alsot conclude that Ixioal i'nio9n (99, IUnied Brither
,d C (1,' o.pniers and Jinnct of Imleria .4i F, (' ( (A & A C(onirwution
( oIn( ) 233 NLiRB 718 1977). is distinguishable
306
GENERAL SERVICE EMPLOYEES UNION LOCAL. 73
buttressed by the location of Respondents actual picketing
of Hertz later in December. The picketing was at the Hertz
entrance gate used by Hertz customers and employees. The
gate was at a considerable distance from the location of the
Allied guard on the Hertz premises and a legitimate site at
which Respondent could have publicized its primary dis-
pute without enmeshing neutrals.
Indeed, Respondent's agents were present at the en-
trance gate even after Hertz. placed signs designating the
entrance gate for Hertz employees and customers and the
exit gate for Allied employees. That it continued to picket
at the entrance gate after Respondent's agents knew the
location of the Allied guard station shows that the Respon-
dent deliberately chose a site where its impact would be
solely on neutrals. In view of LaGrone's earlier statement
to O'Brien, it is obvious that Respondent sought the re-
moval of Allied and the substitution of a more favored
employer. The evidence clearly shows an unlawful cessa-
tion-of-business object under Section 8(b)(4)(B) and it is
reasonable to infer that the December and January picket-
ing-which took place at the same Icoation had the same
object.
In an apparent reliance upon Local 761 International
Union of Electrical Radio & .Machine Workeri. .4 FI-( 10
[General Electric Companlia v. N.L.R.B., 366 IU.S. 677
(1961), Respondent argues that the exit gage was not truls
a reserved gate after January 24. 1977, because Hertz cus-
tomers also used the gate to leave the Hertz facility. Re-
spondent misperceives the significance of the reserved gate
in this case and misapplies the General Electric case. In
General Electric. the Supreme Court held that despite the
fact that a struck primary employer sets up a reserved gate
on his premises for use by neutrals. a union may lawfully
picket that gate in certain circumstances. One such circunm-
stance is where the use of the reserved gate is mingled hb
use of a primary or a neutral who performed work neces-
sary to the normal operations of the primary. Here, as was
not the case in (;eneral Elh'ctri both Htertz gates were at
the site of the neutral employer with whom the Respondent
had no dispute, and, since both primary and secondary
employers were present, the Moore D)ri l)oc rules go,-
erning common situs picketing apply. Moveover, Respon-
dent relies on the alleged mingled use of the exit gate, not
the gate which was reserved for neutrals. There is no evi-
dence that employees of Allied, the primars, used the en-
trance gate which Respondent did picket and which was
reserved for neutrals. Thus, Respondent made no effort to
limit its appeal to the primary employer even after its
agents knew that there was a gate reserved for use b, the
primary. The inference is justifiable that Respondent did
this in order to cause Hertz to put pressure on Allied.
Respondent also argues, based on the testimonv of Pie-
cos and Wesley, that on January 26, 2 days after the re-
served gate signs were posted, Respondent sought to picket
at the exit gate reserved for Allied but was precluded from
doing so because a police officer stopped them. According
to Respondent, this was the last day its agents appeared at
the Hertz facility and the only day the' appeared at the
exit gate. Of course this argument fails, because I haie
discredited the testimony that these exents took place on
January 26. Rather. I credit O'Brien that these events took
place on March 16 and that the Respondent's agents pick-
eted at the entrance gate which was at that time marked for
Hertz all(ie on January 26 and on that date made no effort
to picket the exit gate reserved for Allied. Thus. according
to the credited testimony. Respondent's agents appeared
twice at the Hertz facility after January 24. Moreover, I
have discredited the testimony of Wesley that he spoke to a
police officer who limited his picketing at the exit gate on
January 26. In addition, Respondent never mentioned this
alleged limitation to Hertz officials as a possible justifica-
tion for picketing at the entrance gate.
