General Service Employees Union Local No 73

National Labor Relations Board - Board Decisions

Jun 8, 1976

224 N.L.R.B. 434 (N.L.R.B. 1976)

434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Service Employees Union Local No. 73, affi-
liated with Service Employees International Union,
AFL-CIO and A-1 Security Service Co.
General Service Employees Union Local No. 73, affi-
liated with Service Employees International Union,
AFL-CIO and Jack Moran d /b/a Moran Detective
Agency Cases 13-CC-858, 13-CP-287, and 13-
CC-868
June 8, 1976
DECISION AND ORDER
On September 23, 1975, Administrative Law Judge
James T Barker issued the attached Decision in this
proceeding Thereafter, the Respondent filed excep-
tions and a supporting brief and the General Counsel
filed a response brief in Cases 13-CC-858 and 13-
CP-287 In Case 13-CC-868, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed cross-exceptions with a supporting
brief and a response brief
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,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,3 as modified herein
' Respondent in Cases 13-CC-858 and 13-CP-287 excepts to the Admin-
istrative Law Judge's failure to grant its motion, made in its brief, to correct
the transcript at p 219, 1 10, so that it will read "40, 50 cents" instead of "4,
5 cents" appearing now We grant Respondent's motion and the transcript
is amended accordingly
Respondent in Case 13-CC-868 excepts to the Administrative Law
Judge's denial of its Motion for Summary Judgment Respondent contends
that the Regional Director's failure to seek injunctive relief under Sec 10(1)
of the Act is, as a matter of law, an admission that there was no reasonable
cause to believe that an 8(b)(4) violation occurred We do not agree The
decision to seek a 10(1) injunction is a matter of administrative discretion for
the Regional Director Accordingly, we affirm the Administrative Law
Judge's overruling of Respondent's motion
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
In par 5 of the section entitled "Conclusions, A The A-1 Security Case
the Administrative Law Judge apparently inadvertently erred in stating that
the threat was articulated to Figueroa on October 29 The threat was made
during the Figueroa-Loewenberg-Duff meeting on October 24
The Administrative Law Judge inadvertently erred in the third paragraph
in the section entitled (3) Loewenberg and 0 Leary converse" by attribut-
ing to Figueroa the assertion that Loewenberg was raising a jurisdictional
dispute O'Leary, not Figueroa, made this remark
In the first paragraph of sec III, B, 2, c, case entitled "The December 16
letter," the Administrative Law Judge inadvertently erred in stating "
later in the day a messenger delivered a letter ' The letter was sent on
December 16 and not December 14, the day referred to in the phrase "later
in the day "
3 Respondent excepts to the breadth of the Order At the hearing, the
General Counsel introduced into the record a copy of a recent decision by
the Board in an unrelated case, finding Respondent in violation of Sec
We adopt the Administrative Law Judge's conclu-
sion that in threatening to picket A-1 Security Ser-
vice Co, hereinafter A-1 Security, Respondent had a
recognitional object Further, we find that Section
8(b)(7)(C) of the Act proscribes a threat to picket
where the union cannot be certified as collective-bar-
gaining representative because it admits into mem-
bership both guards and nonguards
In October 1974, A-1 Security was awarded a con-
tract to provide guard services at five locations of
Illinois Bell Telephone Company On October 24,
1974, following the receipt of complaints from un-
specified guard companies that A-1 Security was
paying substandard wages, David Loewenberg, a la-
bor attorney and Respondent's representative, and
Charles Duff, another representative, visited Alfred
Figueroa, A-1 Security's president At the meeting,
Loewenberg handed Figueroa two copies of the
"Blue Book" contract in effect between Respondent
and a local guard agency association When Figue-
roa informed Loewenberg that he already had a con-
tract with the Independent Guards and Watchmen of
America, Loewenberg reacted sharply and asked
why Figueroa had not told him of this during an
earlier telephone conversation Loewenberg then
asked Figueroa about the benefits A-1 Security of-
fered its employees and, as Figueroa responded,
Loewenberg and Duff compared A-1 Security's ben-
efits with those contained in the "Blue Book" con-
tract The discussion revealed that A-1 Security paid
its guards starting salaries of $2 40 to $2 60 an hour,
progressing up to a maximum of $2 80 an hour as
compared to the "Blue Book" contract's starting
hourly rate of $2 45 proceeding upward to $2 65
Sick leave, vacation, travel allowance, uniform al-
lowance, and health and medical plans were also dis-
cussed According to Figueroa's credited testimony,
financial costs and differentials between his contract
and the "Blue Book" were mentioned with respect to
some, but not all, of these benefits In discussing the
contract grievance procedure, Duff informed Figue-
roa that A-1 Security need not be bound by the
"Blue Book's" formal grievance procedure so long
as A-1 Security had a grievance procedure covering
its employees
At the October 24 meeting, Loewenberg also ex-
plained to Figueroa that if A-1 Security signed with
8(b)(7)(C) and 8(b)(4)(i) and (n)(B) of the Act Respondent had voluntarily
complied with the Administrative Law Judge's recommended Order in that
case On the basis of the prior case and the violations found herein, the
Administrative Law Judge issued a broad cease-and-desist order In our
judgment, the evidence submitted does not establish a `proclivity" on the
part of Respondent to violate the Act, and, accordingly, we do not believe a
broad order is warranted Plumbers and Pipe Fitters Local Union 142, affiliat-
ed with United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada AFL-CIO (Cross Con-
struction Co, Inc), 169 NLRB 840 (1968)
224 NLRB No 43
GENERAL SERVICE EMPLOYEES UNION LOCAL NO 73 435
Respondent it would be the only Latin guard service
associated with Respondent As such, Loewenberg
stated that Respondent would help A-1 Security's
business growth by referring A-1 Security to other
companies requesting guard services On the other
hand, absent such an agreement , Respondent would
make efforts to restrict A-1 Security' s expansion, as
it purportedly had successfully done to other Chica-
go area guard agencies whose employees are repre-
sented by the Independent Guards and Watchmen of
America
At the close of the meeting, Loewenberg stated
that whether A-1 Security signed a contract with Re-
spondent was not of principal importance Instead,
he stated that A-1 Security's adherence to area stan-
dards, as established in the "Blue Book" contract,
was of primary importance Loewenberg then re-
quested that Figueroa notify him before beginning
on the Illinois Bell Telephone job so that he would
know how to proceed with regard to A-1 Security
Prior to talking with Figueroa, Loewenberg had
conversed by telephone with Timothy O'Leary of Il-
linois Bell about a minority guard service that had
recently been awarded a contract with Illinois Bell
In that conversation, Loewenberg stated several
times that the guard service was nonunion, pointing
out that it did not have a contract with Respondent
O'Leary responded that he thought the newly con-
tracted guard service was union because Illinois Bell
always investigated the union status of its contrac-
tors Following the Loewenberg-Figueroa meeting,
Loewenberg again contacted O'Leary to inform him
that A-1 Security was substandard and to inquire at
which Illinois Bell facilities A-1 Security would be
working Both in this conversation, and in a subse-
quent one with Illinois Bell's labor relations attorney,
Steven Schulson, Loewenberg stated that Respon-
dent intended to engage in area standards picketing
of A-1 Security if it paid substandard wages and
benefits
On November 6, 1974, Loewenberg wrote Figue-
roa requesting specific information concerning A-1
Security's wages and benefits The letter disavowed
any interest in executing a contract with the Compa-
ny and stated that Respondent would engage in pick-
eting if A-1 Security did not meet the prevailing area
standards established in Respondent's "Blue Book"
contract
No picketing has occurred
We find that, on the basis of the evidence taken as
a whole, in threatening to picket A-1 Security, Re-
spondent was motivated by a proscribed recogni-
tional object We base our findings on the following
(1) Loewenberg's repeated referral, during his con-
versation with O'Leary, to A-1 Security's lack of as-
sociation with Respondent, (2) Loewenberg's intem-
perate reaction to Figueroa's statement that A-1 Se-
curity had a contract with another union, (3) the un-
solicited presentation of Respondent's "Blue Book"
contract to Figueroa, (4) Loewenberg's attempt to
persuade Figueroa of the benefits of affiliation with
Respondent, (5) the discussion of noneconomic
items, i e , the grievance procedure at the October 24
meeting, and (6) Loewenberg's threat that, if A-1
Security did not sign an agreement with Respondent,
Respondent would attempt to restrict A-1 Security's
business opportunities 4
Moreover, the Administrative Law Judge conclud-
ed, and we so find, that at the times it threatened to
picket Respondent lacked sufficient independent in-
formation to determine that A-1 Security actually
paid substandard wages and benefits Loewenberg
admitted that prior to meeting with Figueroa he had
no knowledge of A-1 Security's wage and benefit
package During that meeting, Loewenberg learned
that A-1 Security's starting wage rates were higher
than both the "Blue Book" requirements and the In-
dependent Union's normal starting rate In spite of
this, Respondent claims that, on the basis of review-
ing the cost factors and submitted bids of the com-
plaining unspecified guard companies, it determined
that A-1 Security was substandard
While Member Fanning in his dissent correctly
characterizes Board law as not uniformly requiring
direct communication with an employer to determine
that it is substandard, the Board has found that a
union can conclude that an employer has a substan-
dard economic package only where there are ade-
quate, reasonably reliable, external sources to sub-
stantiate the union's conclusion 5 No such reliable
independent sources were used by Respondent here
4 See N L R B v United Brotherhood of Carpenters and Joiners of America,
Local 745 AFL-CIO [James Glover, Ltd], 450 F2d 1255 (CA 9, 1971),
Local Joint Executive Board, Bartenders and Culinary Workers of Las Vegas
and Vicinity Subordinate to the Hotel Restaurant Employees and Bartenders
International Union AFL-CIO et al (Holiday Inns of America, Inc), 169
NLRB 683 (1968)
5 The information in both cases relied upon by Member Fanning was
more substantially based than is Respondents figures which are allegedly
derived from unreliable predictions based upon other unknown companies'
cost factors and bids
In Plumbers Local Union No 68, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and
Canada AFL-CIO (Bexar Plumbing Company Inc) 220 NLRB 157 (1975),
the Board adopted the Administrative Law Judge's finding that the requisite
union knowledge of the employer's substandard wages was derived from (1)
jobsite visits and discussions with employees, and (2) the union 's belief that
the employer continued to provide wages and benefits pursuant to an old
substandard contract which the employer insisted had current application
In Steamfitters Local Union No 614 United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada AFL-CIO (Trumbo Welding and Fabricating Company), 199 NLRB
1026 (1972), the union obtained the information from wage reports for dif-
ferent crafts surveys taken by private companies, Department of Labor
reports and common knowledge within the industry that the union with
which the employer had a contract was substandard
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's information supposedly was that of the
labor costs and bids of unspecified complaining
guard companies whose employees were represented
by Respondent In contrast, the specific data given
Respondent by A-1 Security on October 24 more
than rebutted Respondent's sketchy facts, and
proved to any reasonable person that A-1 Security
was not a substandard employer
Thus, on the basis of the foregoing, we find that
Respondent's threat to picket was made for a recog-
nitional object
We further find that Respondent's threat to picket
A-1 Security is a violation of Section 8(b)(7)(C)
While the legislative history does not specifically ad-
dress the issue of whether a threat to picket is encom-
passed within the proscriptions of Section 8(b)(7)(C),
it clearly expresses a congressional intent to prohibit
both threats to picket and actual picketing as a
means of accomplishing the proscribed recognitional
object The inclusion of the language-"picket, or
cause to be picketed, or threaten to picket or cause to
be picketed"-in each of the proposed amendments
to the Act indicates such intent 6 During the debate
and consideration of these amendments, the legisla-
tors spoke of picketing in the general sense,' which
must be taken as encompassing the entire phrase
eventually included in the statute
Congress' purpose in enacting Section 8(b)(7) was
to prevent a labor organization from coercing an em-
ployer into recognizing it as collective-bargaining
representative without regard to employee prefer-
ence, and Congress recognized both picketing and
the threats to picket as the evils to be proscribed In
reaching our decisions, we are guided both by the
congressional description of the problem, and by its
expressed intent to alleviate it
It is our view that Section 8(b)(7)(C) must be read
in conjunction with the beginning language of Sec-
tion 8(b)(7) Part (C) is no more independent of the
language of 8(b)(7) than are parts (A) and (B) Ac-
cordingly, we construe the words, "such picketing,"
in Section 8(b)(7)(C) as referring to the particular
language of the initial paragraph of the section, and
incorporating by reference "picket, or cause to be
picketed, or threaten to picket or cause to be picket-
ed " Only if the language means what we have set
forth, will Section 8(b)(7)(C) accomplish the congres-
sional objective 8
6 See 105 Cong Rec S 748 (1959), 105 Cong Rec S 1387 (1959), 105
Cong Rec H 8400 (1959)
7 See 105 Cong Rec 15900 (daily ed, August 28, 1959) (remarks of Sena-
tor Kennedy), 105 Cong Rec 16398 (daily ed, September 3, 1959) (remarks
of Senator Morse), 105 Cong Rec 13877 (daily ed, August 5, 1959) (re-
marks of Representatives Landrum and Edmonson)
8 A threat continues in effect until it is retracted Thus, a threat to picket
for a proscribed object is operative until such time as the union clearly
Clearly, under Section 9(b)(3), Respondent herein
is ineligible to be certified as collective-bargaining
representative of A-1 Security's employees because it
admits both guard and nonguard employees to mem-
bership, and any petition for an election filed by Re-
spondent would therefore be dismissed Further-
more, under Board law any recognitional picketing
of A-1 Security that Respondent might engage in, for
whatever duration, would be a violation of Section
8(b)(7)(C) 9 Only finding that both picketing and the
threat to picket serve the same proscribed object will
meet with the statutory language and the congres-
sional intent expressed therein
Accordingly, we affirm the Administrative Law
Judge's finding that Respondent violated Section
8(b)(7)(C) by its threats to picket A-1 Security for a
recognitional objection
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 1
"I Cease and desist from threatening to picket
A-1 Security Service Co where an object thereof is
to force or require A-1 Security Service Co to recog-
nize or bargain with Respondent as the representa-
tive of A-1's guards, or forcing or requiring employ-
ees of A-1 to select Respondent as their
collective-bargaining agent, when Respondent has
not been certified as the representative of such em-
ployees and cannot be certified by virtue of the pro-
