General Service Employees Union Local No. 73

National Labor Relations Board - Board Decisions

Jan 31, 1979

240 N.L.R.B. 462 (N.L.R.B. 1979)

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Service Employees Union Local No. 73, affi-
liated with Service Employees International Union,
AFL-CIO and William Witsman d/b/a Active De-
tective Agency and Certain Teed Corporation.
Cases 13-CP-353 and 13-CC-1003
January 31, 1979
DECISION AND ORDER
On May 31, 1975, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Respondent filed exceptions and supporting
briefs and later filed answering briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings, and
conclusions 2 of the Administrative Law Judge, and
to adopt his recommended Order, as modified
herein.3
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, its officers, agents, and representatives,
shall take the action set forth in the said recom-
mended Order, as so modified:
Insert the following as paragraph 2(c) and reletter
the following paragraph accordingly.
"(c) Publish at its expense the terms of the notice,
in a form and size approved by the Regional Director
for Region 13, in a daily newspaper of general circu-
lation in the Chicago, Illinois, area. Pubiication is to
be made on 3 separate days within a 3-week period at
a time designated by the Regional Director."
CHAIRMAN FANNING, concurring in part and dissent-
ing in part:
I would not find that Section 8(b)(7)(C) prohibits
threats by a union to picket an employer with the
object of forcing or requiring that employer to recog-
nize the union as the exclusive bargaining representa-
tive of its guard employees. See my dissenting opin-
ion in General Service Employees Union Local No. 73,
affiliated with Service Employees International Union
A FL-CIO (A -1 Security Services Co.). 224 NLRB 434
(1976). Nor would I find that Section 8(b)(7)(C) bars
a nonguard union from engaging in any picketing to
gain recognition and bargaining for a unit of guards,
240 NLRB No. 55
for the reasons set forth in my dissenting opinion in
Drivers, Chauffeurs, Warehousemen and Helpers, Lo-
cal Union No. 71, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Wells Fargo Armored Service
Corporation) 221 NLRB 1240 (1975). Further, since
the Respondent herein could have lawfully engaged
in primary picketing against Active, I would not find
that its notification to Certain Teed, a neutral em-
ployer, of its intent to engage in such picketing vio-
lated Section 8(b)(4)(ii)(B) of the Act. In all other
respects I would affirm the Administrative Law
Judge's Decision and would dismiss the complaint in
its entirety.
|The Respondent and the General Counsel have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's resolu-
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dr, Wall Products, Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for revers-
inj his findings.
Members Jenkins, Penello. and Truesdale agree with the Administrative
Law Judge that the Respondent violated Sec. 8(bX7(C) of the Act. For the
reasons set forth in her dissent in General Service Emplyees Union Local No.
73 (A-I Security Service Co.). 224 NLRB 435. 437 (1977) and General Service
Emplovees Union Local No. 73 (Raine's Security Agencol 239 NLRB 1233
(1978). Member Murphy disagrees with this finding and would dismiss the
8(bH7)(C} allegations of the complaint. Members Penello., Murphy. and
Truesdale agree with the Administrative Law Judge that the Respondent
violated Sec. 8(b)(4(ii)(B) of the Act.
Contrary to the Administrative Law Judge, Members Jenkins, Penello,
and Truesdale find appropriate the General Counsel's requested remedy
that the Respondent be ordered to publish a copy of the notice in a newspa-
per of general circulation. General Service Employees Union Local No. 73
/Andc Frain. Inc ), 239 NLRB 295 (1978): General Service Lmnploees L',Ulio
Local No 73 Rainers' Securia Agencvl 239 NLRB 1233 (1978). Member
Murphy. for reasons set forth in her dissent in General Service Employees
Union Local o. 7 (Andv Frain, /Inc.), supra at fn. 2. would not require such
publicatison.
DECISION
STATEMENT OF THE CASE
THOMAS D JOHNSTON. Administrative Law Judge: These
consolidated cases were heard at Chicago, Illinois, on De-
cember 5 and 6, 1977,' pursuant to a charge filed on Sep-
tember 20 in Case 13-CP-353 by William Witsman d/b/a
Active Detective Agency (herein referred to as Active) and
a charge filed on September 20 in Case 13-CC-1003 by
Certain Teed Corporation (herein referred to as Certain
Teed) and a consolidated complaint issued on September
28.
The consolidated complaint alleges that General Service
Ertployees Union Local No. 73, affiliated with Service
Employees International Union, AFL-CIO (herein re-
ferred to as the Respondent), which admits into member-
ship employees other than guards, demanded that Active
recognize and bargain with it as the collective-bargaining
IAll dates referred to are im 1977 unless otherwise stlated
GENERAL SERVICE EMPLOYEES UNION LOCAL NO. 73 463
representative of the guard employees of Active and threat-
ened to picket Active and its customers, including Certain
Teed, with objects of (I) forcing Active to recognize or
bargain with the Respondent as the representative of
Active's guard employees in violation of Section 8(b)(7)(C)
of the Act, and (2) forcing or requiring Certain Teed to
cease doing business with Active and/or to force or require
Active to recognize and bargain with the Respondent as
the representative of its guard employees in violation of
Section 8(b)(4)(ii)(B) of the Act.
The Respondent, in its answer filed on October I I, de-
nies having violated the Act as alleged.
The issues involved are whether the Respondent violated
Section 8(b)(7)(C) and Section 8(b)(4)(ii)(B) of the Act by
unlawfully threatening to picket Active or its customers,
including Certain Teed, for the proscribed objects alleged.
An additional issue, which was raised in a motion by the
Respondent at the outset of the hearing and on which rul-
ing was deferred, was whether the contents of a conversa-
tion between representatives of the Respondent and Active
were inadmissible as evidence under Rule 408 of the Fed-
eral Rules of Evidence on the grounds that the conversa-
tion was held for the purpose of settlement negotiations.