Respondent's picketing after January 24. like its earlier
picketing. took place at a location far from the known situs
of the primary, thus indicating Respondent's total lack of
interest in making a primary appeal. What is significant
ahbout the picketing in late January is that there was a for-
mral notice that the entrance gate uwas reserved for neutrals
and yet Respondet's agents again picketed at the en-
trance. Such ai disregard for a gate reserved for neutrals is
the strongest possible evidence of unlawful object.
Paragraph IX(b) of the complaint alleges that on De-
cember 27 and 28 Respondent's agent, Bonesz, acted as if
he were taking pictures of neutrals crossing the picket line
at the entrance gate of lertz' facility. The General Counsel
also alleges that such conduct was for an unlawful object
and thus constitutes a separate violation of Section 8(b)(4).
TIhe basic evidence on this issue is not seriously in dis-
putte. Bonesz on seeral occasions in late December point-
ed a camera at a Hertz driver, Hertz official O'Bnen. and
Hertz customers as they were entering the Hertz facility
past the picketers. Hie used a movie film on one day and a
still camera on the other. There was no film in the cameras.
The General Counsel alleges that such conduct is inherent-
Is coercive. citing a numbter of cases. most of which involve
a union's photographing eimployees crossing a picket line,
which has been found to constitute a violation of Section
8(h)( 1 )(A)
I find that photographing of neutrals had an object of
stopping neutrals from crossing the picket line and stop-
ping Ilertz from doing business with Allied. While there is
the suggestion in the record that Bonesz used cameras as a
retaliation against the use by Hertz employees of camera,
to photograph the picketers, this reason does not really
explain Respondent's actions. The Hertz employees used a
camera to obtain cxidence of activity which was later
charged to be unlawful, and such evidence was introduced
in this proceeding. More important, perhaps. Bonesz ad-
mittedly had no film in his cimerai,, thus negating any
legitimnte purpose for the activity. TIhe act of photograph-
ngt! neutrals crossing a picket line has the reasonable ten-
dencs to lead neutral persons to believe that photographs
ma) he used in some was, to retaliate against them for
crossing the picket line and doing business with another
neutral here. Iertz. 'I'his is inherently coercixe and inhi-
hits not only the customers but necessarily the neutrtal
lcrtz. Boniesz also pointed his camera toward O'Brien. a
direct approach to a neutral emplover. Fhe activlts took
place at a location utilized hby neutrals and had no possible
relationship with Allied except that it tended to cause an
interference in the business relationship between Hertz and
Allied. an unlau ful object. It is no answer that the use to
307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the photographs may be put is not immediately ap-
parent to the neutrals, for this very ambiguity tends to
coerce and to inhibit the business relationship in a manner
which the Act proscribes. This analysis applies as well to
the employee of the neutral, the Hertz driver. Even though
she was not induced by the cameras to refuse to cross the
line, it is not necessary that an inducement directed at a
neutral employee be successful to be proscribed.
In these circumstances, I find that Respondent's use of a
camera in December 1976 to photograph or apparently
photograph neutral persons crossing the picket line con-
firmed the illegal object of the picketing and was itself vio-
lative of Section 8(b)(4)(i) and (ii)(B).
C. The Recognitional Object
The General Counsel alleges that Respondent also vio-
lated the Act because another object of its appeal to the
secondaries-Braniff and Hertz--was to have them require
"any other employer"-Allied and Andy Frain--"to rec-
ognize or bargain with a labor organization as the repre-
sentative of his employees unless such labor organization
has been certified .... " Although application of this pro-
vision requires some inquiry into the nature of the primary
dispute, it does provide an additional basis for violation of
Section 8(b)(4)(B). See Retail Clerks Union Local 770, Re-
tail Clerks International Association, AFL CIO [United
States Hardware and Paper Company, Wesco Merchandise
Company, and Food Employers Council, Inc., Intervenors] v.