vision of Section 9(b)(3) of the Act "
2 Substitute the attached notice for that of the
Administrative Law Judge
indicates that it no longer intends to pursue the threatened picketing Our
task in a threat to picket situation is analogous to that in circumstances of
actual picketing since in both cases we assess the reasonableness of the
period of time during which the threat remains outstanding With picketing,
the period of activity runs from the establishment of the picket line until its
abandonment , with threats to picket, the applicable period runs from the
date the threat is made until the date it is retracted So viewed , our holding
imposes no greater proscriptions against the threat to picket than are pres-
ently applicable to actual picketing
v Drivers, Chauffeurs, Warehousemen and Helpers, Local Union No 71 affi-
hated with International Brotherhood of Teamsters, Chauffeurs, Warehouse
men and Helpers of America (Wells Fargo Armored Service Corporation), 221
NLRB 1240 (1975), Drivers, Chauffeurs & Helpers Local Union 639 affiliated
with International Brotherhood of Teamsters, Chauffeurs Warehousemen and
Helpers of America (Dunbar Armored Express Inc), 211 NLRB 687 (1974)
GENERAL SERVICE EMPLOYEES UNION LOCAL NO 73 437
CHAIRMAN MURPHY, concurring in part and dissent-
ing in part
I cannot agree with the holding of the majority
opinion herein that by threatening to picket to obtain
recognition as representative of a group of employees
a labor organization violates Section 8(b)(7)(C) This
issue appears to be one of first impression, as re-
search has disclosed no decision so holding All cases
of which I am aware have involved actual picketing
for a period of time found to be unreasonable Yet
the majority of the Board adopts the Administrative
Law Judge's finding that "it is an unfair labor prac-
tice under Section 8(b)(7)(C) of the Act for a labor
organization to threaten to picket any employer
where an object thereof is forcing or requiring an
employer to recognize or bargain with the labor orga-
nization as the representative of his employees
" 10 The Administrative Law Judge also states
"Threats to picket for a proscribed object are viola-
tive of Section 8(b)(7) of the Act and it is not essen-
tial that the threatened picketing be carried out Unit-
ed Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Local No 639 (American Modulars Corpo-
ration), 203 NLRB 1112 " 11 But the cited case in-
volved only alleged 8(b)(4)(B) violations and con-
tains no discussion of Section 8(b)(7), further, while
it is conceded that by its explicit terms a threat to
picket may violate Section 8(b)(7)(A) and (B), that
does not dispose of the issue presented here, i e ,
whether the same is true with respect to Section
8(b)(7)(C)
Reading Section 8(b)(7)(C) in its entirety, i e, the
introductory paragraph and subsection (C) itself,
demonstrates the error of the majority's holding
Thus, the relevant portions of the provision in full
are
(b) It shall be an unfair labor practice for a
labor organization or its agents-
(7) to threaten or picket
(C) where such picketing has been conducted
without a petition under section 9(c) being filed
within a reasonable period of time not to exceed
thirty days from the commencement of such
picketing
In contrast, the relevant language of subsections (A)
and (B) of Section 8(b)(7) clearly states, when read in
full, that
(b) It shall be an unfair labor practice for a
labor organization or its agents-
(7) to picket or threaten to picket
(A) where the employer has lawfully recog-
nized any other labor organization
(B) where within the preceding twelve months
a valid election under section 9(c) has been
conducted
This comparison demonstrates clearly that Congress
was limiting the proscription of subsection (C) to ac-
tual picketing, otherwise there would have been no
need for Congress to include in subsection (C) the
introductory words "where such picketing has been
conducted " 12 The rationale of my colleagues for
finding to the contrary is singularly illogical and un-
persuasive Congress well knew that the introductory
words were unnecessary and it is a maxim of statuto-
ry construction that none of the language should be
disregarded and all terms should be given their usual
and ordinary meaning and signification except where
the lawmaking body has indicated that the language
is not so used 13 There is no such indication with re-
spect to subsection (C)
For the above reasons, I am persuaded that a vio-
lation of Section 8(b)(7)(C) may be predicated solely
on actual picketing with a proscribed object for more
than a reasonable period Since no picketing has
been shown to have occurred here,14 and inasmuch as
I agree with my colleagues in adopting the Adminis-
trative Law Judge's recommendation to dismiss the
complaint insofar as it alleged violations of Section
8(b)(4)(B), I would dismiss the complaint in its en-
tirety
MEMBER FANNING, dissenting
Unlike my colleagues, I conclude that Re-
spondent's assertions that it might picket certain
locations where Charging Party A-1 Security Service
Co, herein A-1, would be working did not violate
Section 8(b)(7)(C) of the Act because I find that the
picketing which Respondent indicated it might un-
dertake would have been protected primary area
standards picketing, not violative of Section
8(b)(7)(C) of the Act Moreover, even were I to agree
with my colleagues that the picketing which Respon-
12 The unacceptability of the majority view is apparent from the logical
difficulty of appl) ing the concept of a threat to picket continuing for "a
reasonable period of time not to exceed thirty days " Must a threat be
renewed each day in order to continue for `a reasonable period" or does it
continue unless and until specifically retracted? Or does the continuance
depend on the nature or degree of severity of the threat? It is obvious that as
a result of the majority holding in this case the proscriptions of Sec
8(b)(7)(C) are much more severe as to speech than as to actual economic
action , a result which I cannot believe Congress intended To say that a
threat continues until withdrawn demonstrates the more severe nature of
such a violation as compared with actual picketing , for picketing continues
only each day it is actually repeated whereas a threat would continue with-
out renewal under the approach of the majority
13 Carter v Division of Water, City of Youngstown , 146 Ohio St 203 65 NE
2d 63 (1946)
10 ALJD, section entitled Conclusions," first paragraph under A The 14 Inasmuch as I would dismiss the complaint in the absence of actual
A-1 Security Case " picketing by the Respondent Union, I find in unnecessary to consider and
11 Ibid , last sentence of par 9 of same section , same heading determine the Respondents objective in this case
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent indicated it might take against A-i was recogni-
tional rather than area standards picketing, I would
still find no violation in Respondent's assertions con-
cerning the possibility of picketing because I read
Section 8(b)(7)(C) as solely prohibiting, in appropri-
ate circumstances, "pick eting" for a recognitional or
organizational object as opposed to the "threat," as
here, to undertake such picketing I would therefore
reverse the Administrative Law Judge's 8(b)(7)(C)
finding 15
With respect to the area standards nature of the
picketing which Respondent indicated it might take
against A-1, I note the following facts
In early October 1974,16 A-1 won a contract from
Illinois Bell Telephone Company, herein Illinois Bell,
to provide guard services for Illinois Bell at five of its
locations, beginning on November 1 17 Before A-1
commenced working for Illinois Bell under its new
contract, however, it was contacted by, and met, on
October 24, with representatives of Respondent, in-
cluding attorney David Loewenberg As the Admin-
istrative Law Judge himself found, Loewenberg,
prior to this meeting, had received complaints from
various sources that A-1 was undercutting firms sig-
natory to a collective-bargaining agreement which
Respondent had with area employers 18
During the meeting of October 24, Respondent's
representatives indicated at various stages to A-1's
president, Albert Figueroa, Jr, that they were there
to discuss the wages and benefits A-1 was providing
its employees and that they were approaching A-1 at
this time because A-1 was then obtaining accounts
which had caused other guard companies of the As-
sociation to insist that Respondent bring A-1 in line
with the terms of Respondent's contract with the As-
sociation In fact, the parties discussed the Associa-
tion contract at length and while, at times, there was
certain discussion of noneconomic terms, Re-
spondent's representatives also asked Figueroa to
compare numerous of his economic benefits with
those of the Association contract It is true that at the
meeting Respondent's representatives may have indi-
cated the advantages of the Association contract and
even of representation by Respondent 19 However,
Loewenberg, in closing the meeting, indicated to Fl-
15 I would affirm the Administrative Law Judge 's finding that Respon-
dent did not violate Sec 8(b)(4)(B ) of the Act in the case involving Moran
Detective Agency and , in the absence of exceptions , would also affirm that
similar finding in the case involving A-1
16 All dates are 1974 unless otherwise noted
17 A-1 earlier had secured a contract at another of Illinois Bell's locations
18
Respondent has a contract with the members of Associated Guard and
Patrol Agencies , herein the Association , and the standards maintained by
Respondent in that contract are essentially the standards that cover about
901percent of the guards in the area in which A- 1 operates
A-1 then had a collective -bargaining agreement with Independent
Guards and Watchmen of America, herein the Independent
gueroa that it was not of principal importance to him
whether A-1 executed a contract with Respondent
and, when Loewenberg indicated that Respondent
might picket A-1 if it began its work for Illinois Bell
on November 1, he did so only on the condition that
A-1 would not then be meeting the standards of the
Association contract, which, it is not denied, set the
area's standards
After this meeting with Figueroa, and consistent
with its area standards objective, Respondent, on Oc-
tober 29, by its representative, Loewenberg, then
spoke with Illinois Bell Representative O'Leary 20 In
the course of this conversation, Loewenberg stressed
that A-1 did not meet area standards in wages and
benefits, expressed concern that a public utility com-
pany like Illinois Bell would permit the payment of
substandard wages, wondered if the agreement be-
tween A-1 and the Independent was not, in fact, a
"sweetheart contract", and, when told that Illinois
Bell was trying to give business to minority firms
such as A-1, indicated that he could supply Illinois
Bell with a list of minority firms that did comply with
area standards 21
On November 1, A-1 began providing guard serv-
ices for Illinois Bell at the five locations, but Respon-
dent did not then picket A-1 Instead, on November
6, it sent a letter to A-1 in which it reiterated that it
had no desire to execute a contract with A-1 but that
it did want A-1 to provide its employees with bene-
fits which met prevailing standards It indicated that,
as a result of its representatives' conversation with
A-1 on October 24, it knew A-1 was not paying the
prevailing area benefits However, to insure that
"there [might] be no misunderstanding about this
matter," Respondent requested that A-1 supply it
with a listed grouping of wages and benefits which
Respondent would then compare with its area con-
tract If A-1's benefits met the standards in
Respondent's area contract, Respondent promised to
take no further action against A-1 If the benefits did
not measure up to those of the area contract, howev-
er, Respondent indicated that it would commence
picketing A-1 at those locations where its guards
were working
While Respondent indicated in its letter that
should it receive no response within 1 week it would
20 Loewenberg had initially spoken with O'Leary prior to engaging in the
October 24 conversation with Figueroa
21
The gist of the argument Loewenberg made to 0 Leary was also made
by Loewenberg to Illinois Bell attorney Schulson who called Loewenberg
after the former had talked with O'Leary In his conversation with O'Leary
Loewenberg had sought those locations at which A- I would be working for
Illinois Bell so that Respondent would picket only at those locations should
A-1 not comply with the negotiated area standards O'Leary had then con-
tacted Schulson, who cautioned Loewenberg against undertaking any pick-
eting Loewenberg insisted, however , that any picketing against A-] would
be for the area standards objective Respondent was pursuing and would
thus be fully legal
GENERAL SERVICE EMPLOYEES UNION LOCAL NO 73 439
begin picketing, Respondent has never picketed A-1,
although A-1 did not respond to Respondent's letter
The Administrative Law Judge concluded that Re-
spondent, by its representative, Loewenberg, in its
October 24 meeting with A-I Representative Figue-
roa and in the November 6 letter it sent to A-1,
threatened to picket A-1 for a recognitional object in
violation of Section 8(b)(7)(C) of the Act While I
treat, below, the issue of the "threat" to picket vis-a-
vis any actual picketing, I conclude that Re-
spondent's objective in its indicated picketing was
for an area standards purpose not in violation of the
Act
It is undenied that Respondent had contracts with
the bulk of the guard service employers in the area
Thus, it was clearly to Respondent's advantage to
insure that any employers, such as A-1, not under
contract with it, at least provided benefits the equal
of those Respondent had secured from other area
employers 22 To that end, Respondent had knowl-
edge of other employers' complaints, that A-1 was
undercutting them, before Respondent met with A-1
on October 24 I thus find Respondent had sufficient
information to trigger that October 24 meeting at
which Respondent ascertained first hand the differ-
ence between those wages and benefits A-1 was pay-
ing and those Respondent had negotiated 23 Respon-
dent thus had sufficient knowledge of A-1's benefit
scale at those times it threatened to picket A-1 24
I am also persuaded that Respondent did project
an area standards objective in its dealings with A-1
22 In upholding picketing for an area standards purpose, the Board has
stated that a union "has a legitimate interest apart from organization or
recognition that employers meet prevailing payscales and employee bene-
fits , for otherwise employers paying less than the prevailing wage scale
would ultimately undermine the area standards " Local Union No 741 Unit
ed Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada AFL-CIO (Keith Riggs Plumbing
and Heating Contractor), 137 NLRB 1125, 1126 (1962)
23 While Figueroa may have indicated at the meeting a starting wage
possibly higher than that in the Association contract, Loewenberg also dis-
covered at the meeting that A- 1 had its contract with the Independent
whose starting scale was , in fact, lower than that provided in the Association
contract
24 While the Administrative Law Judge appears to stress that Respondent
had not taken sufficient steps to ascertain from A- 1, whether its employ-
ment benefits did not meet the area standards, the Board has found in other
cases that direct communication with the allegedly below-standards em-
ployer is not a prerequisite where a union possesses a reasonable amount of
information of that employer 's below area standards Plumbers Local Union
No 68, United Association of Journeyman and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada AFL-CIO (Bexar
Plumbing Company, Inc), 220 NLRB 157 (1975), Steamfitters Local Union
No 614, United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada AFL-CIO (Trumbo
Welding and Fabricating Company), 199 NLRB 1026 (1972) In this case
Respondent did directly communicate with A-1 and ascertained its rates
Contrary to the majority' s contention , the only fact the Board relied on in
Bexar Plumbing in finding union knowledge of an employers substandard