Upon the entire record in these cases, from my observa-
tion of the witnesses, and after due consideration of the
briefs filed by the General Counsel, Certain Teed, and the
Respondent, I hereby make the following:
FINDINGS OF FACT
I. THE B SINESSES OF THE EMPLOYERS
Active, with its office and place of business located at
Park Forest, Illinois, is engaged in the business of provid-
ing detective, security guard, and other services. During
1977. a representative period, it will, in the course of its
operations, perform services valued in excess of $50,000,
for employers who meet the Board's jurisdictional stan-
dards except solely the indirect outflow or indirect inflow
standards.
Certain Teed, a Maryland corporation, with a facility
located at Chicago Heights, Illinois, is engaged in the busi-
ness of producing asphalt roofing and other materials.
During 1976, a representative period, it shipped goods and
materials, valued in excess of $50,000. directly from its Chi-
cago Heights' facility to points located outside the State of
Illinois.
Active and Certain Teed are each employers engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II THE LABOR ORGANIZATION INVolVED
The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
-Active did not submit a brief.
IUnless otherwise indicated the findings are hbased upon pleadirglfs. .d-
missions, sipulaliorns, and undisputed eidence conilined in the record
which I credit
11. HE INFAIR LABOR PRACTI(CFS
A. Background
Active, which is located at Park Forest, Illinois, is en-
gaged in the business of providing detective, security
guard, and other services. Included among its official and
supervisory personnel are William Witsman, the licensee
and owner. Catherine Hunt, the bookkeeper and accoun-
tant, and Carl Hunt, the office manager.
By September, Active employed approximately 25
guards including both full-time and part-time guards.
These guards spend their working time at Active's various
accounts which are located away from its office.
Certain Teed, which is located at Chicago Heights, Illi-
nois, is engaged in the business of producing asphalt roof-
ing and other materials. Its plant manager is Daniel Pofel-
ski.
Since November 1974 Certain Teed has employed secur-
ity guards of Active to perform services for Certain Teed at
its Chicago Heights facility.
The Respondent is a labor organization which admits
into membership employees other than guards. Included
among its officials and representatives are Irving Kurasch,
the president, Harry Kurshenbaum, the business manager,
David Loewenberg, the general counsel, Richard Wesley, a
business representative, and James Myles, a business repre-
sentative.
B. Threats Made to Active
On August 17 the Respondent deposited in the mail a
letter addressed to Active in which it informed Active that
it had reason to believe Active did not comply with area
standards in the employment of guards in the area, re-
quested Active to send to it certain information to de-
termine whether it met such standards, and implied if Ac-
tive was not complying with the area standards the
Respondent would engage in area standards picketing.
However, Active's bookkeeper Catherine Hunt, Owner
Witsman, and Office Manager Carl Hunt all credibly de-
nied that Active had received such letter which was sent by
regular mail.
Active's bookkeeper Catherine Hunt testified that on the
morning of September 15 she received a telephone call
from a man who identified himself as Mr. Loewenberg
from the Respondent who said he wanted to talk but did
not tell her what it was about. After informing him she was
busy she requested his telephone number and informed
him that she would call him back. However, she then asked
attorney Harvey Sussman, who represented Active, to han-
dle the matter, furnishing him the telephone number Loew-
enberg gave her.
Nespondent's general counsel Loewenberg did not deny
having such a telephone conversation with Catherine Hunt
and acknowledged that he had spoken with attorney Suss-
man on the telephone that day whereupon a meeting was
arranged for that night.4
Attornes Su rsnla. did not pccificll .I , tcls about he arrangements
for Ihis eeting
464 DECISIONS OF NAl IONAI. I.ABOR RELATIONS BOARI)
C(atherine HIunt further testified that that afternoon she
received a telephone call from a man who identified him-
self as Mr. Myles from the Respondent. According to Hunt
the caller told her that IHarvey Sussman had called Loew-
enbherg hack and said they would set up a meeting and he
was calling to find out when. Upon informing the caller
that Sussman had called her and told her they requested a
meeting but that it would have to he set up at Sussman's
convenience, the caller again asked when. After she replied
she did not know the caller said they were not going to wait
forever, and if they did not have the meeting they were
going to start picketing. Catherine Hunt was unable to fur-
ther identify the caller.
Respondent':; representative. James Myles, who was al-
leged to have made this telephone call, denied having mnade
such a telephone call to Catherine Hunt. I credit his denial.
On the evening of September 15 a meeting was held in
the office of attorney Sussman between representatives of
the Respondent and Active. Present for Active, besides at-
torney Sussman, were Owner Witsman, Office Manager
Carl Hunt, and bookkeeper Catherine Hunt. The Respon-
dent was represented by business representative Wesley
and general counsel I.oewenberg.
Loewenberg testified that at the outset of the meeting.
after informing them the Rspondent had an area stan-
dards problem with Active and pursuant to attorne
Sussman's inquiry, he explained what that meant, he asked
whether thes could have a settlement conference pursuant
to the rule, and mentioned while lie was not really that
familiar he knew there was a F:ederal rule 6(8 or 408.
When Sussman, who stated he was not a labor lawyer, de-
nied understanding or knowing what the rule meant. Loew-
enberg explained it meant that any evidence or any conver-
sation ils the result of their discussions would not be
admitted, he believed, in any proceedings. Sussmlan then
mentioned that he was a personal injury lawyer and said it
was like a settlement conference to which I.ocwenherg
agreed. Sussman then stated that he had participated in
many settlement conferences and asked did that mean the,
were off the record, whereupon Loewenberg replied it did.
According to ILoewenberg Sussman then turned to his
clients and asked if thes understood that it was going to be
an off-the-record discussion, whereupon they all agreed.
Representative Wesley corroborated general counsel
Loewenberg's testimony concerning this agreement.