N.L.R.B., 296 F.2d 368, 374-375 (D.C. Cir. 1961)."5
I find that the Union's recognitional object is established
by the record evidence. Since May 1972, Respondent has
sought recognition of the Allied employees. Its agents at-
tempted to obtain a contract with Allied, indicating that
those employers who refused to sign contracts would be
subjected to picketing. In September 1976, when Respon-
dent first picketed at the Hertz facility, Attorney Loewen-
berg told a Hertz official that Knight Patrol, another guard
service, was "coming in to work things out" but Allied was
not; and LaGrone stated that Respondent was interested
in new members. LaGrone also told a Hertz official that
Hertz' problem was with Allied, whose men were not
"union men or brothers." As to the And), Frain dispute,
the evidence shows that on numerous occasions, beginning
in August 1975, Respondent insisted that Andy Frain rec-
ognize it as bargaining representative of employees it knew
were represented by a sister local. In neither case was Re-
spondent certified as representative of the employees it
sought to represent.
Respondent objects to the admission and consideration
of certain background evidence in both Allied and Andy
Frain matters-much of it having to do with establishing a
recognitional object-on the grounds that the events oc-
curred beyond the 6-month statutory limitations period set
forth in Section 10(b) of the Act. It also alleges that some
i Before the 1959 amendments. Sec. 8(h)(4)(A) prohibited seiondll .a-
tivit) with a cease doing husiness object aind Sec. 8(b)(4tB) prohibitcd .e-
ondary activitl with a recognitional object the 1959 amendmentls added a
provision. Sec. 8(b)(7). dealing with recognitionail picketng ;and comlbined
the language of subsections (A) ;and (B) of 8 4)(4) Inll Sec 8(hl4)(4lB).
of this evidence was the subject of a "settled" case, 230
NLRB 351 (the case before Administrative Law Judge Ma-
loney), mentioned above. Neither objection is meritorious,
and I adhere to my ruling at the hearing that such evidence
is admissible and probative.
As to the first point, Section 10(b) bars complaints based
on untimely charges; it does not bar evidence. The evi-
dence was taken to shed light on specific conduct which
took place within the 10(b) period and which was properly
charged as a violation herein. Whether the evidence was
stale depends on whether intervening events made the ear-
lier evidence less probative; I find that it did not and that
Respondent's course of conduct over the entire period
from 1972 to the present is relevant to the matters litigated
herein, particularly the object of Respondent's conduct
and activities.
As to the second point, there is some doubt in my mind
as to whether the eairlier case involving 8(bX4) and 8(b)(7)
charges and, incidentially, the same secondary and primary
employers involved in this case, was actually a settlement.
If so, it was a peculiar type of settlement, because Respon-
dent withdrew its answer but, as the Board's decision
states, did not admit it had committed any unfair labor
practices. Thereafter, upon a motion for summary judg-
ment, the Board adopted findings that Respondent com-
mitted unfair labor practices and entered an agreed-upon
order. However, even assuming that the matter was settle-
ment, I conclude that there is no impediment to use of the
underlying evidence to shed light on the Respondent's ob-
ject in connection with violations alleged and litigated in
this case. See Northern California District Council of Hod-
carriers and Common Laborers of America, AFL-CIO, et al.
(Joseph's Landscaping Service), 154 NLRB 1384 (1965),
enfd. 389 F.2d 721 (9th Cir. 1968). This is true even where
the settlement agreement has not been formally set aside.
Local Union 613 International Brotherhood of Electric
Workers, AFL-CIO (M.H.E. Contracting, Inc.), 227 NLRB
1954, fn. 1 (1977).