wages was a union's representative s jobsite discussion of those wages with
an employee and, as noted, here the Union held direct discussion with A-1,
the employer involved
While certain of Loewenberg' s statements to Figue-
roa during the October 24 meeting could be con-
strued as seeking other than an area standards objec-
tive, I believe that the evidence viewed as a whole
demonstrates that, while Loewenberg would have
been most happy to have A-1 sign a contract, if pos-
sible, with Respondent, that issue was separate from
the threat to picket A-1 25 First, and foremost, Loew-
enberg desired that A-1 meet negotiated area stan-
dards and continually notified A-1 of that objective
Were that objective accomplished, there would have
been no need for picketing and, since the objective
could have been accomplished without A-1's recog-
nizing and signing a contract with Respondent, I
conclude Respondent's indications to A-1 that A-1
might be picketed did not violate Section 8(b)(7)(C)
of the Act 26
Moreover, as indicated above, were it established
that Respondent's threats to picket were, in fact, in
support of a recognitional objective, I would still find
no violation of Section 8(b)(7)(C) in the threats as I
do not believe that Section 8(b)(7)(C) prohibits
threats to picket but only actual picketing in the cir-
cumstances described
I have set out the pertinent provisions of Section
8(b)(7)(A), (B), and (C) below 27 From a reading of
Section 8(b)(7) without regard to subsections (A),
(B), and (C), it would appear that that section forbids
25 While the Board is not bound by a union's self-serving declarations, I
have considered , in so concluding, Loewenberg's insistent declarations to
Illinois Bell officials that A- 1 was not meeting area standards and would be
picketed for that reason Cf United Brotherhood of Carpenters and Joiners of
America, Local 480, AFL-CIO (National Mill Designs, Inc), 209 NLRB 921,
922 fn 11 (1974)
26 While in his first conversation with Illinois Bell Representative
O'Leary, Loewenberg referred to A-1's supposed "non-union ' status, such
remark must be weighed with the totality of the evidence presented and may
not be inconsistent with an area standards object See , e g Local 107, Inter-
national Hod Carriers, Building and Common Laborers' Union of America,
AFL-CIO (Texarkana Construction Company), 138 NLRB 102 (1962)
n Sec 8(b)(7)(A), (B), and (C) provide, in pertinent part
(b) It shall be an unfair labor practice for a labor organization or its
agents-
(7) to picket or cause to be picketed, or threaten to picket or cause to
be picketed any employer where an object thereof is forcing or requir-
ing an employer to recognize or bargain with a labor organization as
the representative of his employees, or forcing or requiring the employ-
ees of an employer to accept or select such labor organization as their
collective bargaining representative , unless such labor organization is
currently certified as the representative of such employees
(A) where the employer has lawfully recognized in accordance with
this Act any other labor organization and a question concerning repre-
sentation may not appropriately be raised under section 9(c) of this
Act,
(B) where within the preceding twelve months a valid election under
section 9(c) of this Act has been conducted, or
(C) where such picketing has been conducted without a petition un-
der section 9(c) being filed within a reasonable period of time not to
exceed thirty days from the commencement of such picketing Proved
ed, That when such a petition has been filed the Board shall forthwith,
without regard to the provisions of section 9(c)(1) or the absence of a
showing of a substantial interest on the part of the labor oganization,
direct an election in such unit as the Board finds to be appropriate and
shall certify the results thereof
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union not only "to picket" but also to "threaten to
picket" an employer for recognitional or organiza-
tional purposes when that union is not the currently
certified representative of the employees picketed
But, of course, Section 8(b)(7)'s proscriptions are, in
fact, limited to those three particular situations then
described in subsections (A), (B), and (C) of Section
8(b)(7)
In the first two of these subsections, (A) and (B),
the terms "to picket" and "to threaten to picket" are
not repeated from the general Section 8(b)(7) and
thus both of those terms' applicability in subsections
(A) and (B) must clearly be assumed from the gener-
al provision above Thus in the particular situations
subsections (A) and (B) describe, both recognitional
and organizational picketing and the threat to engage
in such picketing, are violations of the Act, but they
are violations only with respect to the situation de-
fined, that is to say, subsection (A) is violated by a
threat to picket or picketing when a question con-
cerning representation may not appropriately be
raised, and (B) is violated when such threat to picket
or picketing occurs within 12 months of a valid elec-
tion conducted under Section 9(c)
Section 8(b)(7)(C), however, not only limits the
general applicability of Section 8(b)(7) to the particu-
lar situation described, as subsections (A) and (B), in
their turn, also do, but subsection (C) also narrows
the activity proscribed in that particular situation
For, unlike subsections (A) and (B), which have no
reference to a particular activity or activities pro-
scribed and which are thus governed in that respect
by general Section 8(b)(7), subsection (C) of Section
8(b)(7) specifically proscribes only "picketing," in the
circumstances set forth, and does not prohibit threats
to picket Thus, a threat to picket does not fall per se
within the proscription of this subsection and, ac-
cordingly, does not constitute a violation of Section
8(b)(7)(C) of the Act 28
Further, subsection (C) varies from the two pre-
ceding subsections because subsection (C) proscribes
only that picketing where a petition is not filed with-
in a reasonable period of time, up to 30 days from
the picketing's start Hence, unlike subsections (A)
and (B), where the picketing involved is unlawful
from the start, under subsection (C) organizational or
recognitional picketing of a reasonable duration is
permitted and if the Union achieves representative
2s United Mine Workers of America District 12 (Truax Traer Coal Compa
ny, et al), 177 NLRB 213 217 (1969)
Of course , a threat to picket for a recognitional object might be consid-
ered in identifying the character of any activities including picketing which
were subsequently carried out in implementing the threat See e g United
Mine Workers of America, District 12, 177 NLRB at 217 But here, where
there was in fact no picketing the threat to engage in same standing alone,
is not a violation of the Act under Sec 8(b)(7)(C)
status and the parties sign a contract during that pe-
riod, as a result of the picketing, the Board would
honor that agreement Accordingly, if short-term rec-
ognitional or organizational picketing is ordinarily
permissible under subsection (C), then the simple
threat to engage in that picketing, without ever doing
so, is permissible also 29
In sum then, I find the picketing which Respon-
dent intimated it might undertake against A-1 was
lawful area standards picketing but, even were I to
conclude that Respondent threatened to picket A-1
for a recognitional object, I would find that such ac-
tion did not violate Section 8(b)(7)(C) of the Act
29I realize the majority response to this argument (based on Drivers
Chauffeurs & Helpers Local Union 639 affiliated with International Brother
hood of Teamsters, Chauffeurs Warehousemen and Helpers of America (Dun
bar Armored Express, Inc), 211 NLRB 687 (1974), is that , since Respondent
admits nonguards into its membership , it could never file a petition under
Sec 9(c)(1), thereby raising a question concerning representation in the
guard unit, and that since Respondent could not do so it could never be
certified in that unit, leading to the conclusion that any picketing , or seem-
ing threat to picket , that it undertook here was instantly violative of Sec
8(b)(7)(C)
As I have stated, however, in my dissent in Drivers, Chauffeurs, Ware
housemen and Helpers, Local Union No 71 affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(Wells Fargo Armored Service Corporation) 221 NLRB 1240 (1975), Sec
8(b)(7)(C), itself, provides for an expedited election "without regard to the
provisions of Section 9(c)(1)" and thus without regard to whether the peti-
tion would raise a question concerning representation Since an election
could be held here , albeit not one resulting in a certification , picketing, or
the threat to picket here , was not impermissible Moreover, the second pro-
viso to Sec 8(b)(7)(C) permits picketing "for the purpose of truthfully advis-
ing the public (including consumers) that an employer does not employ
members of , or have a contract with a labor organization Such
picketing necessarily has a recognitional or organizational object Chefs,
Cooks Pastry Cooks and Assistants Local 89, Hotel and Restaurant Employ
ees Union, AFL-CIO et al (Stork Restaurant, Inc), 135 NLRB 1173 (1962),
Retail Store Employees Union, Local No 428 Retail Clerks International
Association AFL-CIO (Martino s Complete Home Furnishings ), 141 NLRB
503 (1963 ), but does not trigger the election provisions of the first proviso to
the section Ibid Thus a threat to engage in recognitional picketing cannot
be presumed a threat to engage in the sort of picketing Sec 8 (b)(7)(C) is
designed to bring to an end either through certification or application of the
provisions of Sec 8 (b)(7)(B)
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten A-1 Security Service
Co with picketing at locations where guard
services are being provided, where an object of
the picketing is to force or require A-1 to recog-
nize or bargain with Local 73 as the representa-
tive of its guard employees, or forcing or requir-
ing the employees of A-1 to select Local 73 as
their collective-bargaining agent, when Local 73
has not been designated by employees as their
bargaining representative, or when Local 73 has
GENERAL SERVICE EMPLOYEES UNION LOCAL NO 73 441
not been certified by the National Labor Rela-
tions Board as the representative of such em-
ployees and cannot be certified by virtue of the
provisions of Section 9(b)(3) of the National La-
bor Relations Act
GENERAL SERVICE EMPLOYEES UNION LOCAL
No 73, AFFILIATED WITH SERVICE EMPLOYEES
INTERNATIONAL UNION, AFL-CIO
DECISION
STATEMENT OF THE CASE
JAMES T BARKER, Administrative Law Judge This mat-
ter came on for hearing at Chicago, Illinois, on May 7, 8
and 9, 1975, pursuant to an order consolidating cases, con-
solidated complaint and notice of hearing in Case 13-CC-
858 and 13-CP-287, issued on December 4, 1974, by the
Regional Director of the National Labor Relations Board
for Region 13, a complaint and notice of hearing in Case
13-CC-868, issued by the Regional Director on March 3,
1975, an original order further consolidating cases issued
by the Regional Director in the captioned cases on March
3, 1975, and an amendment to consolidated complaint in
Cases 13-CC-858 and 13-CP-287, issued by the Regional
Director on March 10, 1975 The complaint in Cases 13-
CC-858 and 13-CP-287 is based on original charges filed
by A-1 Security Service Co on October 31, 1974, and the
complaint in Case 13-CC-868 is based on a charge filed by
Jack Moran d/b/a Moran Detective Agency on January
31, 1975, as well as a first amended charge filed by Moran
on February 12, 1975 The complaint in the former case
alleges violations of Section 8(b)(7)(C) and 8(b)(4)(ii)(B) of
the National Labor Relations Act, as amended, hereinafter
called the Act The complaint in the latter case alleges vio-
lations of Section 8(b)(4)(ii)(B) of the Act The parties
timely filed briefs with me i
'During the course of the evidentiary hearing , I denied Respondents
motion to sever the consolidated cases herein, and ruled adversely to Re-
spondent with respect to motions for a bill of particulars and for summary
judgment in the Moran case , and those rulings are affirmed
In this regard , of particular significance is the ruling denying
Respondent' s motion for summary judgment on grounds that the Moran
case should be dismissed because the Regional Director failed to seek a
court injunction under Sec 10(1) of the Act Respondent contended that the
language of the statute imposes upon the Regional Director the mandatory
obligation to seek an injunction when the conditions enumerated in Sec
8(b)(4) of the Act are present Retail Clerks Union, Locals 137 et al v Food
Employers Council, Inc, 351 F 2d 525 (C A 9, 1965), Terminal Freight Han
dung Co v Solien, 444 F 2d 699 (C A 8, 1971 ) Respondent avers that not
only the mandate of the statute was breached but the failure of the Regional
Director to seek an injunction constituted, in effect , an admission on his
part that he did not have "reasonable cause to believe " that the charges
before him were meritorious On the other hand, counsel for the General
Counsel persuasively argued that under Sec 3 (d) of the Act , the General
Counsel , acting through the Regional Director, is vested with a wide range
of discretion which relieves him of the obligation , in proper circumstances
of seeking injunctive relief when, in his judgment, there exists no danger of
substantial or irreparable injury to flow from the present conduct of the
charged party Although, contrary to my impression during the course of
the hearing, there exists no established Board precedent clearly dispositive
of this issue , I find the contention of the General Counsel both logically
Upon the entire record in the case, the briefs of the par-
ties, and from my observation of the witnesses and their
demeanor, I make the following 2
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYERS
A A-1 Security Service Co
A-1 Security Service Co, hereinafter called A-1, is an
Illinois corporation which provides guard services to vari-
ous employers and is duly licensed in the State of Illinois
During the calendar or fiscal year immediately preced-
ing the issuance of the complaint herein, A-1 provided
guard services valued in excess of $50,000 to companies
who themselves manufactured, sold, and shipped finished
products valued in excess of $50,000 directly in interstate
commerce
Commencing on or about November 1, 1974, A-1 pro-
vided guard services to Illinois Bell Telephone Company,
hereinafter called Illinois Bell, at five locations of Illinois
Bell located in Chicago, Illinois
At its five locations above referred to, Illinois Bell is
engaged in the business of providing local and long-dis-
tance communications and related services as part of a na-
tionwide telephone system During the course of the fiscal
or calendar year immediately preceding the issuance of the
complaint herein, Illinois Bell derived gross revenues at
said locations in excess of $100,000
Upon the foregoing facts which are not in dispute, I find
that at all times material herein A-1 and Illinois Bell have
been employers engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act
B Moran Detective Agency
Jack Moran d/b/a Moran Detective Agency, hereinafter
called Moran , at all times material herein , has been en-
gaged in the business of providing guard services
During the calendar year ending December 31, 1974,
Moran provided guard services valued in excess of
$500,000 to companies which themselves manufactured,
sold, and shipped finished products valued in excess of
$50,000 directly in interstate commerce
During the calendar year immediately preceding the
hearing herein, Moran provided guard services to St Ber-
nard Hospital, a nonprofit health care institution engaged
in Chicago , Illinois, in the business of providing general
hospital services During the fiscal year immediately pre-
ceding the hearing herein, St Bernard Hospital had gross
revenues in excess of $5 million
Upon these facts which are not in dispute, I find that at
all times material herein Moran and St Bernard Hospital
persuasive and in keeping with the spirit and intendment of the statute
Accordingly, I affirm my ruling denying the motion for summary judgment