Attorney Sussman testified that about 10 or 15 minutes
after the meeting started oewenherg asked him if this
could be off-the-record to which he agreed. Sussman de-
nied that anything else was said regarding the nature of the
meeting or that any ederal rules of evidence were men-
tioned. Under cross-examination Sussman acknowledged
that he was not familiar with Rule 408 of the Federal Rules
of Evidence and denied it was his understanding that mat-
ters discussed in an off-the-record discussion were not to
be used in evidence. According to Sussman he had never
had a conversation with another attorney before where
there was an agreement to go off-the-record and stated
off-the-record settlement discussions could be used in the
AUioril , Sussi did io1 icst. f cilicrnTllng Ihc jhltccl .,llt ot the
nlmeeting itelf
litigation bh bringing them to the attention of the judge
although juries were insulated from such discussions. Suss-
man explained his understanding of the request to go off-
the-record was that through earlier telephone conversa-
tions that day he felt that they were engaged in something
that might have been improper or illegal which l.oewen-
berg did not vwant brought up later and felt he ought to
protect his clients and go off-the-record if that was what
l oewenberg wanted.
Both Catherine Hunt and Carl Hunt acknowledged that
early in the meeting oewenberg requested that the meet-
ing he off-the-record, whereupon attorney Sussman agreed.
Witsman, who acknowledged his memory witas vague about
the matter, also testified that in the early part of the meet-
ing I.oewenberg had asked Sussman whether this could be
off-the-record.
Regardless of whether any FIederal rule of evidence was
mentioned, such evidence clearly establishes there was an
agreement between the parties at the outset of the meeting.
and I so find, that the conversation would be off-the-rec-
ord.
During this meeting various subject matters were dis-
cussed. General counsel loewenberg pursuant to attorne
Sussman's inquiry, informed them that the Respondent
represented over 90 percent of the industry and the area
standards which it required were those benefits contained
in its collective-bargaining agreement with the Associated
(u iard and Patrol Agcncies and its health and welfare [I'o-
gr t Inl.
When L.oewvenberg mentioned the Respondent had sent
Active a letter in August. discussed supra, about whether
Active was complying with the area standards, Active's
representotives denied having received such a letter. Ac-
cording to C'atherine Hlunt, I.oewenhberg told them that Ac-
ti'e was not a unioln conpan; . it as putting union compa-
ines in jeopardy hby nol par iTg local standards, and it could
underbid an account.
I.ocwenberg whose testimlion was corroborated by busi-
ness representative Wesley. informed them if the could
demonstrate the' were meeting area standards they would
walk awa,N. iider cross-examination both (atherine Hunt
and (Carl ilunt acknowledged that I.oewcnberg either said
or could have said that if the ('ompany could show it met
area standards the Respondent would leave it alone. ath-
erine unt further stated that I.oewenberg told them if
the, complied with their standards they would send them a
letter of complianice; on another occasion she added that
locwenberg also said no one ever had or would. oewen-
berg denied using such an expression.
Respondent's representatives furnished Active's repre-
sentatives with a copy of the Respondent's collective-hbar-
gailing agreement with the Associated (;uard and Patrol
Agencies and its health and welfare program, who, in turn.
furnished Respondent's representatives with a cops of the
benefits Active provided for its own employees. These ben-
efits were then compared and discussed. Differences point-
ed out were in the insurance benefits wherebhy the Respon-
decnt's plan, unlike Actixe's, was noncontributory and
provided for maternity benefits. There were also differ-
ences between sick lecae policies; also Active did not pay
for cleaning uniforms, ils required by the Respondent.
GENFRAI. SERVICE EMPI.OYE:ES UNION IOCAL NO. 73 465
However, Active also provided certain benefits for emplo -
ees which the Respondent did not, such as reimbursement
for certain school and travel expenses.
Witsman testified that when attorney Sussman men-
tioned Active was in compliance. Loewenberg responded
by saying their insurance benefits did not compare with the
Respondent's. and he mentioned that they did not have
maternity benefits. According to Witsman upon asking
that if they complied with the policy whether Loewenherg
would let them off the hook. Loewenberg said they were
too small and could not get that kind of policy. Loewen-
berg denied making the latter statement. Carl Hunt also
testified that when Sussman proposed that the Respondent
forget about Active because it was meeting area standards,
the Respondent's representative informed them it was not
meeting area standards because of maternity insurance.
Loewenberg stated that when Sussman mentioned it
looked like they were meeting the area standards he de-
nied it and told them that they were below area standards
mentioning that Active's sick leave policy was discretion-
ary and not fixed like the Respondent's. and there was a
difference in hospitalization with the guards having to pay
whereas their policy was noncontributory.
Catherine Hunt testified that upon asking Loewenberg
why they had not contacted their employees if they wanted
them to join a union, Loewenberg's response was that there
was a Federal law which put guards in their own category
and they could not approach the guards individually to
join a union. Witsman stated that he had asked Loewen-
berg that question, whereupon Loewenberg replied it was
impossible because it violated the Taft Hartley Act and
they could not contact security guards to have an election.
Catherine Hunt stated that upon suggesting to Loewen-
berg that she would furnish him with a desk and he could
take a vote of the employees on payday to see if they want-
ed a union, he informed her that he could not because it
was against the law. Upon offering to take the vote herself.
she stated that Loewenberg replied they would have to join
the Union because they could not fight them financially
since they were a small company and did not have money.
Under cross-examination Catherine Hunt acknowledged
that Loewenberg had informed her neither she nor he
could hold an election in the office with the employees
because it would be against Federal law. Both Witsman
and Carl Hunt testified that they questioned Loewenberg
about holding an election. According to Witsman Loew-
enberg informed him it was not the proper procedure;
proper procedure would be to sign a contract and give
cards to the employees to fill out. Carl Hunt stated that
Loewenberg told him there was some kind of law pertain-
ing to security officers, they could not hold such an elec-
tion. and they were going to have to join the Union be-
cause they' were below area standards.