D. Respondent's Area Standards Defense
Respondent alleges that its object in both the Andy
Frain and the alleged Allied cases was not the prohibited
objects set forth in 8(b)(4)(ii)(B) but rather a primary ob-
ject to protest so-called lower area standards, alleged non-
competitive wage and fringe benefits, of Andy Frain and
Allied. In order to succeed in rebutting the evidence I have
discussed above, which shows cease-doing-business and
recognitional objects, Respondent must show that the sole
and real object of its conduct was the primary protest of an
area standards dispute.t 6
Although there is some evidence that union representa-
tives, particularly Loewenberg, mentioned area standards
to Allied and Andy Frain representatives and the picket
signs identified the primary disputes as being area stan-
dards disputes, I am not persuaded that this was the sole or
, See L.o, l 0.i) Plllrluher. U!nited A .oIi' iion ol Journemien and Appren-
itt . ic It ' t i Plullnwg and Pipr Fitring I ndu lnt of the LU nited Slater and (Can
idta A iL ( 1). ei. o(Mte r Plimlbing. Inc . 187 NLRB 652. 657 (1970).
enfd 469 1: 2d 403 (7th ( ir 1972).
308
GENERAL SERVICE EMPLOYEES UNION LOCAL 73
even the real reason for Respondent's picketing of second-
ary employers.
First of all, whatever the nature of the primary disputes
with Allied and Andy Frain, Respondent's statements to
secondary employers clearly show that it sought to enforce
its primary disputes by causing a cessation of business be-
tween those primary employers and neutral secondary em-
ployers. This is buttressed by the location of the picketing
and the absence of any real evidence that Respondent was
making appeals to the primary employers at the location of
the primaries.
Furthermore, the trier of fact is not bound by the lan-
guage on the picket sign in assessing the real object of the
picketing." I find that the Respondent injected the area
standards language on the signs and in its letters and re-
marks to Allied and Andy Frain in an attempt to insulate
its threats and picketing from chargeable violations. Twice
before in Board proceedings its area standards defense to
unlawful conduct was rejected. Moreover, its area stan-
dards inquiries were first made in the midst of efforts to
obtain recognition. Thus, even after Respondent's May 3,
1976, area standards letter to Andy Frain. Respondent's
agents sought, in two separate meetings with Andy Frain
officials, to obtain a contract with Andy Frain. And in
Loewenberg's January 1977 threat to Ruppel there was no
mention of area standards. With respect to Allied. Respon-
dent's very first letter in 1972 requested recognition and
threatened to notify the public of Allied's failure to meet
"union standards." Subsequent conversations show a de-
termined effort to have Allied recognize Respondent. In-
deed, even after its specific "area standards" letter to Al-
lied, dated August 27, 1974, Respondent's agents had
conversations with Hertz officials in September 1976 clear-
ly showing Respondent's continued recognitional object.
Significantly, in December 1976, Respondent's agents
photographed employees and customers of Hertz, a neu-
tral, at the Hertz entrance gate. This was inconsistent with
a primary area standards objective. Thus, Respondent nev-
er clearly eschewed a recognitional object and has failed to
show that its only object in picketing the secondary em-
ployers was to force adherence by the primaries to area
standards.
In connection with its asserted area standards defense,
Respondent made two offers of proof. First, Respondent
offered to prove that Representative Bonesz would testify
that on November 8, 1976, he received a report from Rich-
ard Wesley, whom he directed to apply for a job with Al-
lied, that "Allied paid approximately the same hourly rate
of pay as the area standard except that the rate fluctuated
up and down according to different locations . . ." and
that Allied's benefits were different in other respects. The
second proffer was that Respondent's counsel, Loewen-
berg, would testify that if at any time after March 1977
Andy Frain had met area standards by improving its wages
and monetary fringes, Respondent would have engaged in
no further action against Andy Frain and that he men-
tioned this to the General Counsel's Regional Office per-
sonnel.
Although I excluded such evidence at the hearing, I
17 See N.L.R.B. v. International Brotherhood of Electrical WVoreris. Af I
CIO, Local 453. 432 F.2d 965. 969 (8th Cir 1970)
shall, for the purposes of this decision, assume that the
proffer constitutes evidence in this case. I note the hearsay
nature of the first proffer and the conclusionary nature of
the second. In these circumstances, the reliabiity of this
testimony is highly suspect, especially since I have discred-
ited witnesses Bonesz. Wesley, and Loewenberg at other
points in this decision. Nevertheless, I conclude that this
evidence would not establish that Respondent's sole object
in picketing Hertz and Braniff was to further a lawful and
primary area standards dispute.