Similarly , my rulings with respect to subpenaed material are also reaf
firmed
2 The transcript of the proceedings is hereby corrected in accordance with
the unopposed motion of counsel for the General Counsel
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
General Service Employees Union Local No 73, affiliat-
ed with Service Employees International Union, AFL-
CIO, hereinafter called Respondent or the Union, is a la-
bor organization within the meaning of Section 2 (5) of the
Act
III THE UNFAIR LABOR PRACTICES
A The Issues
The principal issues in this consolidated proceeding are
1 Whether Respondent, in violation of Section
8(b)(7)(C) of the Act, threatened to picket the Chicago in-
stallations of Bell Telephone where A-1 was to engage in
providing guard services, or whether Respondent, in com-
municating with agents of Bell Telephone, merely threat-
ened legitimate primary activity to protest the failure of
A-1 to adhere to area wage and benefits standards
2 Whether, under the guise of legitimate area standards
objectives, Respondent unlawfully threatened to picket the
installations of Bell Telephone if the company failed to
furnish certain information relating to locations at which
A-1 was providing guard services for the company, thus
unlawfully under Section 8(b)(4)(n)(B) enmeshing a neutral
in a dispute between Respondent and A-1
3 Whether in violation of Section 8(b)(4)(11)(B) of the
Act, Respondent threatened to enmesh St Bernard Hospi-
tal, a neutral in a dispute with Moran, or whether in com-
municating with agents of the hospital, Respondent was
pursuing a legitimate area standards objective
B Pertinent Facts
1 The A-1 Security case
a Background facts
Employees of A-1 perform various security duties at the
installations and physical facilities of customers who con-
tract with A-1 for guard services The duties vary from
installation to installation and include security, surveil-
lance, and fire watch assignments, as well as other related
tasks Employees are bonded and wear uniforms Some
carry weapons depending upon the job to be performed
and the contracting company's needs and requests The
extent to which the employees of A-1 may enforce compa-
ny regulations depends upon the customer's directive to
which the guards conform 3
Albert Figueroa, Jr, was president of A-1 from Septem-
ber 1974 through late October into November 1974 Subse-
quent to November 1974, Figueroa, Junior, has served in
the capacity of manager of A-1 Alfred Figueroa, Sr, has
also been active in the operations of A-1 at times pertinent
The Chicago offices of A-1 occupy one large room At
relevant times, Figueroa 's sister, Marie Walldren , worked
in the company office with Figueroa, Junior, performing a
variety of secretarial , bookkeeping , and personnel func-
tions
David Loewenberg has been employed at pertinent times
as a staff attorney for Respondent Loewenberg has experi-
ence in the field of labor relations dating from 1948 He
has dealt in an in-depth fashion with labor relations cases
arising under Section 8(b)(4) and 8(b)(7) of the Act
At relevant times Charles Duff has worked in the em-
ploy of Respondent with specific and primary responsibil-
ity for dealing with contractual matters relating to the
guard industry In connection with this responsibility, it
has been Duff 's duty to explain to prospective contractors
with whom Respondent has dealt the provisions of
Respondent's collective -bargaining agreement and the
manner of its enforcement Duff possesses authority to
reach accommodations with prospective contractors on
some provisions relating to fringe benefits Loewenberg as
well as Duff has negotiated contracts on behalf of Respon-
dent and Loewenberg has had some primary responsibility
in negotiating initial collective-bargaining agreements 4
On July 25, 1974, A- 1 and Independent Guards and
Watchmen of America entered into a collective-bargaining
agreement to continue in full force and effect until Decem-
ber 31 , 1977 The collective-bargaining agreement was ne-
gotiated on behalf of A-1 by Alfred Figueroa, Sr The
terms of the agreement extended recognition to the Inde-
pendent in a unit including all security and investigative
personnel and contained a provision specifying that the
terms of the agreement must be "applied uniformly to all
employees" without discrimination of any kind among em-
ployees with respect to terms or conditions of employment
The agreement contained a union-security and checkoff
provision requiring "all present employees " to join the
Union within 60 days and to remain members in good
standing as a condition of employment
The agreement contained a schedule of wages as well as
articles covering , inter alia, hours of work , overtime, holi-
days and holiday wages , bonuses, vacations, sick days, se-
niority, promotions , terminations, adjustment of griev-
ances , leaves of absence , and health and welfare
Neither the Independent nor any other labor organiza-
tion has ever been certified to represent the employees of
A-1
During the course of the negotiations leading to the con-
tract, Figueroa , Senior, advised George Bradley, president
of the Independent , that separate guard service contracts
had been consummated with Commonwealth Edison and
Illinois Bell and that it was essential that employees of
A-1 who were to be eventually assigned to service those
contracts be represented by a labor organization The em-
ployee complement later to be assigned to service those
contracts had not been selected at the time of the execution
of the collective-bargaining agreement , and neither service
contract had commenced The Commonwealth Edison
contract began on July 31 and the Illinois Bell contract
commenced on August 8 Recruitment of the guards to be
assigned to Commonwealth Edison was not accomplished
3 The credited testimony of Alfred Figueroa, Jr , establishes the foregoing 4 The credited testimony of David Loewenberg establishes the foregoing
GENERAL SERVICE EMPLOYEES UNION LOCAL NO 73 443
until Monday, July 29 The complement of employees des-
ignated to service the Illinois Bell contract was similarly
selected subsequent to the July 25 consummation of the
agreement with the Independent There is no evidence re-
vealing that the employees assigned to either contract had
signed authorization cards on behalf of the Independent
prior to July 25 5
For a period of 4 years, A-1 had unsuccessfully endeav-
ored to obtain a guard service contract from Illinois Bell
However, in 1974 a bid submitted to Illinois Bell to provide
guard services at a Western Avenue installation of the
company was accepted and A-1 commenced providing
guard services under that contract on August 8
Thereafter, in early September, A-1 was requested by
Illinois Bell to submit a bid to provide guard services at
five other locations of the company Four other guard
firms entered bids In early October, A-1 was advised that
its bid had been accepted and the contract was let on No-
vember 1 6
b The alleged unlawful conduct
(1) Loewenberg speaks with O'Leary
In mid-October, Loewenberg called Timothy O'Leary by
telephone at O'Leary's office He identified himself as an
attorney for Local 73 He stated that he understood that
Bell Telephone was letting guard service contracts and that
one of the successful bidders was a minority guard firm
O'Leary answered in the affirmative and Loewenberg as-
serted that the minority firm was nonunion O'Leary stated
that he found this "hard to believe" and observed that Bell
Telephone usually checks the union affiliation of firms to
whom bids are let Loewenberg was insistent, however,
with respect to the nonunion status of the minority firm
and O'Leary agreed to look into the matter Loewenberg
stated during the course of the conversation that the mi-
nority firm was not affiliated with Local 73 in any manner
and Bell Telephone should not seek bids from the firm
O'Leary answered that this posed essentially a union juris-
dictional dispute in which he was not personally interested
In this regard, O'Leary stated that he did not care what
union represented the employees of firms to whom bids
were let, but Loewenberg repeated that the firm in question
was not affiliated with Local 73 The conversation ended
on this note with O'Leary agreeing to investigate the mat-
ter 7
O'Leary credibly testified that the only bid of a minority
5 The testimony of Marie Walldren, who was present during the conversa
tion between her father and George Bradley, establishes the details of the
discussion relating to the execution of the July 25 agreement Alfred Figue-
roa, Jr , testified that no authorization cards or other authorizations to the
Independent had been executed by employees on or before July 25
6 The foregoing is based on the credited testimony of Alfred Figueroa, Jr,
and Timothy O'Leary
7 The foregoing is based on the credited testimony of Timothy 0 Leary I
am convinced that O'Leary's recollection of the salient elements of this
conversation was accurate, even though he conceded that he had better
recall of the subsequent conversation with Loewenberg than of the instant
one Loewenberg s inability to recall this conversation is not deemed suffi-
cient to overcome the testimony of O'Leary which was both plausible and
credible
firm which had been accepted by Bell Telephone at the
time of the conversation in question had been submitted by
A-1
(2) The October 24 meeting
In mid-October, Figueroa Junior conversed by tele-
phone with David Loewenberg Loewenberg had initiated
the telephonic contact Loewenberg had received com-
plaints that A-1 was undercutting firms signatory to the
collective-bargaining agreement with Local 73 8
On October 24, Loewenberg met with Figueroa as sched-
uled The meeting transpired in Figueroa's office and
Loewenberg was accompanied by Duff Loewenberg and
Duff entered the one-room office where the meeting began
and spoke first with Marie Walldren, Figueroa's sister,
Walldren was engaged in work activities at her desk in the
forward part of the office and, upon entering the office,
Loewenberg and Duff identified themselves to Walldren
by name and stated they were representatives of Local 73
They further noted that they desired to speak with "Mr
Figueroa " Walldren motioned toward Figueroa, who was
seated at his desk approximately 5 feet away Thereupon,
Loewenberg and Duff approached Figueroa and spoke
with him The union agents repeated the introduction,
again identifying themselves by name and as representa-
tives of Local 73 Loewenberg then asked if there were a
place they could speak privately and Figueroa answered
that they could speak freely in front of his secretary be-
cause she was his sister and conversant with the details of
the business Loewenberg then stated that he and Duff
were there to speak with Figueroa about the wages and
benefits which he was providing for his employees Loew-
enberg handed Figueroa two copies of the then current
collective-bargaining agreement between Local 73 and As-
sociated Guard and Patrol Agencies, herein called the As-
sociation Figueroa took the two proffered copies of the
agreement-commonly known as the Blue Book-but stat-
ed that he already had a contract with the Independent
Guards and Watchmen of America Loewenberg there-
upon asked Figueroa why he had not informed him of this
when they had spoken by telephone earlier Figueroa re-
sponded that Loewenberg had not inquired and had mere-
ly stated that he wished to speak to him about "an impor-
tant matter " Loewenberg then asked Figueroa if the
Independent represented all of his guard employees and
Figueroa stated that the representation extended only to
guards assigned to service accounts that requested union
guards To this statement Loewenberg responded that un-
der any agreement with Local 73 all guards employed by
A-1 would have to be covered At this puncture in the con-
8 David Loewenberg testified that prior to contacting Figueroa by tele-
phone, he had received complaints from a major contractor to the effect
that A-I was "subverting area standards and had underbid the firm on the
Illinois Bell job Loewenberg refused to disclose the identity of the firm and
upon motion of the General Counsel, the testimony was stricken as substan-
tive evidence but permitted to stand as an offer of proof I affirm this ruling
on the ground that Loewenberg's refusal visited significant , potential detri-
ment upon the General Counsel in limiting potential avenues for testing the
validity of Loewenberg's testimony However, other evidence of record is
sufficient to support the finding that complaints were lodged with Respon-
dent regarding A-I
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
versation, an individual came into the office and spoke
with Walldren The conversation between Figueroa and
the representatives of Local 73 ceased, and Duff suggested
that the three of them go across the street and conduct
further discussions over a cup of coffee Figueroa, Loewen-
berg, and Duff thereupon left the office and walked across
the street to a restaurant Figueroa carried the two copies
of the Blue Book with him 9
Loewenberg, Duff, and Figueroa proceeded across the
street to the restaurant Walldren remained in the office
Enroute to the restaurant, Loewenberg inquired as to the
starting rate for A-1 employees The discussion with re-
spect to wages continued in the restaurant Figueroa stated
that his guards were paid from $2 40 to $2 60 per hour to
start and received a maximum of $2 80 per hour 10 Figue-
roa parried questions with respect to wage progression As
this discussion was taking place, Figueroa was leafing
through a copy of the Blue Book and Loewenberg inquired
whether A-1 provided holidays, premium pay, uniform al-
9 The findings with respect to the early stages of the meeting in question
are based on the testimony of Alfred Figueroa, Jr, Marie Walldren, and
David Loewenberg I specifically credit the testimony of Figueroa to the
effect that the Blue Books were presented to him by Loewenberg during the
early phases of their meeting in the office , and that prior to departing the
offices Loewenberg informed Figueroa that, under any agreement with Lo-
cal 73, all employees would be covered I reject the testimony of Loewen-
berg which is at odds with these findings In evaluating the testimony of
Figueroa , on the one hand , and Loewenberg , on the other , I have carefully
considered the prehearing statement of Figueroa and the depositions of the
witnesses which are in evidence I found a general consistency in those
documents covering the testimony of Figueroa which lends support to the
generally credible testimony elicited at the hearing before me Indeed, as-
pects of the deposition of Loewenberg lend support to Figueroa 's testimony,
as, for example , the testimony of Figueroa to the effect that during the
office phase of the conversation , Loewenberg specifically inquired if the
employees were represented by another union, and showed irritation when
informed by Figueroa that A- 1 had a collective bargaining agreement with
the Independent
On the total record before me, however , I do not credit Figueroa 's testi-
mony to the effect that at the outset of their conversation Loewenberg or
Duff asserted that they were present for the purpose of representing the
employees of A-1 There is no reference to this asserted statement in either
Figueroa ' s prehearing affidavit or his deposition , and I am convinced that,
in attributing this observation to one of the union representatives , Figueroa
inappropriately characterized the nature of comments made during the ear-
ly phase of the meeting
On the other hand , I have evaluated the fact that Loewenberg is a skilled
and experienced labor negotiator with both training and empirical insight
into the nuances of 8(b)(4) and 8 (b)(7) situations While Loewenberg may
not have spoken in as direct and unvarnished a manner as Figueroa suggests
with respect to the purpose of the meeting, the consummation of a collec-
tive-bargaining agreement between A- 1 and Local 73 and the `all or noth-
ing" coverage of any Local 73 collective -bargaining agreement , I am con-
vinced that Loewenberg spoke to Figueroa in the sequence, manner, and
substance above found He did so , I am convinced , finding fortitude and