Both Loewenberg and Wesley denied saying that Active
had to join the Union. Wesley stated that when Witsman
asked why they could not sign the guards up themselves,
Loewenberg replied it did not fall under the Act and made
no sense.
Catherine Hunt and Carl unt testified that I.oewen-
berg told them he would furnish them with cards for the
employees to sign and have pa),roll deductions taken out.
l'heY, along with Witsmian each testified that thes asked
l.oewcenberg whether they had to fire employees who did
not want to join the Union, whereupon Loewenherg told
them they did. (atherine Hunt also stated that upon com-
menting she thought Illinois was a union shop. I.oewen-
berg replied it would not be in security.
Loewenberg's version was that upon being asked by
Witsman about the procedure regarding a contract, he in-
formed them that he would suppl) cards which the em-
ployees would be expected to sign for dues checkoff; when
asked by Witsman about those employees who did not
want to sign, he told them they would talk to the employees
and if it did not work out they would send a letter to the
Company asking that the employee be terminated.
Other companies were also discussed at the meeting.
Both Catherine Hunt and Witsman stated that Loewen-
berg had mentioned other companies had spent money
fighting the Respondent but ended up by joining the Re-
spondent. Loewenberg testified that when Carl Hunt com-
plained about the Respondent leaving other companies
alone, he mentioned that they had audited the books of
one company and found there were problems about their
not putting people in the Union.
Catherine Hunt testified that Witsman mentioned he
was not going to bother fighting and guessed he would just
have to live with the fact Loewenberg was going to close up
their security accounts, whereupon Loewenberg replied all
the ones he had and all the ones he may ever pick up unless
they joined them. Loewenberg. whose testimony was cor-
roborated by Wesley, denied making such statement.
Loewenberg's request to audit their books was denied.
although Catherine Hunt offered to hire a private CPA.
Catherine Hunt stated that Loewenberg said if they did
audit the books, he guaranteed they would find something
else besides a difference in maternity benefits and either he
would audit their books or there would be no letter of com-
pliance (Loewenberg denied this).
Carl Hunt stated that Loewenberg told them the Re-
spondent was organizing in a suburban area and they' were
going to have to join the Union. He also testified. without
stating specifically what was said, that Loewenberg made it
clear they did not feel they could fight the Respondent
financially and they were going to join if they were going
to stay in the security business. Carl Hunt also stated that
Loewenberg said Active was below area standards. Both
Loewenberg and Wesley denied such statements were
made.
Witsman testified that upon telling Loewenberg it did
not matter what the area standards were because Loewen-
berg had to take everybody, Loewenberg's response was
they had 80 percent of the agencies at the present time, and
they would have everybody in the area in the Union.
Loewenberg himself testified that after \Witsman told
him it looked like what Loewenberg really wanted was a
contract, the' discussed it. and he told Witsman that what
he realls wanted was a contract. However. .ocwenberg
further stated that Witsman informed him that li he was not
going to sign a contract and did not like the idea of nlot
heing able to hold an election. l.oewenber al) :,tated thatllll
durin the conversation hen ('atherine HIunt mentioned
with did not thes join the Uniotn aild nilhvbe the could get
466 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
some time, he told her he would give them 90 days on the
health and welfare.
Wesley also testified that Witsman told Loewenberg that
the bottom line was Loewenberg wanted them to sign a
contract, whereupon Loewenberg agreed. According to
Wesley, Witsman also told them he would never sign a
contract with them.
The subject of picketing was also discussed at this meet-
ing.6
Catherine Hunt testified that Witsman asked Loewen-
berg why he was picketing Active's accounts instead of
their office, whereupon Loewenberg responded by asking
what good would that do them and stated their accounts
would not drop them if they were at their office instead of
their sites. However, Witsman's version was that when he
asked Loewenberg why he was not going to picket Active
instead of picketing their clients, Loewenberg's response
was that it would not serve any useful purpose. Carl Hunt
also testified when Witsman asked Loewenberg why he did
not picket their office, Loewenberg asked what good would
that do him.
Loewenberg, however, stated that when Witsman asked
why they did not picket at the offices, he informed him the
reason they did not was because there were no guards there
and the picketing would have no impact.
Catherine Hunt also testified that Loewenberg said they
would be picketing their accounts, who would drop them,
and unless they joined the Union then before going to any
court action they would have already lost all their security
accounts. Witsman stated that Loewenberg told him that
he could go into court and try to get an injunction but the
Union would tie them up for a year and in the meantime
they would be picketing their accounts. Witsman further
testified that upon mentioning that if he did not sign a
contract and force the employees to join the Union that
Loewenberg was going to picket his clients forcing them to
drop him and putting him out of business, Loewenberg
informed him that was the way it was and mentioned other
companies had fought and had to join.
Witsman also testified that when Carl Hunt brought up
picketing their accounts, Loewenberg told him that under
the law they had a right to notify their clients they did not
meet area standards, and mentioned if they did not meet
area standards the Respondent would picket his company
at those locations wherever the guards were located.
Catherine Hunt stated that Loewenberg told them pick-
ets would go up at their accounts, the accounts would drop
them as soon as the pickets went up because the accounts
were not going to lose business because of Active, and ac-
counts would rather drop Active as an agency and get an
agency with a union rather than lose business themselves;
once the pickets went up at Certain Teed or the Sheraton
Motel their truckdrivers would not deliver things, their
people would not come in, and the accounts themselves
would be financially hurt. They would drop them, and that
was how he was going to either have them join the Union
or lose their accounts.
Prior to the meeting, the Respondent had not engaged in .aln plcketig
regarding Active or its accounts nor did it engage in .inrs stuch picketilg
following the meeting.
Carl Hunt testified that Loewenberg mentioned many
times that if they did not join the Respondent, they would
picket their accounts, causing them to lose their accounts
and naturally they would be out of the security business.
Witsman also testified that Loewenberg said they either
had to sign a contract with the Respondent or they would
picket their clients.