As I have indicated, the evidence with respect to the
Allied dispute shows that since 1972 Respondent sought
recognition as the representative of Allied's employees, and
its picketing in September 1976 was accompanied by state-
ments clearly showing a cease-doing-business and a recog-
nitional object. It is a reasonable inference that Respon-
dent's December picketing was part and parcel of the same
conduct and that its objects were the same, particularly in
view of the location of the picketing and its photographing
of neutrals who crossed the picket line. Respondent argues
that since it obtained wage and benefit information from
Allied on November 8. prior to the December picketing, its
object in the December picketing must have been different
and solely for area standards, as its picket signs indicated.
Respondent also relies on a self-serving letter sent on No-
vember 8 to Allied renouncing a recognitional object. This
letter was sent pursuant to a provision in the agreed-upon
Board order in Administrative Law Judge Maloney's deci-
sion.' 8 This argument, which is essentially that, notwith-
standing earlier evidence of unlawful object, Respondent
changed its object solely to a benign one after November 8.
is unpersuasive.
There is no evidence that Respondent made any new
effort to notify Hertz that its purpose was not to interfere
with the Allied-Hertz business relationship, and it did not
take steps to keep its activity as close as possible to the site
of the primary dispute. Respondent did not, except briefly,
picket Allied at its situs. Moreover, Respondent's effort on
November 8 to obtain wage and benefit information from
Allied was not an indication of a change in position or
tactics. Respondent had requested such information in Au-
gust 1974. when it gave Allied 72 hours to respond or face
the prospect of picketing; and as early as May 30, 1972.
Respondent had threatened to publicize that Allied was
not meeting "union standards." On the contrary, the very
fact of an inquiry as late as November 1976 confirms that
earlier area standards pronouncements by Respondent
were made without foundation. There is no reason to be-
lieve that the events of November 8 meant that the earlier
unlawful objectives had been abandoned completely or
that there was a change in Respondent's objectives. Most
significantly, however, in December 1976-well after the
alleged change of position on November 8-Respondent's
agents photographed neutral employees of Hertz and its
1I After the close of the hearing, the Respondent moved to enter into
evidence a slipulation hetween it and Allied that on November 8. 1976.
Respondent sent Allied a letter as specified in Ihe decision of Administra-
\ive L.iaV Judge Maloney in 230 NLRB 351. 354. The General Counsel
opposed this motion. Because the matter is the subject of stipulation and
was related to compliance with requirements in an earlier decision. and In
the interests of a full record, I hereby grant the motion.
309
DECISIONS OF NAT IONAL I.ABOR RELATIONS BOARI)
customers, conduct completely inconsistent with the pub-
licizing of a lawful and primary area standards dispute.
The November 8 letter, of course, said nothing about Hertz
or the avoidance of a secondary cease-doing-business ob-
ject.
As to the Andy Frain Braniff dispute, the proffered evi-
dence is that Attorney Loewenberg would not have author-
ized the picketing if Andy Frain had complied with area
standards in March 1977. Of course, Loewenberg's conclu-
sionary testimony is, like the language on the picket sign,
self-serving and not entitled to great weight. His unlawful
threat to Ruppel of course occurred before his alleged
change of heart. Moreover, in Loewenberg's last conversa-
tion with Michael Frain, he sought recognition. There is no
evidence that Loewenberg made any effort to get in touch
with Frain to indicate a change of position: nor did he
attempt to neutralize his threat to Ruppel.
Thus, I must conclude that even though an object of
Respondent's conduct may have been to protect area stan-
dards, this was not the sole object of its conduct directed
toward Braniff and Hertz. and its object was certainly not
limited to primary appeals.