sustenance in the belief that, in any conflict of versions as between him and
Duff, on the one hand, and Figueroa, on the other, the word of the two
skilled professionals in the field might readily be accepted as against the
recall of one otherwise less sophisticated However , in totality , the impres-
sions and recollection of Figueroa with respect to this new labor relations
experience very likely made an indelible impression upon him which he was
later able to recall with clarity and certitude Significantly , Loewenberg
himself made no claim to having spoken to Figueroa in the early stages of
the conversation concerning "area standards" requirements Rather , his tes-
timony reveals a preoccupation at the outset over learning the wage and
benefit level maintained by A-1, and whether another union was in the
picture
10 The Blue Book hourly rate at hire was $2 45 and proceeded upward to
$2 65
lowances, and medical or health insurance Figueroa sup-
plied answers to Loewenberg 's questions , giving a summa-
ry of the benefits provided by A-1 in these respects On
each topic Loewenberg responded by contrasting the bene-
fit or allowance provided by the Blue Book provision
Loewenberg then asked Figueroa if he had any questions
relating to the Local 73 collective-bargaining agreement
which he was scrutinizing Figueroa made a reference to
the grievance procedure and also asked whether he would
have to belong to the Association or whether he could have
an "individual contract " Loewenberg responded that the
essential difference between the Association contract and
an individual contract would be in the application of the
grievance procedure Loewenberg further stated that if
A-1 desired to have an individual grievance procedure and
not be bound by the formal procedure of the Association
contract , this would be permissible Loewenberg asserted,
in this connection, that Local 73 would be satisfied as long
as A-1 had a grievance procedure covering its employees
As the conversation evolved further, Figueroa inquired
about automobile and travel allowances and some discus-
sion transpired with respect to vacations During the
course of the conversation in the restaurant, the provisions
of the Blue Book which had economic implications were
discussed and contrast was drawn between those benefits
as contained in the Blue Book to benefits provided by A-1
As the conversation developed in this latter regard, Duff
and Figueroa discussed areas of "variance" between the
provisions of the Local 73 agreement and the actual imple-
mentation requirements Duff specifically indicated that
latitude would be given Figueroa in providing a uniform
allowance but informed Figueroa that a uniform allowance
provision would be essential Additionally, Duff noted that
A-1 would be expected to provide a sick leave program for
its employees but some modification could be achieved in
the details thereof Finally, Duff discussed with Figueroa
the health and welfare provision In conjunction with this
discussion, Loewenberg assured Figueroa that Local 73
would not unduly burden A-1 economically by rendering
immediately effective all of the provisions of the health
medical plan which was encompassed within the Local 73
contract Loewenberg noted the willingness of Local 73 to
phase in certain facets of the program so as to render more
palatable the economic burden of the health plan Loewen-
berg labeled some differences in contractual requirements
as "minor" but defined the health insurance provision as
an important point of difference Loewenberg explained
that Local 73 was interested in an equivalent hospitaliza-
tion insurance program because members had the benefits
of the union health center which was restricted only to
union members and this would not be required of A-1
employees
After the conversation had proceeded for approximately
15 or 20 minutes, Loewenberg noted that it was the desire
of Local 73 to assist employers and he observed, in sub-
stance, that Local 73 often had inquiries from contractors
seeking guards and were thus in a position to recommend
specific guard companies Loewenberg noted that if A-1
and Local 73 consummated a collective-bargaining agree-
ment, A-1 would be the only Latin American company
under contract with Local 73 Loewenberg also stated that
GENERAL SERVICE EMPLOYEES UNION LOCAL NO 73 445
Local 73 was in a position to assist A-1 to grow , and that
the reason he was approaching Figueroa at the present
time was that A-1 was obtaining accounts which had
caused other guard companies to insist that Local 73 bring
A-1 in line with the terms of the Association contract In
this connection , Loewenberg asserted that the interest of
Local 73 was not in obtaining new members but in keeping
the prime accounts that they had Loewenberg also noted,
in substance, that the Independent , headed by Bradley,
was not an effective instrument for assisting guard compa-
nies to extend the scope or base of operations throughout
the Chicago area He noted that Local 73 had been effec-
tive in limiting Bradley's citywide expansion , and had ef-
fectively combatted a company whose employees were rep-
resented by the Independent in the effort of that company
to successfully bid Jobs
As the conversation drew to a close , Loewenberg stated
that it was not of principal importance to him whether or
not A-1 executed a contract with Local 73, but he asserted
that if A-1 commenced the Illinois Bell job on November 1
under the terms of the Independent contract he would have
to engage in area standards picketing Figueroa inquired
what Loewenberg meant by "area standards" and Loewen-
berg stated that he meant the standards which prevailed
under the Association agreement which they had been dis-
cussing Loewenberg informed Figueroa that he would like
to hear from him within a week so that he could gauge by
November 1 what to do The conversation terminated on
this note 11
Upon leaving the restaurant and departing the presence
of Loewenberg and Duff, Figueroa returned directly to his
office He immediately spoke to his sister and gave her a
brief, capsulized account of the conversation which he had
had Figueroa showed his sister the two copies of the col-
lective-bargaining agreement which had been presented to
him and speculated that the company was in jeopardy of
losing an account which it had been trying to obtain for 5
years Figueroa stated that if A- 1 did not sign up with
ii 1 have carefully considered the testimony of Alfred Figueroa , Jr, and
that of David Loewenberg and predicate the above findings primarily upon
the testimony of Figueroa I credit Loewenberg only to the extent that his
testimony is consistent with those findings For the reasons set forth at fn 9
supra, I attach no special weight to the testimony of Loewenberg by reason
of his greater professional insight into the subtleties of labor relations and
the asserted "improbability" of one so skilled and knowledgeable speaking
in so direct a fashion as described by Figueroa Moreover , I am convinced
that Loewenberg convened the meeting with Figueroa with a specific im-
portant objective in mind and pursued that objective with intentional , tacti-
cal bluntness In those instances wherein Loewenberg has specifically de-
nied certain utterances attributed to him by Figueroa in his testimony, I
credit the testimony of Figueroa In this context I specifically adopt the
testimony of Figueroa that Loewenberg and not Duff was the principal
participant in this conversation on behalf of the Union , and I do not accept
the implication contained in Loewenberg 's testimony that Duff was a prime
participant by reason of his asserted authority in the guard area of Local
73's operations I do note, however, that Duff was present during the entire-
ty of the conversation between Figueroa and Loewenberg and was in a
position to give testimony relating to the content of the conversation He
was not called and no explanation was given for his absence This carries
with it an adverse connotation which does nothing to bolster the testimony
of Loewenberg Rather , it suggests that in instances wherein Loewenberg
showed an absence of present recollection with respect to the participation
of Duff in certain colloquy or discussion , Duff s testimony would not neces-
sarily have been refutative of Figueroa's testimony
Local 73, a picket line would be established at the Illinois
Bell installations which A-1 serviced Figueroa noted that
A-1 had to "meet everything that's in" the Local 73 agree-
ment exactly as provided herein Whereupon , Figueroa
handed her a copy of the agreement and she perused it
They then engaged in a discussion about the advantages of
signing with Local 73 from the standpoint of being a Latin
American company As Figueroa entered the office and
spoke with his sister , he had a frown on his face and
seemed aggravated and disgusted 12
(3) Loewenberg and O 'Leary converse
Subsequent to speaking with Loewenberg , in mid-Octo-
ber O 'Leary verified the fact that A-1 had a collective-
bargaining agreement with the Independent In due course,
on October 29, they again spoke together
At the outset of the conversation , Loewenberg stated
that he understood that Bell Telephone had signed a guard
service contract with A-1 Loewenberg stated that he felt it
essential to pursue this because A-1 did not meet area
standards O'Leary asked what was meant by the term
"area standards" and Loewenberg stated that A-1 paid a
lower wage scale and did not provide vacations , holidays,
uniform allowances , or hospitalization O'Leary stated that
he did not know what was being provided under A-1's
union contract any more than he knew what any other
union provided Loewenberg insisted that A-1 did not
meet area standards and expressed concern that a public
utility company would permit the payment of substandard
wages Loewenberg suggested that since Illinois Bell had
contractual relations with Communications Workers of
America, O'Leary might desire to speak with one of the
officials of that labor organization O'Leary replied that he
did not think it was any business of CWA and Loewenberg
again returned to the concept of A-1's failure to meet area
standards In this regard , Loewenberg asserted that Local
73 could legally picket those locations where A-1 was pro-
viding guard services , but O'Leary expressed the opinion
that this would constitute an unlawful secondary boycott
Loewenberg insisted , however , that Local 73 could legally
picket the locations mentioned In this connection, Loew-
enberg requested O'Leary to provide him with the Bell
Telephone addresses where A-1 guards would be working
O'Leary declined to do so , stating this was out of his
hands He referred Loewenberg to the legal department
During the course of the conversation , Loewenberg stat-
ed that Bradley , head of the Independent, was subverting
his own people and Loewenberg raised the question wheth-
er the agreement between the Independent and A-1 was
not, in fact, a "sweetheart contract " O'Leary stated that
Illinois Bell was endeavoring to give business to minority
firms and Loewenberg stated that he could supply O'Leary
with a list of minority firms that complied with area stan-
dards Figueroa again asserted that the question which
Loewenberg raised with respect to the nature of the con-
tract between A-1 and the Independent was a "jurisdic-
tional" conflict between unions O'Leary noted that he had
i2 The foregoing is based on a composite of the credited and unrefuted
testimony of Alfred Figueroa , Jr, and Marie Walldren
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checked into the matter and found that A-I's employees
were represented by a union Loewenberg responded that
A-1 used union personnel only at those locations where it
was required by the employing company O'Leary stated
his lack of knowledge in this regard and asserted that all he
was concerned about was that A-1 had a union affiliation
Loewenberg reiterated his contention that he could legally
picket at the locations where A-1 was performing services
and again requested information concerning the locations
Loewenberg stated that he needed this information in or-
der to conduct legal picketing without involving Illinois
Bell with which Local 73 had no labor dispute 13
that if Schulson wanted to confine the pickets to locations
where A-1 would be working, he should provide the list
requested Schulson responded that if the Union picketed
where A-1 was not operating, this would be a secondary
boycott and that Illinois Bell would sue for damages
Loewenberg told Schulson that he would send a letter set-
ting forth the position of Local 73 and that Illinois Bell
could take it from there 14
On November 1, A-1 began providing guard service at
certain locations of Illinois Bell No picketing commenced
and Local 73 abstained from picketing at any of the loca-
tions
(4) Schulson speaks with Loewenberg
Following his conversation with Loewenberg, O'Leary
spoke with Steven Schulson, an attorney charged with la-
bor relations responsibilities for Illinois Bell O'Leary relat-
ed the essentials of the conversation which he had had with
Loewenberg and as a consequence of his discussion with
O'Leary, Schulson placed a telephone call to Loewenberg
in the early afternoon of October 29 During the course of
the conversation, Schulson informed Loewenberg that any
picketing at the facilities of Illinois Bell would be illegal
and that Illinois Bell considered the remarks which Loew-
enberg had made to O'Leary to be threats Loewenberg
replied that the picketing would be legal area standards
picketing and that no threats had been made to Illinois
Bell Loewenberg added that A-1 was not paying area
standards and that Figueroa was arrogant Schulson asked
what area standards Loewenberg was talking about and
Loewenberg replied that A-1 had a starting wage rate of
about $2 30 while the area standards were about $2 60 an
hour Loewenberg also asserted that A-1 had a contract
with an Independent union and applied the contract only
on certain jobs Loewenberg also stated that A-1 exploits
its employees and provides them no benefits Loewenberg
advised Schulson that under a recent decision of the Board,
Local 73 could not demand recognition if it admitted to
membership employees who were not guards Loewenberg
added that Local 73 did not want a contract with A-1 and
that it did not want recognition Loewenberg also told
Schulson that all Local 73 wanted was for A-1 to pay area
standards Loewenberg then asked Schulson for a list of
the locations where A-1 would be performing guard ser-
vices and Schulson replied that he did not have to give
such a list to Loewenberg Loewenberg told Schulson, how-
ever, that Local 73 would picket where it thought A-1
would be performing guard services for Illinois Bell and
13 The foregoing is based on a composite of the credited testimony of
Timothy 0 Leary and David Loewenberg I credit the version of each wit-
ness only to the extent consistent with the foregoing findings Specifically I
credit the testimony of O'Leary to the effect that it was Loewenberg who
suggested to O'Leary that Local 73 could provide O'Leary with a list of
minority firms I reject the testimony of Loewenberg to the effect that
O'Leary introduced this notion into the conversation and made an affirma-
tive request for such a list On the other hand, upon the relevant portions of
the record relating to the testimony of O'Leary, I find, contrary to certain
aspects of O'Leary's testimony that, in point of fact, during the course of the
conversation with Loewenberg, Loewenberg stated to O'Leary that he did
not care whether A-1 was unionized or not so long as it abided by area
standards
(5) The November 6 letter
On November 6, A-1 received a letter from Local 73
bearing the signature of the director of staff activities for
Local 73 which reads as follows
Please be advised as indicated previously that General
Service Employees Union, Local No 73, AFL-CIO,
has no desire to have you execute a contract with our
Local Our only concern with your agency is that you
provide benefits for your employees which meet pre-
vailing standards established by a contract between
Local 73 and a number of guard companies that it has
under contract We know as a result of our conversa-