Under cross-examination both Carl Hunt and Witsman
denied the Respondent threatened to picket Active; Wits-
man acknowledged that he was the one who first men-
tioned picketing during the conversation, and that the Re-
spondent wanted Active to join the Union.
Both Loewenberg and Wesley denied that Loewenberg
made the statements attributed to him by Catherine Hunt,
Carl Hunt, and Witsman concerning the picketing. Ac-
cording to Loewenberg, Catherine Hunt and Witsman kept
saying they were going to picket them and it would just be
a matter of time until they drove them out of business.
Loewenberg stated that he told them they would never
picket their accounts but would picket Active at the ac-
counts if they had a dispute with them and could not re-
solve it. Loewenberg also stated that when Witsman said
he knew they were going to picket them and asked about
picketing their accounts, he informed Witsman they were
going to picket Active and not picket the accounts.
Wesley stated that during the conversation Loewenberg
explained to them that if they could not arrive at an under-
standing that night, they would and could picket Active at
their accounts, mentioning area standards picketing.
To the extent the foregoing testimonies of Active's repre-
sentatives, Owner Witsman, Office Manager Carl Hunt,
and bookkeeper Catherine Hunt and the testimonies of Re-
spondent's representatives, general counsel Loewenberg
and Business Representative Wesley are conflicting con-
cerning what transpired at this meeting, I find the versions
of Loewenberg and Wesley more credible. Apart from my
observations of the witnesses in resolving credibility, the
testimonies of Witsman, Carl Hunt, and Catherine Hunt
were conflicting in many instances about what was said as
well as who said it; also, Catherine Hunt was evasive and.
on occasion, contradicted her own testimony.
The meeting ended with attorney Sussman promising to
give Loewenberg its decision the next morning.7
About September 29, Active received a letter from the
Respondent stating that the Respondent had no interest in
representing its employees or entering into a contract to
represent its employees, but stated its dispute with Active
was over its failure to meet area standards, requested cor-
rective action be taken, and implied action would be taken
against Active to enforce area standards.
C. Threats Made to Certain Teed
Certain Teed received a letter in the mail dated Septem-
ber 12 from Respondent's business manager, Kurshen-
baum, advising that it had an area standards dispute with
Active, and in furtherance of such dispute, it intended to
I hc bhali. of the decision is in dispute with the Respondent's representia-
IScs h h I; c;laCed it was to decide whether to comply wl ith a;rela tandards:
Ali 's r icprcenlatiscs claimed it was to decide whether to enter IlIt ;
lollcclie-h.llfiielin[g agreemcnt with the Respondent.
GENERAL SERVICE EMPLOYEES UNION LOCAL NO. 73 467
picket Active at such times and places when the guards of
Active were located on the premises of Certain Teed.8 The
letter also stated the picketing would be conducted in ac-
cordance with applicable laws and urged the Company's
officials if there was any interference with production to
contact Charles Bonesz, Richard Wesley, or Business Man-
ager Kurshenbaum. The letter stated it wanted to again
emphasize their dispute was only with Active and no other
employer, and the picket signs would clearly reveal this
point. The letter further stated that if the location of the
Company's facilities prevented effective communication
with employees of Active regarding the nature and charac-
ter of the dispute, the Respondent shall be obligated to
conduct their activities on the Company's property in a
peaceful and nonviolent way; and if the Respondent's rep-
resentatives should be threatened with arrest Respondent
would have no alternative but to file unfair labor practice
charges against Certain Teed. The letter further provided
as follows:
Since organization or representation of the employ-
ees of Active Detective Agency is not our object nor is
it our intent to in any way interfere with your work or
production, we trust that area standards picketing
conducted on your property in a peaceful manner will
not cause your company to interfere in any way with
our representatives.
Certain Teed's Plant Manager Pofelski testified that
about September 16 he received a telephone call from a
man who identified himself as Rick Wesley of the Respon-
dent and asked Pofelski whether he had received a letter
indicating their position with Active. Upon replying he
had, the caller said that Active did not meet area standards
and mentioned they had had a meeting the previous night
in an attempt to settle the dispute, but that nothing could
be agreed upon and Active had walked out on them. The
caller said that they had no alternative but to picket Active
at their accounts, and they would be out at Certain Teed's
plant the next morning with pickets. After telling the caller,
pursuant to his inquiry, that Active's guards were located
within the Certain Teed's premises, the caller informed him
they would picket there. Pofelski stated that he told the
caller that would be trespassing and he would not allow it.
The caller then mentioned a court ruling gave them the
right to picket on private property, with which he dis-
agreed, and told the caller he was afraid some of the em-
ployees would honor the picket line and go home, causing
serious problems of a work stoppage. and they would have
to shut the plant down. The caller's response was that their
dispute was with Active and not with Certain Teed: he said
he would not stop employees from crossing the picket line.
but he would not force them to cross it either.
Business Representative Richard Wesley. 9 who is alleged
to have made telephone threats to picket, did not deny
making such a call. Since the Respondent's letter to Cer-
tain Teed mentioned the name of Richard Wesley and
Wesley had attended the meeting with Active's officials the
The Respondent adinitled it had no dispute slih ( errin I ccd
At the hearing Richard Wesle} wa, referred to hb Respolndent (ncial
(ounsel Ioewenherg a Rick Wesle
previous evening to which the caller referred, and absent
any denial by Wesley, I credit the testimony of Plant Man-
ager Pofelski, and I find that he had had such a telephone
conversation with Business Representative Wesley.
D. Analysis and Conclusions
The General Counsel contends that the Respondent
threatened to picket Active and its customers, including
Certain Teed, with objects of (I) forcing Active to recog-
nize or bargain with the Respondent as the representative
of Active's guard employees in violation of Section
8(b)(7)(C) of the Act, and (2) forcing or requiring Certain
Teed to cease doing business with Active and/or to force
or require Active to recognize and bargain with the Re-
spondent as the representative of its guard employees in
violation of Section 8(b)(4Xii)(B) of the Act. The Respon-
dent, however, denies having violated the Act as alleged
and asserts as its defense that it had a lawful dispute with
Active over Active's alleged failure to comply with area
standards.