CONCi.USIONS 01 LAW
I. Andy Frain, Inc.. and Allied Security, Inc.. are, re-
spectively, an employer and a person engaged in com-
merce, or in an industry affecting commerce, within the
meaning of Section 2(2), (6), and (7) and Section 8(h)(4) of
the Act.
2. General Service Employees Union Local No. 73. affi-
liated with Service Employees International Union. AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening to picket, and picketing, Braniff Inter-
national Airlines with an object of forcing Braniff to cease
doing business with Andy Frain, Inc., and for the further
object of forcing Andy Frain, Inc., to bargain with Re-
spondent as the collective-bargaining representative of its
employees, Respondent violated Section 8(b)(4)(i) and
(ii)(B) of the Act.
4. By picketing the Hertz Corporation with an object of
forcing Hertz to cease doing business with Allied Security,
Inc., and for the further object of forcing Allied Security,
Inc., to bargain with Respondent as the collective-bargain-
ing representative of its employees, Respondent violated
Section 8(b)(4)i) and (ii)(B) of the Act.
5. The aforesaid unfair labor practices have a close, inti-
mate, and substantial effect on commerce and are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(b)(4)(i) and (ii)(B) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
The General Counsel urges that Respondent's conduct
herein, taken together with its past history, requires the
issuance of a broad order prohibiting not only unlawful
secondary activity directed to the secondary employers in
this case with regard to disputes with the primary em-
ployers in this case, but also such activity directed to all
secondaries with respect to all primaries. I agree with the
General Counsel that such a broad order is necessary and
effectuates the policies of the Act.
Such broad orders are required where the Respondent's
conduct, both in the record and in the past history of liti-
gated cases, warrants a finding that the Respondent has
shown a proclivit\ or a general scheme to violate the Act.i
I believe that such a finding is justified herein.
Respondent has been found to have violated Section
8(b)(4)(b) in an earlier case and it has been shown that,
despite the Board's recent findings of additional violations
of Section 8(b)(4)(B) and the agreement to entry of a nar-
row order in 230 NLRB 351, it continues to use secondary
methods to settle disputes. The instant case involved lenghty
picketingagainst two secondaries, photographingof neutrals,
and a threat to a neutral. This history shows a pro-
clivity to violate the secondary boycott provisions of the
Act. I also note that Respondent has twice before been
found to have violated Section 8(b)(7)(C) by improperly
picketing for recognition. an object of its conduct in the
instant case. Moreover, the facts in this case demonstrate
that the Respondent is bent on utilizing secondary pres-
sures in order to obtain a general goal, i.e.. the representa-
tion of all security personnel within its jurisdiction. For
example, the evidence in this case shows that Loewenberg
told a Braniff representative that other airlines had cooper-
ated with him, presumably in utilizing favored employers;
LaGrone told a Hertz representative that Respondent was
always interested in getting new members; Kurasch told an
Allied representative that Respondent's practice was to
picket the clients of firms which did not sign a contract and
"the) usually lose the business." In these circumstances it
is reasonable to anticipate future violations and it is neces-
sary to prohibit such unlawful conduct directed against all
persons in connection with disputes with any and all pn-
mary employers or persons.
In view of the scope and breadth of the Respondent's
activities and, because of this, of the Order, I also find it
necessary to insure that notice of Respondent's conduct
and the Board's remedy reach all interested and potentially
affected persons. I raditional notice posting at places where
employees of the parties involved herein or members of
Respondent congregate is insufficient to notify all potential
primaries and secondaries or members.20 I therefore will
recommend that Respondent publish the notice at its own
expense in a newspaper of general circulation in the Chica-
go area. See United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United
States and Canada, Local 428 AFL (Frank W. Hake), 112
NLRB 1097, 1102 (1955).