tion with you that certain benefits provided for in our
contract are not provided by your agency for your
employees However, so there may be no misunder-
standing about this matter, we hereby make a formal
request for the following information
1 The hourly wages paid to your employees and
the classifications they belong in
2 What fringe benefits, if any, you provide for your
employees We are concerned primarily with such
things as paid vacations and holidays, provisions for
premium pay, when do employees get time and one-
half, i e, after eight hours, on Saturday and Sunday,
etc, holiday pay, reporting pay, sick leave provisions,
if any, a hospitalization program, if any, and details of
the hospitalization program relating specifically to
contributions by the employees and the company,
what provisions, if any, the company makes for pro-
viding and maintaining uniforms, car allowance, if
any, for employees who use their personal cars for
shelter, an auto allowance, if any, for car beatmen,
and any wage progression which you have for all new
employees This wage progression, if you have one, is
important to us in terms of hiring rate and the length
of time it takes the employees to reach the top of the
scale We want all wage information about hiring rates
and any wage progression which you have established
for your employees
When and if we receive this information from you, we
shall make a comparison of your benefits against the
benefits provided for under the union contract If the
benefits provided by your company meet the stan-
14
The foregoing is based on a stipulation of the parties introduced in
evidence at the hearing
GENERAL SERVICE EMPLOYEES UNION LOCAL NO 73 447
dards prescribed by our contract, we shall take no fur-
ther action in this matter If the benefits provided are
substandard, we shall be compelled to engage in area
standards picketing which means picketing at loca-
tions where guards are actively performing their duties
while in your employ Such picketing, of course, shall
be conducted in accordance with applicable Federal
laws
If you do not respond to this letter within one week
from the date hereof, we can only assume that you do
not wish to provide us with this information and we
shall be forced to conclude that your benefits are sub-
standard In that event, we would, of course, resort to
area standards picketing We trust that you will coop-
erate with us in furnishing this information and hope
further that it shall not be necessary for us to engage
in area standards picketing
Your cooperation in this matter is gratefully acknowl-
edged
Loewenberg drafted the letter It was received in due
course by Figueroa, who read the letter but made no re-
sponse to it
(6) Area standards considerations
Loewenberg testified that he received a complaint from
a company concerning A-1 as it related to the Illinois Bell
job and another job also 15 Loewenberg conceded that he
did not meet with the complaining company and did not
discuss with the company its bid on the Illinois Bell job or
the wage increment figure upon which the company's bid
was based
Loewenberg further testified that the area standards
maintained by Local 73 are essentially the area standards
that cover approximately 90 percent of the guards in the
metropolitan area of Chicago These guards are covered by
Local 73 collective-bargaining agreements and the stan-
dards are embodied in the agreements which Local 73 has
with members of the Association Loewenberg also testi-
fied that the concern which Local 73 has is that contractors
not meeting area standards can underbid companies signa-
tory to the Local 73 collective-bargaining agreement and
cause members of Local 73 to lose their jobs Loewenberg
further testified that when the Union obtains information
that a guard contractor has entered a bid on a particular
job, as many contractors as possible are contacted in order
to ascertain the "break even point" on the project, assum-
ing full payment of wages and fringe benefits It was
Loewenberg's testimony that through this method and by
applying a factor for average profit, the Union is able to
make a determination with respect to any specific bid
Loewenberg testified, in substance, that reports received
"from the field" had informed Local 73 that A-1 had made
bids on some jobs which indicated that A-1 could not be
offering the wage and fringe benefit levels deemed appro-
priate under the formula applied by Local 73 16
15 See In 8, supra
16 Loewenberg testified that he had been informed by Schulson that area
standards should be no problem with respect to the Illinois Bell jobs be-
Loewenberg conceded that at no time relevant herein
did he possess knowledge of the amount which A-1 had
bid on the Illinois Bell jobs He had not consulted directly
with Figueroa and he possessed no other direct informa-
tion at the time of his meeting with Figueroa, or when he
initially spoke with O'Leary, or on November 6 when the
letter from Local 73 was dispatched
2 The Moran case
a Background facts
Jack Moran is the proprietor and operator of Moran
Detective Agency Prior to 1968, Moran had an ownership
interest in a corporate entity also identified as Moran De-
tective Agency A portion of the employee complement of
the corporation were members of Local 73 and the corpo-
ration had a contractual relationship with Local 73 pur-
suant to which dues and fringe benefit deductions were
made on behalf of Local 73 members The corporation
ceased to exist in 1968 but payments of dues and health
and welfare deductions continued to be made to Local 73
for a period of time After a lapse of approximately 6
months, the presently existing individual proprietorship op-
erated by Jack Moran came into existence That company
has never had a contractual relationship with Local 73
However, some payments covering dues and health and
welfare obligations have been made to Local 73 by an asso-
ciate in the company There has existed at relevant times a
dispute between Local 73 and Moran over certain funds
allegedly due and owing 17
Moran is primarily engaged in providing guard services
to companies, or establishments, including St Bernard
Hospital situated in Chicago
b The Moran-Loewenberg conversation
On the morning of December 14, Jack Moran was called
by his dispatcher and told that a telephone call had been
received from David Loewenberg of Local 73 Loewenberg
had left a message and desired Moran to return his call
Moran did so immediately
In placing the telephone call to Local 73, Moran request-
ed to speak with Loewenberg and an individual who identi-
fied himself as Loewenberg came on the line After some
preliminary conversation with respect to the difficulty in
reaching Moran, Loewenberg stated that he wanted to get
Moran "straight with Local 73 " In substance, Moran re-
sponded that he did not know the meaning of this remark
Loewenberg continued, stating that the first thing to be
done was to sign a "current contract" and then to work out
a payment plan for Moran to pay the money due Local 73
Moran responded that, as far as he was concerned, he did
not owe Local 73 any money Thereupon, Loewenberg
made reference to an action involving the county attorney,
cause Illinois Bell was paying A-I a good dollar' for the jobs However
Loewenberg was unable to pinpoint whether this information came to his
possession before or after November 6, when the letter from Local 73 to
A-I was dispatched
17 The foregoing is based on the credited testimony of Jack Moran and
documentary evidence of record
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wherein Local 73 had charged that Moran Detective Agen-
cy had withheld money due to Local 73 Loewenberg reit-
erated that Moran had to execute a current contract and
Moran remained adamant, asserting that he did not have
to do so because he already had a contract with a union
Loewenberg inquired if the contract were with the Inde-
pendent and Moran answered that this was none of
Loewenberg's business Thereupon, Loewenberg asked if
the contract had been signed and Moran informed Loew-
enberg that it had been signed several months previously
Loewenberg observed that Moran was "letting himself in
for a lot of trouble" and displaying an improper attitude
Loewenberg stated that he and Moran should get together
and talk Moran answered that he did not feel that there
was anything else to discuss and terminated the telephone
conversation 18
c The December 16 letter
Thereafter, later in the day a messenger delivered a let-
ter, bearing the signature of David Loewenberg, to the of-
fice of Moran Detective Agency The letter requested in-
formation relating to wages and benefits provided by
Moran to its employees Contained in the letter was the
following
This letter is being sent for the purpose of determining
whether your agency complies with area standards It
is essential that you answer this letter promptly so that
if you are, in fact, complying with area standards, it
shall not be necessary for us to engage in area stan-
dards picketing Unless you respond to this letter by
no later than the close of business Thursday, Decem-
ber 19, 1974, we shall have no alternative but to infer
that you are not, in fact, complying with area stan-
dards and, therefore, leave us no alternative
d Loewenberg converses with Murken
On January 28, Daryl Murken, personnel director of St
Bernard's Hospital, received a telephone call from an indi-
vidual who identified himself as David Loewenberg At the
outset of the conversation it was established that Moran
provided guard services at the hospital Loewenberg there-
upon stated that Moran did not pay his employees wages
which conformed to area standards and that Local 73 was
attempting to have him do so Murken asked a question
relating to area standards and wage rates and Loewenberg
responded that he would like to know specifically what the
hospital was paying Moran He added that Local 73 would
attempt to find out what rates Moran was paying his em-
ployees Loewenberg also stated that if he could not get
Moran to pay area standards, Local 73 would have to pick-
et the hospital and would also picket at locations where
Moran's people were working With respect to the picket-
ing, Loewenberg stated that the hospital would be a truly
18 The foregoing is based on the credited and undisputed testimony of
Jack Moran The testimony was received not to support an independent
finding of a violation of the Act, but for its evidentiary value in assessing
whether or not there existed a labor dispute with the Charging Party as
distinct from St Bernard's Hospital, as hereinafter discussed
neutral party in every respect He added that Local 73 had
no interest in organizing Moran but simply wanted him to
pay area standards Loewenberg then stated that he sus-
pected that the hospital had legal counsel and, if so, he
would be glad to talk with counsel Murken asserted that
the hospital did, in fact, have an attorney but that he,
Murken, did not know his attorney's schedule After first
asserting that if he did not hear from Murken in 48 to 72
hours the hospital would be picketed, Loewenberg advised
Murken that if he did not hear from someone representing
the hospital by February 7 the hospital would be picketed
Murken told Loewenberg that he would be in touch with
someone and their conversation terminated
Following the conversation, Murken contacted Mervin
Bachman, attorney for St Bernard Hospital He recounted
to Bachman the essence of the conversation which he had
had with Loewenberg Following the initial telephone con-
versation, Murken and Bachman spoke together on other
occasions concerning this matter During the course of
those conversations, Murken informed Bachman that
Loewenberg had stated that the hospital would be treated
as a neutral and that Local 73 had no interest in organizing
Moran but was only interested in having Moran pay area
standards 19
e Bachman speaks with Loewenberg
After conversing with Murken concerning the contract
which he had received from Loewenberg, Bachman con-
tacted Loewenberg by telephone 20 Bachman informed
Loewenberg of the information which had been imparted
to him by Murken and asked Loewenberg to comment
Loewenberg stated that Local 73 was objecting to the fact
that Moran did not adhere to area standards and was
endeavoring to obtain information concerning the wage
rate paid by Moran Bachman informed Loewenberg that
he was not particularly interested in this aspect of the prob-
lem but was more interested in the statement which he had
made to Murken concerning the intention of Local 73 to
picket if information relating to Moran's income from the
hospital was not forthcoming Bachman informed Loewen-
berg that he was concerned about the effects of any picket-
ing on patient care and the possible impediment which it
would impose on finishing the building construction which
was then in progress Loewenberg responded by stating
that if he did not receive the financial information request-
ed by February 7 he would picket the hospital for the pur-
pose of protesting area standards Loewenberg articulated
19 The foregoing is based on the credited and undisputed testimony of
Daryl Murken In crediting Murken I find that, in point of fact, although
Murken had not previously spoken with Loewenberg and had no basis for
recognizing Loewenberg's voice, it was, in fact, Loewenberg to whom he
spoke on the occasion in question Respondent introduced no evidence to
counter this and the state of the record with respect to the placement of the
call by Murken, as well as testimony subsequently considered revealing that
a conversation transpired between Loewenberg and counsel for St Bernard
Hospital, is clearly adequate to serve as foundational support
Moreover, I credit Murken's testimony to the effect that during the con-
versation in question no reference was made to an organization designated
as HELP
201 affirm my ruling made at the hearing receiving Bachman's testimony
The conversation was not related to settlement of pending litigation and is
admissible
GENERAL SERVICE EMPLOYEES UNION LOCAL NO 73 449
his concept of area standards and asserted that the hospital
would be a completely neutral entity in the matter Loew-
enberg assured Bachman that he would observe all of the
Moore Dry Dock standards In return, Bachman stated that
he would endeavor to obtain the information which Loew-
enberg had requested in order to avoid any picketing
During the course of the conversation, a reference was
made to an organization known as HELP This reference
came in context of Bachman's articulated suspicion of
Loewenberg's activities in connection with the organiza-
tion, HELP, as it related to the indicated need to picket the
hospital Bachman stated that this raised a question in his
mind whether or not the picketing was organizational or
recognitional Loewenberg assured Bachman that there
was no basis for suspicion and added that if he started to
organize St Bernard's Hospital he would so inform Bach-
man 21
Conclusions
A The A-1 Security Case
It is an unfair labor practice under Section 8(b)(7)(C) of
the Act for a labor organization to threaten to picket any
employer where an object thereof is forcing or requiring an
employer to recognize or bargain with the labor organiza-
tion as the representative of his employees, or forcing or
requiring the employees of an employer to accept or select
such labor organization as their collective-bargaining rep-
resentative, unless such labor organization is currently cer-
tified as the representative of such employees, in circum-
stances wherein such picketing has been conducted
without a petition under Section 9(c) of the Act being filed
"within a reasonable period of time not to exceed 30 days
from the commencement of such picketing "
Similarly, it is an unfair labor practice under Section
8(b)(4)(ii)(B) for a labor organization to threaten, coerce,
or restrain any person engaged in commerce or in an in-
dustry affecting commerce, where in either case an object
thereof is to force or require any other employer to recog-
nize or bargain with a labor organization as a representa-
tive of his employees unless such labor organization has
been certified as a representative of such employees under
Section 9 of the Act