The threshold issue to be resolved is whether the state-
ments made by the representatives of the Respondent and
Active at their September 15 meeting are inadmissible un-
der Rule 408 of the Federal Rules of Evidence as the Re-
spondent contends.
This rule provides as follows:
Evidence of (I) furnishing or offering or promising
to furnish, or (2) excepting or offering or promising to
accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed
as to either validity or amount, is not admissible to
prove liability for or invalidity of the claim or its
amount. Evidence of conduct or statements made in
compromise negotiations is likewise not admissible.
This rule does not require the exclusion of any evi-
dence otherwise discoverable merely because it is pre-
sented in the course of compromise negotiations. This
rule also does not require exclusion when the evidence
is offered for another purpose, such as proving bias or
prejudice of a witness, negativing a contention of un-
due delay. or proving an effort to obstruct a criminal
investigation or prosecution.
The Board has held that the contents of discussions
which are part of bona fide settlement negotiations are in-
admissible under Rule 408 of the Federal Rules of Evi-
dence. Building and Construction Trades Council of Philadel-
phia and Vicinity, AFL-CIO (Aliemost Construction Co.),
222 NLRB 1276. footnote 1 (1976).
While the findings supra establish that the parties had
agreed that their discussions at the September 15 meeting
would be off-the-record, the only conceivable matter in
dispute at the time such agreement was entered into was
whether Active met those area standards espoused by the
Respondent which would neither be unlawful nor give rise
to a violation under the Act. Under these circumstances
and absent. as here, any pending. threatened, or antici-
pated filing of unfair labor practice charges or other legal
proceedings. I find that Rule 408 was not applicable to the
situation, and the mere agreement to have the discussions
468 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
off-the-record, standing alone, cannot be invoked by the
Respondent to shield or insulate it from liability for any
unlawful statements its agents may have made at the meet-
ing by excluding such statements as evidence. Therefore, I
reject Respondent's argument and find contrary to its posi-
tion that the statements made at the September 15 meeting
were admissible as evidence.'0
The next issue discussed is whether the Respondent vio-
lated Section 8(b)(7)(C) of the Act by threatening to picket
for the proscribed recognitional object alleged, or whether
Respondent's conduct, urged as its defense, had as its ob-
ject to require Active to comply with the Respondent's area
standards.
Section 8(b)(7)(C) of the Act provides as follows:
It shall be an unfair labor practice for a labor orga-
nization 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 requiring an employer to
recognize or bargain with a labor organization as the
representative of his employees, or forcing or requir-
ing the employees of an employer to accept or select
such labor organization as their collective bargaining
representative, unless such labor organization is cur-
rently certified as the representative of such employ-
ees:
(C) where such picketing has been conducted with-
out a petition under section 9(c) being filed within a
reasonable period of time not to exceed thirty days
from the commencement of such picketing: Provided,
That when such a petition has been filed the Board
shall forthwith, without regard to the provisions of
section 9(c)(1) or the absence of a showing of a sub-
stantial interest on the part of the labor organization,
direct an election in such unit as the Board finds to be
appropriate and shall certify the results thereof: Pro-
vided further, That nothing in this subparagraph (C)
shall be construed to prohibit any picketing or other
publicity for the purpose of truthfully advising the
public (including consumers) that an employer does
not employ members of, or have a contract with, a
labor organization, unless an effect of such picketing
is to induce an)' individual employed by any other
person in the course of his employment, not to pick
up, deliver or transport any goods or not perform any
services.
It is well settled that Section 8(b)(7)(C) of the Act does
not prohibit picketing conducted for the sole purpose of
compelling an employer to comply with area wage and
benefit standards. (entralia Building and (onstructton
Trade Council v. N. I..R.B., 363 .2d 669, 701 (D.C. ('ir.
1966). Ilowever. Section 8(b)(7)(C(') of the Act does make it
unlawful for a labor organization, which cannot bhe certi-
fied under Section 9(b)(3) of the Act 1' as the collective-
II I Ba,cd u. I hidr n d fo thce in ci[ , [i1dcil', notHiq III xc lde .,,.1 u d CI¥cc, -ll , A},I, ], [[Iil111L1' IJ I rcto.l v t
bargaining representative because it admits into member-
ship both guards and nonguards, as in the instance case, to
threaten to picket an employer for the proscribed recogni-
tional object. International Brotherhood of Teamsters Local
344 (Purolator Securitv. Inc.), 228 NLRB 1379 (1977), enfd.
561 F.2d 31 (7th Cir. 1977): and General Service Employees
Union Local No. 73, affiliated with Service Employees Inter-
national Union, AFL--CIO (A-I Security Service Co.), 224
NLRB 434 (1976), enfd. 97 LRRM 2906, 83 LC 10,375
(D.C. Cir. 1978).
While the findings supra establish that the subject of area
standards was discussed at the September 15 meeting be-
tween representatives of the Respondent and Active, the
evidence further establishes, based upon the testimonies of
both general counsel Loewenberg and Business Represen-
tative Wesley, that the Respondent's object, notwithstand-
ing their statements to the contrary about area standards,
which I reject, was to get Active to recognize the Respon-
dent as the bargaining representative of its guard employ-
ees and to enter into a collective-bargaining agreement
with it. In this respect, Loewenberg acknowledged discuss-
ing a contract, informing them employees would be ex-
pected to sign dues checkoff for the Respondent or be ter-
minated, and offered to give them 90 days on the health
and welfare benefits if they joined; both Loewenberg and
Wesley admitted that when l.oewenberg was asked by
Witsman if what he really wanted was a contract, Loewen-
berg agreed that that was what he wanted.