I lo i n tt, rolo,,,a Broliherhood u J El ctricl ar f orkerr, 1oeal 5)01, et a ISrniu-
/l I.aLyir] v. ; L.R B. 341 Ui.S. 694. 7(15 706 (1951): N L.R.B. v. Interna
riuorlo I otncm ' ()p erattng, tignin nere. I ,moa 571 [l.a e tie 1 st,5rln (u. ], 317
F.2d 638. 644 (8th (ir. 1963): .L. R B. v. loeal 282. Internatiional Brother
hdn cc ITnowern, (C hoffft;rrs, 14'archouenien, and c Helpers of Aicrida /S' S
lri( l, ig ( oyr . 428 : 2d 994. 999 (2d (Cir. 1970)
-(I here is testimony that Respondent has 18.000 members
310
GENERAL SERVICE EMPLOYEES UNION LOCAL 73
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case. and pursuant to
Section 10(c) of the Act. I hereby issue the following rec-
ommended:
ORDER 21
Respondent General Service Employees Union Local
No. 73, affiliated with Service Employees International
Union, AFL-CIO, Chicago, Illinois, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging individuals
employed by Braniff International Airlines or any other
individual employed by any person engaged in commerce
or in an industry affecting commerce to engage in, a strike
or a refusal in the course of their employment to use, man-
ufacture, process, transport, or otherwise handle or work
on any goods, articles, materials, or commodities or to per-
form any service; or threatening, coercing. or restraining
Braniff Internaional Airlines or any other person engaged
in commerce or in an industry affecting commerce, where
in either case an object thereof is forcing or requiring Bran-
iff International Airlines or any other person to cease us-
ing, selling, handling, transporting, or otherwise dealing in
the products of Andy Frain, Inc., or any other producer,
processor, or manufacturer or to cease doing business with
Andy Frain, Inc., or any other person, or forcing or requir-
ing Andy Frain, Inc., or any other employer to recognize
or bargain with Respondent as the representative of such
employees under the provisions of Section 9 of the Act.
(b) Engaging in, or inducing or encouraging individuals
employed by Hertz Corporation or any other individual
employed by any person engaged in commerce or in an
industry affecting commerce to engage in, a strike or a
refusal in the course of their employment to use, manufac-
ture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to per-
form any service; or threatening, corecing or restraining
21 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 pros vided in Sec
102.48 of the Rules and Regulations, be adopted b) the Board and become
its findings. conclusions, and Order. and all objections thereto shall he
deemed waived for all purposes.
Hertz Corporation or any other person engaged in com-
merce or in an industry affecting commerce, where in
either case an object thereof is forcing or requiring Hertz
Corporation or any other person to cease using, selling,
handling, transporting, or otherwise dealing in the prod-
ucts of Allied Security, Inc., or an) other producer, pro-
cessor or manufacturer, or to cease doing business with
Allied Security, Inc., or any other person. or forcing or
requiring Allied Security, Inc., or any other employer to
recognize or bargain with Respondent as the representative
of its employees unless such labor organization has been
certified as the representative of such employees under the
provisions of Section 9 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the act:
(a) Post at its business office and meeting halls copies of
the attached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Director for
Region 13. after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Deliver to the Regional Director for Region 13
signed copies of said notice for posting by Andy Frain,
Inc.. Allied Security, Inc., Braniff International Airlines,
and Hertz Corporation, if they are willing, at all locations
where said employers normally post notices to their em-
ployees.
(c) Publish, at its expense, the terms of the notice in a
form and size approved by the Regional Director for Re-
gion 13 in a daily newspaper of general circulation in the
Chicago, Illinois, area. Publication is to be made on 3 sepa-
rate days within a 3-week period at a time designated by
the Regional Director.
(d) Notify the Regional Director for Region 13. in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
: In the esenl that this Order is enforced hb a judgment of Ihe Uniled
States (Court of Appeals. the sords in the notice reading "Posted by Order
of the National Ilabor Relaions Board" shall read "Posted Pursuant to a
Judgment of the t nited States Court of Appeals Enforcing an Order of the
National Labor Relatins Board"
31 1