Under the General Counsel's theory of the case, the vio-
lations of the statutory provisions above described arises, if
at all, from threats to picket uttered by agents of Respon-
dent in furtherance of a recognitional object No picketing
in fact has transpired
In response to the General Counsel, Respondent con-
tends that the record evidence fails to support the allega-
tions of the complaint relating to the emanation of threats,
and asserts that the dialogue and correspondence which
transpired between A-i and agents of Bell Telephone, on
the one hand, and Respondent, on the other, constituted
nothing more than legally permissible efforts to persuade
A-1 to observe area standards It is Respondent's further
contention that such references to picketing as were en-
21 The foreoing is based on the credited and undisputed testimony of
Mervin Bachman
compassed within those exchanges related solely to permis-
sible area standards picketing
Contrary to Respondent, I find, upon the record evi-
dence, that Respondent harbored a recognitional object
and this object was incorporated in the threat which Loew-
enberg articulated to Figueroa, Junior, on October 29 and
which was given renewed currency and publication in
Respondent's letter of November 6 directed to Figueroa I
find that these threats constituted independent violations
of Section 8(b)(7)(C)
Notwithstanding this finding, however, while I conclude
that Respondent at all relevant times continued its recogni-
tional object, it was not manifested in any unlawful man-
ner on October 29 during the conversation between Loew-
enberg and O'Leary, and I find no violation of the Act
flowing from that conversation
As a predicate finding with respect to the 8(b)(7)(C) vio-
lation, I find, in agreement with the General Counsel, and
upon an application of the principle enumerated in Drivers,
Chauffeurs & Helpers, Local Union 639, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Dunbar Armored
Express, Inc), 211 NLRB 687 (1974), that because
Respondent admits to membership employees other than
guards, it was disqualified at times pertinent herein from
filing a petition on behalf of any of A-I's employees and,
accordingly, any threat by Respondent for the purposes of
recognition would be in violation of the Act This being so,
and because any representation petition filed by Respon-
dent in a unit of A-1 employees could never be considered
by the Board because of the statutory prohibition of Sec-
tion 9(b)(3) of the Act, no question concerning representa-
tion could be validly raised Under the rationale of Dunbar,
the barrier to certification was one which Respondent vol-
untarily imposed upon itself Therefore, the "reasonable
period" picketing requirement of Section 8(b)(7) of the Act
does not operate to insulate the threats herein from the
proscriptions of the statute
In a preliminary sense, moreover, the finding of an
8(b)(7)(C) violation must rest upon a resolution favorable
to the General Counsel on yet another legal issue which
stands as a precondition to any finding of an 8(b)(7)(C)
violation In this regard, the evidence establishes beyond
contradiction that, on July 25, A-1 extended recognition to
and signed a collective-bargaining agreement with the In-
dependent This recognition extended to guards who had
not yet been employed at installations of employers with
whom A-1 had contracted In this circumstance, it follows
that the "employees" of A-1 had given no authorization to
the Independent to serve as their collective-bargaining
agent and had had no voice in the selection of the Indepen-
dent as their representative It is to be remembered that the
charge upon which the gravamen of the 8(b)(7) allegation
of the complaint is based was filed within 6 months of the
July 25 execution of the collective-bargaining agreement in
question and the General Counsel was accordingly pre-
cluded from proceeding under Section 8(b)(7)(A) of the
Act-the Independent not having been lawfully recognized
by A-1 However, the General Counsel properly proceeded
under Section 8(b)(7)(C) of the Act because the threats
hereinafter found violative of Section 8(b)(7) had a recog-
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nitional object presupposing either recognition without
Board certification or a legally equivalent bargaining rela-
tionship continuing into a period of time after the com-
mencement of A-l's Bell Telephone guard service con-
tracts See General Service Employees Union, Local No 73,
affiliated with Service Employees International Union, AFL-
CIO (R R S, Inc Security & Investment Service Division),
Cases 13-CP-836 and 13-CP-277, issued December 27,
1974 (unpublished)
Proceeding to an evaluation of the merits of the 8(b)(7)
allegation, it is by now well established that picketing for
the sole purpose of requiring an employer to adhere to area
standards is lawful See, e g , Houston Building and Con-
struction Trades Council (Claude Everett Construction Com-
pany), 136 NLRB 321 (1962) However, the conduct of a
union in picketing or threatening to picket will be carefully
scrutinized to determine if the efforts were limited to seek-
ing compliance with area stardards, or whether there was
also present a proscribed recognitional object Retail
Clerks International Association, Local Union No 899,
AFL-CIO, et al (State-Mart, Inc d/b/a Giant Food), 166
NLRB 818, 822 (1967), enfd 404 F 2d 855 (C A 9, 1968)
Unlawful objective in picketing situations must be ascer-
tained from the context of the proceeding and subsequent
as well as attendant circumstances International Ladies'
Garment Workers Union, AFL-CIO (Coed Collar Compa-
ny), 137 NLRB 1698 (1962) Threats to picket for a pro-
scribed object are violative of Section 8(b)(7) of the Act
and it is not essential that the threatened picketing be car-
ried out United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local No 639 (American Modulars
Corporation), 203 NLRB 1112 (1973)
An analysis of the record evidence against the principles
above enunciated supports the finding, which I make, that
Respondent proceeded with respect to A-1 with a recogni-
tional object This conclusion is reached giving a full mea-
sure of acceptance to Respondent's assertion that the terms
of the Local 73 agreement-the Blue Book- were the
terms against which Local 73 measured area standards
conformance Respondent earnestly contends that in com-
municating with Bell Telephone, on the one hand, and
A-1, on the other, it was endeavoring merely to persuade
A-1 to conform to wage and benefit standards which
would not erode those applicable under the Local 73 agree-
ment and which, at the same time, would not serve to un-
dercut the competitive position of guard contractors who
had extended recognition to Local 73 The record reveals a
broader object
At the outset of his effort oriented to A-1, Loewenberg
on behalf of Respondent, during the course of his mid-
October conversation with O'Leary, the Bell Telephone
representative, manifested disapproval of the "non-union
affiliation" of A-1 and emphasized the firm's "non-affilia-
tion" with Local 73 22 This was followed in chronology by
22 That Loewenberg referred to the employing contractor merely as a
minority' firm does not foreclose this finding Upon the entire record, no
doubt can exist that it was A-1 about which Loewenberg was speaking
While I find no violation of the Act with respect to conduct involving Bell
Telephone this particular reference serves as background for subsequent
conduct directed towards A-1
Loewenberg 's effort at the beginning of the October 24
meeting with Figueroa to establish that A- I was not union-
ized The intemperate reaction of Loewenberg upon learn-
ing of the existence of a contractual relationship between
A-1 and the Independent gives a meaningful gloss to
Loewenberg's opening gambit and fortifies the finding,
which I make , that Loewenberg hoped, among other
things, to achieve recognition of Local 73 as bargaining
representative of A-l's employees , albeit without the bene-
fit of a Board certification See Truck Drivers Local 649,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Forest Rowan Concrete,
Inc), 210 NLRB 580 (1974), N L R B v Carpenters, Local
2133, United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, and Salem Building and Construction Trades
Council, AFL-CIO, 356 F 2d 464 (C A 9, 1965), cf Local
107, International Hod Carriers, Building and Common La-
borers' Union of America, AFL-CIO (Texarkana Construc-
tion Company), 138 NLRB 102 (1962)
To be measured against this backdrop is the further evi-
dence revealing that in the very early stages of the October
24 meeting Figueroa was presented by Loewenberg with a
copy of the Local 73 collective -bargaining agreement This
presentation had not been solicited and, as matters
evolved , the document became the essential foundation for
the discussions which followed Significantly , these discus-
sions were wide-ranged and covered many of the economic
provisions of the agreement As the record amply reveals,
the conceptual input of Loewenberg and Duff was that
these were the provisions which A- 1 must adopt as appli-
cable to its employees , and they were to be applied across
the board both with respect to guards serving contractors
who specified only union guards, as well as those who did
not While Respondent's agents indicated flexibility in a
few benefit areas , the flexibility was that accorded other
employers signatory to the Local 73 agreement Out of the
conversation evolved the notion that Figueroa could exe-
cute a separate contract incorporating the essential terms
of the Association contract One notable exception to this
was in the area of a grievance procedure wherein Loewen-
berg informed Figueroa that if he desired on behalf of
A-1 to evolve his own grievance procedure and not be
bound by that contained in the Association contract, he
would be free to do so
By engaging in a discussion of the noneconomic matter
of grievance procedure, Loewenberg made a telling disclo-
sure of an organizational objective , and this is not negated
by the fact that Figueroa may have made the initial inquiry
into the subject See N L R B v United Brotherhood of Car-
penters and Joiners of America, Local 745 AFL-CIO, 450
F 2d 1255 (C A 9, 1971), Local Joint Executive Board, Bar-
tenders and Culinary Workers of Las Vegas and Vicinity,
Subordinate to the Hotel, Restaurant Employees and Barten-
ders International Union, AFL -CIO, et al (Holiday Inns of
America, Inc), 169 NLRB 683 (1968)
But the thrust and purpose of Loewenberg 's visit to Fi-
gueroa on October 24 is not disclosed by the above evi-
dence alone, for the conversation evolved further into a
discourse upon the advantages which Local 73 could be-
stow upon A-1 as contrasted to the limitations and detri-
ment which would evolve upon an employer signatory to
GENERAL SERVICE EMPLOYEES UNION LOCAL NO 73 451
an agreement with the Independent Considered in its con-
text, this presentation by Loewenberg could be considered
as nothing but a veiled inducement to recognize Local 73
This recognition could flow from the adoption of the essen-
tials of the Local 73 agreement, either as an Association
member or on a separate, individual basis While Loewen-
berg was sufficiently deft and sophisticated to give his ver-
bal input an area standards veneer, he had made his recog-
nitional point to Figueroa and, upon this foundation,
introduced the concept that picketing would follow if A-1
embarked upon the Illinois Bell job on November 1 under
terms unacceptable to Local 73 The terms, as specified by
Loewenberg were, of course, in literal terms unadorned by
the verbiage and camouflage of Loewenberg's utterances,
those about which they had spoken-namely, the Blue
Book modified in minor respects by those variances which
had been discussed This approach is found to be recogm-
tional in nature and substance See Retail Clerks Interna-
tional Association, Local Union No 899, AFL-CIO, et al
(State-Mart, Inc, d/b/a Giant Food), supra
I find upon all of the foregoing that Loewenberg's threat
to picket on and after November 1, at the installations of
Bell Telephone at which A-1 would be providing guard
service, was in furtherance of a recognitional object and
violative of Section 8(b)(7)(C) of the Act
It is against this violation that the content and legitimacy
of the November 6 communication from Local 73 to A-1
must be measured I find, in agreement with the General
Counsel, that the letter contained material threats violative
of Section 8(b)(7)(C)
In this specific regard, and given the earlier manifesta-
tions of recognitional object, as found above, the following
passages assume significance
We know as a result of our conversation with you that
certain benefits provided for in our contract are not
provided by your agency for your employees
When and if we receive this information [wage, ben-
efits and allowance data] from you, we shall make a
comparison of your benefits against the benefits pro-
vided for under our union contract If the benefits
provided by your company meet the standards pre-
scribed by our contract , we shall take no further ac-
tion in this matter If the benefits provided are sub-
standard, we shall be compelled to engage in area
standards picketing which means picketing at loca-
tions where guards are actively performing their duties
while in your employ Such picketing , of course, shall
be conducted in accordance with applicable Federal
laws
A-I was given 1 week in which to respond In evaluating
these passages , weight must be given to the record evidence
which reveals that , except in essentially perfunctory fash-
ion, Loewenberg had undertaken no significant effort to
become apprised in an authoritative sense with respect to
the benefits offered its employees by A-1 23 Loewenberg
23 See Centralia Building & Construction Trades Council (Pacific Sign &
Steel Building Co, Inc) 155 NLRB 803, 806 (1965)
conceded that at no relevant time prior to the October 24
meeting had he become informed of the scope and nature
of the benefits provided by A-1, the cost factors which had
been operative, generally with respect to A-1's operations,
nor the income factors which would operate prospectively
under the Bell Telephone contracts In point of fact, Fi-
gueroa had indicated to Loewenberg on October 24 that, in
some respects, his wages exceeded those necessitated by
the Local 73 contract Moreover, such comparison as was
undertaken with Figueroa by Loewenberg was solely on
the basis of whether Figueroa was providing the benefits
paid in the Local 73 contract Throughout the discussion,
Loewenberg placed emphasis on the Local 73 benefits, in-
sisting by indirection at first but by veiled threat later, that
this was the package to be adopted if A-1 wished to avoid
the impact of a picket line Nor does the evidence reveal
that Respondent had an informational input from industry
sources sufficient to establish that Respondent had under-
taken the sort of inquiry as would have provided an inde-
pendent source of authoritative information The plain
facts of record are that the information received from those
miscellaneous sources within the industry were , of necessi-
ty, based on speculation and assumption with respect to
A-1's profit margins and operating expenses as to substan-
tially negate the reliability of the data 24
In all of the circumstances, it must be found that, prior
to dispatching the November 6 letter, Respondent had not
taken essential steps to ascertain from A-1 whether its em-
ployment conditions and benefits did, or did not, meet the
area standards The conclusion required by the record is
that, in corresponding with A-1, Respondent's true object
was to require A-1 to maintain the substantially identical
benefits as defined in Respondent's collective-bargaining
agreement then in effect with other guard entities in the
Chicago area That this conduct clearly reflects a purpose
to impose a bargaining relationship on an employer con-
trary to the provisions of Section 8(b)(7) of the Act is well
established Local Joint Executive Board, Bartenders and
Culinary Workers of Las Vegas and Vicinity, etc (Holiday
Inns of America, Inc ), supra, Retail Clerks International As-
sociation, Local Union No 899 (State-Mart, Inc d/b/a