Since the evidence supra establishes that both general
counsel Loewenberg and Business Representative Wesley
further admitted telling Active's officials and representa-
tives at the September 15 meeting that they were going to
picket Active at their accounts, and having found the rec-
ognitional object of their conduct, I find that the Respon-
dent thereby violated Section 8(b)(7)(C) of the Act by its
threats to picket Active for a recognitional object.' 2 Since
the Respondent's conduct was not for the purpose of truth-
fully advising the public that Active did not employ mem-
bers of or have a contract with it and because the Respon-
dent was barred by Section 9(b)(3) of the Act from being
certified to represent Active's guard employees, the con-
tention argued in its brief that the second proviso of Sec-
tion 8(b)(7)(C) of the Act precludes finding a violation is
without merit.
The remaining issue is whether the Respondent violated
Section 8(b)(4)(ii)(B) of the Act by making threats to Cer-
tain Teed to force or require Certain Teed to cease doing
business with Active or to force or require Active to recog-
nize and bargain with the Respondent as the representative
of its guard employees.
Section 8(b)(4) of the Act makes it an unfair labor prac-
tice or a union:
SI' 'I(ilt3) ol lliC t a ciplxIdc.. I clinclt l pll . 1. ll ,, t I l rgi-
1i/111 .11i111 l lc ciihficd ' t, I lhe r Crl, cintlla.i c of(, clii, lcc,, ii. hlrg.illill
Hi/il ,f Ji.lld, If IiCh ornIi,;ll[Ii ll 1J11 1 tl IlIClIihcr.hlp r I l f .L tlii cd
,iirccilx iT IlldliTcclk IIi i i n s 11i/11 *h hilh dlll 11ii1 nii t ic I}}crxllp.
\ :hilc the Rcpoltcidenil uci Xc1 , ill 1C clr ,iull i SctllClihcl 2q i-
].11lm idl l t (ll t intoolM 1lcli i eqII IIICCe o i hliilln l ,tl.ntact
] hlld Il1[l >tCh kCtle t. lilh did not l llpl Io rcl lt ,> rCCvg11 , l N III0I IA.
ol)[cI.'~.1 .'l lid I l 1t .1
'
he "Cll"'l'~lil . rI l lr i%.C tld11:1ltc
GENERAL SERVICE EMPLOYEES UNION LOCAL NO. 73 469
.. (ii) to threaten, coerce, or restrain any person . . .
where in either case an object thereof is:
* * * * *
(B) forcing or requiring any person to cease using.
selling, handling, transporting, or otherwise dealing in
the products of any other producer, processor, or
manufacturer, or to cease doing business with an)
other person, or forcing or requiring any other em-
ployer to recognize or bargain with a labor organiza-
tion as the representative of his employees unless such
labor organization has been certified as the represen-
tative of such employees under the provisions of sec-
tion 9: Provided, That nothing contained in this clause
(B) shall be construed to make unlawful, where not
otherwise unlawful, any primary strike or primary
picketing .
While a union is permitted to picket a primary employer
with which it has a labor dispute, it violates Section 8(b)(4)
of the Act if it threatens to picket a neutral employer with
a proscribed object of enmeshing that employer in a con-
troversy not its own. General Teamster, Warehouse, and
Dairy Emnplovees nion Local No. 126, affiliated witMh the
International Brotlherhood of Teamsters, (hauffeurs, Ware-
housemen and Helpers of America (Readv Mived Concrete,
Inc.), 200 NLRB 253. 254 (1972).
The evidence supra establishes that Respondent sent
Certain Teed a letter. dated September 12, informing it that
the Respondent intended to picket Active at Certain Teed's
premises: this statement was repeated by Busintss Repre-
sentative Wesley to Certain Teed's Plant Manager Pofelski
about September 16. Although both the letter and Business
Representative Wesley's statements gave as the reason for
its intentions to picket the claim that Active did not meet
area standards, having found previously that the Respon-
dent had threatened to picket Active at its accounts for a
proscribed recognitional object, I find that the Respon-
dent, by such conduct directed to Certain Teed, attempted
to enmesh Certain Teed, a neutral employer, in its dispute
with Active: it thereby threatened Certain Teed with pick-
eting for an object of forcing or requiring Active to recog-
nize and bargain with the Respondent as the representative
of its guard employees. thereb 5 violating Section
8(b)(4)(ii)(B) of the Act. Hlaving found a proscribed recog-
nitional object for Respondent's conduct and having dis-
credited the testimonies of Active's representatives about
the subject matter discussed at the September 15 meeting. I
do not find any evidence sufficient to show or to infer that
Respondent also had as its object to force or require ('er-
tain Teed to cease doing business with Active as alleged.
I t 1111 1-[(I I f 1 I if F t NI AIR I H()OR PRA( it IS 'ON
(()MMI Rt
The activities of Respondent set forth in section III.
above, found to constitute unfair labor practices occurring
in connection with the operations of Active and (ertain
'Feed described in section I. haec a close, intimatc. and
substantial relationship to rade. traffic, and comrnmerce
among the several States aid tend to lead to labor dispute,.
burdening and obstructing commerce and the free flow
thereof.
CoNCLUSIONS o Lw
1. William Witsman d/b/a Active Detective Agency
and Certain Teed Corporation are each employers engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. General Service Employees Union Local No. 73. affil-
iated with SService Employees International Union, AFL-
CIO. is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent admits into membership employees other
than guards, and under Section 9(b)(3) of the Act cannot
be certified as the collective-bargaining representative of
employees in a unit comprised of guards.
4. By threatening to picket William Witsman d.'b/a Ac-
tive Detective Agency at its accounts with an object of
forcing or requiring it to recognize and bargain with the
Respondent as the collective-bargaining representative of
its guard employees. when the Respondent has not been
certified as the representative of such employees and can-
not be so certified by virtue of. the provisions of Section
9(b)(3) of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(7)(C) of
the Act.
5. By threatening to picket Certain Teed Corporation
with an object of forcing or requiring William Witsman
d. b/a Active Detective Agency to recognize and bargain
with Respondent as the representative of its guard employ-
ees. Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(4)(ii)(B) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Tit REME[DY
The General Counsel urges, as opposed by the Respon-
dent, that a broad remedial order be issued against the
Respondent. Those cases cited in support, which involve
the same sections of the Act 3 herein found to have been
violated, are as follows: General Senice Enploees ULnion
bIcal N'(o. 7 affiliated withl Service Emploees International
Union, .Fl CIO (Andy Frain Inc.). 230 NLRB 351 (1977).
finding violations of Section 8(b)(4)(i) and (ii)(B) and Sec-
tion 8(b)(7)(C) of the Act; General Service Emplo 'ees nion
l('al N(o. 7, affiliated with Service Emploee International
Union, .4 FL (10 (A-I Security Service Co.), 224 N LRB 434
(1976)., enfd. 97 LRRM 2906. 83 LC 10,375 (D.C(. Cir.
1978). finding violations of Section 8(b(7)(7C) of the Act:
and (eneral Service Entmplo( ees Union, Local (i o. 7?. a{/ilil-
ed ith Service Emploiees International nion, FL ( '10
(R R.,'.. Inc.. Scurit tin/ Int. sligalton Servie )ivision).
J.I). 795 74 issued Dec. 19. 1974 (unpublished). finding
violations oIf Section 8(b)7)(7(C' and X(b4)(i) and (ii)(B) of
the Act.
I' (alIICm. i (llnc].cl 1 Itc i t.I tst. .I1tc' r I 11iiC c11t' .Ii
I ihcr .rll rltlr o kL dIil[ c ,if l C ll i CtI 1.] 1 thI Nt 1 1, Itllxt.id hCic I
1l. ~ l,, 1r [O1StiLdcq 1l}d )II
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wherever the facts of a particular case or prior decisions
against a respondent based upon similar unlawful conduct
in the past establish a proclivity to violate the Act, a broad
remedial order is appropriate. Brotherhood of Teamsters &
Auto Truck Drivers, Local No. 70, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America (Sea-Land of California, Inc.), 197 NLRB 125
(1972), enfd. 490 F.2d 87 (9th Cir. 1973).
Having found in the instant cases that the Respondent
has engaged in certain unfair labor practices within the
meaning of Section 8(b)(7)(C) and Section 8(b)(4)(ii)(B) of
the Act and in view of its prior violations set forth supra of
these same sections of the Act, I find the totality of its
conduct establishes a proclivity to violate these sections of
the Act. Accordingly, I shall recommend a broad remedial
order and that it cease and desist therefrom and take cer-
tain affirmative action to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 14
The Respondent, General Service Employees Union Lo-
cal No. 73, affiliated with Service Employees International
Union, AFL-CIO, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Threatening to picket. picket, or causing to be pick-
eted William Witsman d/b/a Active Detective Agency. or
any other employer where an object thereof is to force or
require Active Detective Agency, or any other employer, to
recognize or bargain with the Respondent as the represen-
tative of their guard employees, or forcing or requiring the
guard employees of Active Detective Agency, or any other
employer, to accept or select Respondent as their collec-
tive-bargaining representative when Respondent has not
been certified as the representative of such employees and
cannot be certified by virtue of the provisions of Section
9(b)(3) of the Act.
(b) Threatening, coercing, or restraining Certain Teed
Corporation, or any other employer or person engaged in
commerce or in an industry affecting commerce where an
object thereof is to force or require William Witsman
d/b/a Active Detective Agency, or any other employer, to
recognize or bargain with the Respondent as the represen-
tative of their employees unless the Respondent has been
certified as the representative of such employees under the
provisions of Section 9 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its Chicago, Illinois. facilities, copies of the
attached notice marked "Appendix." '5 Copies of said no-
tice, on forms furnished by the Regional Director for Re-
gion 13 shall, after being duly signed by Respondent's au-
thorized representative, be posted immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places. including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Furnish signed copies of the notice to the Regional
Director for Region 13, for posting by William Witsman
d/b/a Active Detective Agency and Certain Teed Corpo-
ration, said employers be willing, at all locations where
notices to its 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.
IT IS FURTHER ORDERED that the consolidated complaint
be, and hereby is, dismissed insofar as it alleges unfair la-
bor practices not specifically found herein.
14 In the event no exceptions are filed as provided by Sec. 102.46 ,f 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.
i In the event that this Order is enforced by a judgment of the United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to picket, picket, or cause to
be picketed William Witsman d/b/a Active Detective
Agency, or any other employer, where an object
thereof is to force or require Active Detective Agency,
or any other employer, to recognize or bargain with
General Service Employees Union Local No. 73, affi-
liated with Service Employees International Union,
AFL-CIO as the representative of their guard employ-
ees, or force or require the guard employees of Active
Detective Agency, or any other employer, to accept or
select Local No. 73 as their collective-bargaining rep-
resentative when Local No. 73 has not been certified
as the representative of such employees and cannot be
certified by virtue of the provisions of Section 9(b)(3)
of the National Labor Relations Act, as amended.
WE WILL NOT threaten, coerce, or restrain Certain
Teed Corporation, or any other employer or person
engaged in commerce or in an industry affecting com-
merce, where an object thereof is to force or require
Active Detective Agency, or any other employer, to
recognize or bargain with Local No. 73 as the repre-
sentative of their employees unless Local No. 73 has
been certified as the representative of such employees
under the provisions of Section 9 of the National La-
bor Relations Act, as amended.
GENERAL SERVICE EMPLOYEES UNION LocaL. No 73,
AFFILIATED WITH SERVICE EMPIOYEES INTERNAFIONAI.
UNION. AFL-C(IO