Giant Food), supra Cf Steamfitters Local Union No 614,
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO (Trumbo Welding and Fabricating Com-
pany), 199 NLRB 1026 (1972)
On the other hand, I find no merit in the General
Counsel's contention that during the course of his conver-
sation with O'Leary on October 29, Loewenberg sought
unlawfully to enmesh Bell Telephone in the dispute which
Local 73 had with A-1 The record evidence relating to the
October 29 conversation reveals an effort on Loewenberg's
part to clearly disclose to O'Leary that, if picketing com-
menced at Bell Telephone installations where A-I's serv-
ices were being utilized, efforts would be made to confine
the picketing in a lawful manner While a recognitional
24 Cf Retail Clerks International Association, Local Union No 899, AFL-
CIO et at (State Mart Inc d/b/a Giant Food) supra Automotive Employees,
Laundry Drivers and Helpers, Local No 88 (West Coast Cycle Supply Co)
208 NLRB 679 (1974)
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
object with respect to A-1 is clearly discernible from
Loewenberg's offer to supply Bell Telephone with a list of
minority firms which met area standards, in the total con-
text of the discussion which transpired on October 29 be-
tween them, I am unable to conclude that this reference by
Loewenberg was susceptible of being found to constitute a
threat to picket a secondary employer-Bell Telephone 25
Rather, the overall thrust of Loewenberg's comments were
directed to wage and benefit standards and the desire of
Local 73 to protect them from erosion Loewenberg's state-
ment of intent to picket locations where A-1 was being
utilized in no manner gave a different caste to his refer-
ences with respect to the level of wages and benefits As I
evaluate the evidence concerning the October 29 conversa-
tion, I am convinced that Loewenberg, on this occasion,
contrary to previous instances involving A-I and Figueroa,
did not overstep the bounds of permissible conduct Rath-
er, the record suggests, and I find, that Loewenberg con-
fined his strategical efforts in pursuit of his organizational
object to his direct dealings with A-1 He was less aggres-
sive and more circumspect in his contacts with Bell Tele-
phone It is not essential to determine whether or not this
was dictated by the knowledge which Loewenberg pos-
sessed that O'Leary and Bell Telephone were working un-
der the guidance and advice of a skilled labor relations
attorney It is sufficient to find that the evidence of record
fails to establish a prima facie violation of Section
8(b)(4)(1i)(B) of the Act International Union of Operating
Engineers Local No 17, 17A and 17B, AFL-CIO, 210
NLRB 150 (1974), cf Local No 441, International Brother-
hood of Electrical Workers, AFL-CIO (Rollins Communica-
tions), 208 NLRB 943 (1974)
B The Moran Case
I conclude upon the record as a whole that the General
Counsel failed to sustain the allegations of the complaint
with respect to the violation of Section 8(b)(4)(n)(B) of the
Act In order to support a violation of that provision of the
statute, it is essential that the General Counsel establish a
threat or coercive or restraining act emanating from the
labor organization charged with the offense, and it is en-
cumbent also upon the General Counsel to prove that the
conduct was for an unlawful or proscribed object Upon
my view of the evidence, I am satisfied that the General
Counsel sustained his burden of establishing that Respon-
dent harbored a proscribed recogmtional object with re-
spect to Moran, but I am unable to conclude that this was
accompanied by an unlawful threat to picket directed at St
Bernard Hospital, a neutral to the ongoing dispute between
Local 73 and Moran The evidence leading to the conclu-
sion that Respondent harbored a recogmtional object with
respect to Moran is predicated upon a showing that, be-
yond insisting that Moran resolve matters with respect to
the dispute over funds allegedly due Local 73 by Moran's
enterprise, he also made a demand upon Moran that Mor-
25 Cf Truck Drivers Local 649 International Brotherhood of Teamsters
Chauffeurs, Warehousemen and Helpers of America (Forest Rowan Concrete
Inc), 210 NLRB 580 (1974)
an execute a collective-bargaining agreement with Local
73 Significantly, there is no showing that up to the point of
this contact Loewenberg had shown concern over Moran's
nonadherence to area standards It was not until after
Loewenberg had been informed by Moran that Moran had
executed a collective-bargaining agreement with another
labor organization that Loewenberg, on behalf of Respon-
dent, embarked upon his "area standards" tact In the cir-
cumstances described, I find that an object of
Respondent's dispute with Moran was recognitional and
proscribed
However, it is to be remembered that the issue here un-
der scrutiny is not one arising under Section 8(b)(7) of the
Act Rather, the vice under evaluation is the allegedly im-
proper threat to enmesh St Bernard Hospital, a neutral to
the labor dispute between Respondent and Moran The
evidence is not sufficient, in my view, to reveal a threat
bearing the connotation of proscribed activity Rather, I
am convinced that Loewenberg's remarks both to Murken
and to Bachman amounted to nothing more than permissi-
ble warnings of primary picketing to be directed exclusive-
ly against Moran to protest his failure to adhere to area
standards This picketing was to arise at a future time and
only in the event that the hospital should refuse to supply
the requested financial data deemed essential to an accu-
rate and complete analysis of Moran's compliance or non-
compliance with area standards
The General Counsel earnestly contends that the refer-
ences which Loewenberg made to picketing at the hospital
during the course of his separate conversations with Murk-
en and with Bachman must be construed as unlawful
threats by reason of Loewenberg's failure to give assur-
ances or use terms which revealed Respondent's intention
to direct the picketing exclusively to Moran or to specify
the location at the hospital where the picketing would tran-
spire Additionally, contends the General Counsel, Loew-
enberg unlawfully endeavored to enmesh a neutral by
threatening to picket in the event the hospital failed to
meet his specified deadline for furnishing financial infor-
mation concerning the hospital's service contract with
Moran The General Counsel construes the record evi-
dence too narrowly and I am constrained to find that he
failed to establish by the requisite preponderance of the
evidence that a violation of Section 8(b)(4)(ii)(B) of the Act
occurred
Under consideration is an area of statutory law wherein
reviewing authority has emphasized the need for careful
analysis of the context of the relevant events and subse-
quent as well as attending circumstances See International
Ladies Garment Workers Union, AFL-CIO (Coed Collar
Company), supra, International Brotherhood of Electrical
Workers, Local Union 861 (Plauche Electric, Inc), 135
NLRB 250 (1962) In this connection, I have carefully ana-
lyzed the conversation between Murken and Loewenberg,
and Loewenberg's subsequent conversation with Bachman
This analysis convinces me that Loewenberg's references
therein to "picketing the hospital" in the event that the
requested financial information was not forthcoming may
not realistically be separated from other statements which
explicate and refine Loewenberg's true meaning In this
regard, Loewenberg's references to picketing may not be
GENERAL SERVICE EMPLOYEES UNION LOCAL NO 73 453
separated for analytical purposes from the assurances
which emanated from Loewenberg that if the hospital were
picketed, the hospital would be treated as a neutral party in
every respect and that other locations where Moran's em-
ployees were working would also be subjected to picketing
In his conversation with Murken, Loewenberg explained
the reason for requesting the financial data from the hospi-
tal and he made clear to Murken that this information was
essential in assisting him to determine whether Moran was
adhering to area standards with respect to wage rates
Moreover, in speaking with Murken, Loewenberg disa-
vowed any interest in organizing Moran's employees Ad-
ditionally, in speaking with Bachman, Loewenberg ad-
vanced similar assurances and explanations In point of
fact, Loewenberg was more explicit in his assurances when
he spoke with Bachman, an experienced labor relations at-
torney In the course of this conversation, Loewenberg, in
effect, gave Bachman assurances against a disruption of
hospital construction then in progress by assuring Bach-
man that the hospital would remain in a neutral entity and
that Moore Dry Dock standards would be observed Given
these facts of record, the true meaning of Loewenberg's
picketing references emerge and I find no unlawful threat
deriving therefrom 26
I have carefully analyzed the precedents cited by the
General Counsel in his able brief to me and find critical
factual differences which render the cited cases clearly dis-
tinguishable See, e g, Independent Routemen's Association
(Urban Distributors, Inc), 206 NLRB 245 (1973), San Fran-
cisco Labor Council, AFL-CIO (ITO Packing Co, Inc and
Arden-Mayfair, 11l), 191 NLRB 261 (1971) Moreover,
viewing as I do the contextual setting of Loewenberg's
picketing reference and his request for financial data, I
find distinguishable the cited case of the United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, Local
No 639 (American Modulars Corporation), supra In Ameri-
can Modulars the affirmative action demanded of the em-
ployer therein by the respondent labor organization was a
requirement that employees on the project perfect their
union membership as a prerequisite for forestalling "infor-
mational picketing" at the jobsite In my view of the in-
stant record, no such demand may be inferred from the
conduct of Loewenberg Stated otherwise, I am unable to
construe Loewenberg's demand for financial data as the
equivalent of a demand that, to avoid picketing, St Ber-
nard Hospital use economic persuasion, direct or indirect,
to force Moran to recognize Local 73 or engage in a bar-
gaining relationship with Local 73 Being thus convinced, I
conclude that the instant case is not controlled by the ra-
tionale of American Modulars
Rather, I find that the instant case is controlled by the
principles underlying the Board's decision in Local Union
No 174, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Independent (V G
26 The General Counsel is, of course correct in his contention that the
mere fact that assurances were given by Respondent that Moore Dry Dock
standards would be adhered to is not dispositive of an 8(b)(4)(u)(B) issue in
the event unlawful threats of picketing were-contrary to fact-found to be
present International Brotherhood of Electrical Workers Local Union No 11
AFL-CIO (L G Electric Contractors Inc) 154 NLRB 766 (1965)
Scalf), 172 NLRB 1217 (1968) 27 I reach this conclusion
because the statements herein, like those in Scalf, portend-
ed nothing more than an intent to picket the primary em-
ployer at the jobsite in furtherance of a labor dispute with
that primary employer As in Scalf, it must here be con-
cluded that, because the primary picketing, if actually pur-
sued, would not be unlawful, the threats themselves were
not unlawful See District Council of Painters No 48 and
Paint Makers Local Union # 1232 (Hamilton Materials,
Inc), 144 NLRB 1523, 1524-25, enfd 340 F 2d 107 (C A 9,
1965), see also Sheet Metal Workers International Associa-
tion, Local No 284 (Quality Roofing Company), 169 NLRB
1014, 1015-16 (1968)
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
companies described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(7)(C) of
the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effec-
tuate the policies of the Act
Being of the opinion that the Respondent has shown a
tendency or proclivity to engage in conduct in violation of
Section 8(b)(7)(C) of the Act, I shall recommend a broad
cease-and-desist order See General Service Employees
Union Local No 73, affiliated with Service Employees Inter-
national Union, AFL-CIO (R R S, Inc, Security and In-
vestigation Service Division), Cases 13-CP-836, 13-CP-277,
issued December 27, 1974 (unpublished)
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the fol-
lowing
CONCLUSIONS OF LAW
1 Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act
2 A-1 Security Service Co, Illinois Bell Telephone
Company, Moran Detective Agency and St Bernard Hos-
pital are employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act
3 Since on or about October 24, 1974, Respondent has
demanded that A-1 recognize and bargain with it as the
representative of the guard employees of A-1 although Re-
spondent has not been at any relevant time the certified or
recognized collective-bargaining representative of said em-
ployees
4 Respondent admits into membership employees other
27 See also International Union of Operating Engineers Local No 17, 17A,
and 17B, AFL-CIO (Forelands Sewer and Water Construction Co, Inc), 210
NLRB 150 (1974)
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than guards and is barred by Section 9(b)(3) of the Act
from obtaining certification as the collective-bargaining
representative of employees in a bargaining unit of guards
5 Respondent violated Section 8(b)(7)(C) of the Act by
threatening on October 24 and November 6 to engage in
picketing against A-1 with an object of forcing A-1 to
recognize or bargain with Respondent as the representative
of Respondent's guards, or forcing or requiring the em-
ployees of A-1 to accept or select Respondent as their col-
lective-bargaining agent, although Respondent has not
been certified as a representative of such employees and
cannot be certified by virtue of Section 9(b)(3) of the Act
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
7 Except to the extent hereinabove found, Respondent
has engaged in no other conduct in violation of the Act
8 The allegations of the complaint and notice of hear-
ing in Case 13-CC-838 are without merit and I find no
violation of Section 8(b)(4)(ii)(B) of the Act flowing from
the evidence adduced in that proceeding
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended
ORDER28
Respondent, General Service Employees Union Local
No 73, affiliated with Service Employees International
28 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
Union, AFL-CIO, Chicago, Illinois, its officers, agents,
and representatives, shall
1 Cease and desist from threatening to picket A-1 Se-
curity Service Co, or any other employer, where an object
thereof is to force or require A-1 Security Service Co to
recognize or bargain with Respondent as the representative
of A-l's guards, or forcing or requiring employees of A-1,
or any other employer, to select Respondent as their collec-
tive-bargaining agent, although Respondent has not been
certified as the representative of such employees and can-
not be certified by virtue of the provision of Section 9(b)(3)
of the Act
2 Take the following affirmative action designed to ef-
fectuate the policies of the Act
(a) Post in conspicuous places at its business offices,
meeting halls and all places where notices to members are
customarily posted, copies of the attached notice marked
"Appendix " 29 Copies of said notice, on forms to be pro-
vided by the Regional Director for Region 13, shall, after
being duly signed by an authorized representative of Re-
spondent, be posted by Respondent immediately upon re-
ceipt thereof and be maintained by it for 60 consecutive
days thereafter Reasonable steps shall be taken by Re-
spondent to insure that such notices are not altered, de-
faced, or covered by any other material
(b) Sign and mail sufficient copies of said notice to the
Regional Director for Region 13, for posting by A-1 Secur-
ity Service Co, the company willing, at all locations where
notices to their employees are customarily posted
(c) 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
29 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading ` Posted by
Order of the National Labor Relations Board shall read ' Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "