Service Employees

National Labor Relations Board - Board Decisions

Sep 30, 1999

329 N.L.R.B. 638 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638
Service Employees International Union, Local 525,
AFL–CIO; Service Employees International Un-
ion, AFL–CIO, CLC and General Maintenance
Service Company, Inc.

Service Employees International Union, Local 525,
AFL–CIO; Service Employees International Un-
ion, AFL–CIO, CLC and Lerner Enterprises
Limited Partnership, Theodore N. Lerner, Mark
D. Lerner, Albert Abramson and Gary Abram-
son, d/b/a Washington Square Limited Partner-
ship and The Lenkin Company Management,
Inc. Cases 5–CB–6558, 5–CB–6584, 5–CB–6712
(1,2), 5–CC–1118 (1,2), 5–CC–1119, and 5–CC–
1120
September 30, 1999
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
On November 6, 1992, Administrative Law Judge Ar-
line Pacht issued the attached decision. The General
Counsel filed exceptions, the Charging Parties filed
cross-exceptions, the Respondents filed an answering
brief,1 and the Charging Parties filed a reply brief.2 The
Respondents filed exceptions, the General Counsel filed
an answering brief, and the Respondents filed a reply
brief. The Respondents filed a motion to dismiss or, al-
ternatively, for leave to adduce new evidence. The
Charging Parties filed an opposition brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,3 and conclusions4 as
modified below, to adopt the recommended Order as
modified, and to issue a new notice.5

1 The General Counsel filed a motion to strike certain portions of the
Respondents’ answering brief, and the Respondents filed a brief oppos-
ing this motion. We deny the General Counsel’s motion to strike.
2 The Respondents also filed a motion to strike the Charging Parties’
cross-exceptions, and the Charging Parties filed a brief in opposition to
the motion to strike. We deny the Respondents’ motion.
We similarly deny the Respondents’ motion to dismiss or, alterna-
tively, for leave to adduce new evidence regarding the appropriate
remedy.
3 The General Counsel and the Respondents have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 363 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
In sec. VI,C, of her decision, the judge finds that the Respondents
engaged in secondary activity at the White Flint Shopping Mall and at
the Indian Springs Athletic Club. As no unlawful conduct is alleged to
have occurred at these locations, we do not adopt these findings.
4 The judge, contrary to her analysis and findings, found in her pro-
posed conclusions of law that the Respondents violated Sec. 8(b)(1)(A)
on November 1, 1990, when their trash bag hit a Washington Square
patron. We have deleted this finding. We further find that the Novem-
ber 8, 1990 “handcuffing” incident outside Washington Square is in-
cluded in the November 7 to 14, 1990 picketing found violative of Sec.
8(b)(4)(i) and (ii)((B).
1. For the reasons stated by the judge, we agree that
the Respondents did not violate Section 8(b)(1)(A) on
April 4, 1990,6 by allegedly attempting to impede a Gen-
eral Maintenance employee from crossing their picket
line.7 We similarly agree that the Respondents did not
violate Section 8(b)(1)(A) or (4): by their October 25
(noontime), 26, and 29 rallies outside the Washington
Square building; or by organizer Kevin Brown’s com-
ments during their October 25 after-work rally. We fur-
ther agree with the judge that the Respondents did not
violate Section 8(b)(4) by: (a) their October 19 visit to
Washington Square offices; (b) their November 2 dem-
onstration outside 2301 M Street, N.W.; or (c) their No-
vember 6 distribution of flyers at the Bethesda, Maryland
headquarters of The Lenkin Company Management, Inc.8
2. For the reasons stated by the judge, we agree that
the Respondents violated Section 8(b)(1)(A), (4)(i), and
(ii)(B) by: (a) their October 31 picketing of the PMI-
managed garage in Washington Square; (b) the Novem-
ber 1 “trashing” incidents at Washington Square, 1130
Connecticut Avenue, N.W., and 1133 Connecticut Ave-
nue, N.W.;9 and (c) the November 8 “handcuffing” inci-
dent at Washington Square. We further agree that the
Respondents violated Section 8(b)(4)(i) and (ii)(B) by

5 We have substituted a new Order and notice, reflecting all of the
violations found, and tailoring the judge’s recommended 8(b)(4)(i) and
(ii)(B) remedy to language the Board has followed in other similar
cases. See, e.g., Sheet Metal Workers Local 19 (Delcard Associates),
316 NLRB 426, 439 (1995), modified on other grounds 154 F.3d 137
(3d Cir. 1998).
Also, we shall modify the judge’s recommended Order in accor-
dance with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
6 All dates are in 1990 unless noted.
7 Although the judge incorrectly stated that General Maintenance
employee Selene McCullough did not testify that Union Representative
Paul Scully touched her as she attempted to cross the picket line, we
find that this error does not affect our conclusion.
In dismissing this 8(b)(1)(A) allegation, we do not rely on Musicians
Local 76 (Jimmy Wakely Show), 202 NLRB 620 (1973).
8 Contrary to dissenting Member Brame, Member Hurtgen finds
nothing in the conduct of the Respondents’ supporters, when delivering
a sealed envelope at the Washington Square offices of Property Man-
ager Sandra Reed on October 19, that had the “reasonably foreseeable
effect” of threatening, coercing, or restraining Washington Square or its
property manager within the meaning of Sec. 8(b)(4)(ii)(B). Further, to
the extent that Member Brame relies on the Respondents’ 8(b)(4)(B)
conduct at other locations to support this allegation, Member Hurtgen
notes that those violations postdate the October 19 incident. Addition-
ally, as to the November 2 incident outside 2301 M Street, and the
November 6 incident at Lenkins’ headquarters, he agrees with the judge
that they fall within the ambit of permissible activity under Edward J.
DeBartolo Corp. v. Florida Coast Building Trades Council, 485 U.S.
568 (1988).
9 We adopt the judge’s finding, however, that the Respondents did
not violate Sec. 8(b)(1)(A) by assaulting a Washington Square patron
with a trash bag. There is no evidence that any employee observed this
assault.
329 NLRB No. 64
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 639
picketing the Monument-managed parking garage at
1701 L Street, N.W., on November 2 and by picketing
Washington Square on the evening of October 25.10
3. We further find that the Respondents violated Sec-
tion 8(b)(4)(i) and (ii)(B) by: (a) picketing the Washing-
ton Square building on the evenings of November 7 to
14;11 (b) demonstrating at the Aspen Hill Racquet Club
on November 8; (c) their November 15 conduct in the
law offices of Arent, Fox; and (d) the November 1, 14,
and 16 demonstrations outside the homes of Albert and
Ronald Abramson.12 For the reasons stated by the judge,
we find that this conduct violated Section 8(b)(4)(B)13

10 We simply reject dissenting Member Liebman’s conclusion that
none of the Respondents’ conduct is violative of Sec. 8(b)(4)(i)(B).
Thus, an express inducement of employees to strike is not a necessary
predicate to a finding that they were induced or encouraged by a union
to withhold their services from the targeted employers particularly
where, as here, that was the foreseeable consequence of the Respon-
dents’ conduct. Cf. Warshawsky & Co. v. NLRB, 182 F.3d 948 (D.C.
Cir. 1999).
Contrary to the comments of our dissenting colleague, we do not
suggest that all 8(b)(4)(ii) conduct will necessarily be 8(b)(4)(i) con-
duct. For example, if a union threatens a neutral, and there are no em-
ployees who hear or observe the threat, it could not be said that the
union was seeking to induce or encourage employees to do anything.
However, the Unions’ conduct here was open and notorious and a
foreseeable consequence of it was to appeal to employees to withhold
their services.
11 The General Counsel has excepted to the judge’s failure to find
that the Respondents’ picketing outside Washington Square from Octo-
ber 30 to November 7, and on November 15, additionally violated Sec.
8(b)(4). We reject this exception. As to the picketing from October 30
to November 7, we note that the General Counsel stipulated, and the
judge found, that the picket signs were not in issue during this period.
Indeed, it was not until November 7 that the Respondents were notified
that the hours of USSI employees had been changed so that they would
not be working during the early evening hours when the picketing
occurred. As to the November 15 picketing, although the record dem-
onstrates that noontime picketing occurred prior to the Respondents’
supporters entering the Washington Square offices of Arent, Fox, the
judge made no specific findings as to that picketing. In any event, as
any finding of an additional 8(b)(4)(B) violation would be cumulative,
and would not affect the Order, we find it unnecessary to resolve the
issue as to the November 15 picketing.
12 Clearly, the Abramsons were neutrals. Thus, it is difficult to see
how their private homes could be primary sites. Equally clear, the Un-
ions’ conduct at the homes was not a peaceful handbill appeal of the
kind privileged by DeBartolo, supra.
13 Sec. 8(b)(4) provides that it is unlawful for a labor organization or
its agents:
(4)(i) to engage in, or to induce or encourage an individual
employed by any person engaged in commerce or in a industry af-
fecting commerce to engage in, a strike or a refusal in the course
of his employment to use, manufacture, process, transport, or oth-
erwise handle or work on any goods, articles, materials, or com-
modities or to perform any services; or (ii) to threaten, coerce, or
restrain any person engaged in commerce or in an industry affect-
ing commerce, 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 any other person, or forcing or requiring any other
employer to recognize or bargain with a labor organization as the
representative of his employees unless such labor organization
has been certified as the representative of such employees under
the provisions of section 9 . . . Provided, That nothing contained
because it was directed at secondary parties (Washington
Square Limited Partnership and its partners Lerner and
Abramson; The Lenkin Company Management, Inc.; and
the law firm of Arent, Fox, Kintner, Plotkin & Kahn (Ar-
ent, Fox)), with whom the Respondents had no labor
dispute. In this regard, we find no merit to the Respon-
dents’ claims that Charging Parties Lenkin and WSLP
(or their principals), or Arent, Fox, forfeited their neu-
trality by engaging in a joint venture with primary em-
ployers USSI or Red Coats—through the Apartment and
Office Building Association (AOBA) or otherwise—to
oppose unionization of the primaries’ janitorial employ-
ees. Nor do we agree with our dissenting colleague that,
by their action, the Charging Parties essentially became
parties to the labor dispute and thus lost their neutrality
as to that dispute. Rather, we agree with the judge that
the Respondents unlawfully sought to enmesh these neu-
tral individuals and entities in its dispute with Red Coats
and USSI.
When enacting Section 8(b)(4)(B) in 1947, Congress
sought to shield neutrals from labor disputes that were
not their own, on the basis that, inter alia, neutrals were
often powerless to comply with the union’s demands.
Carpet Layers Local 419 v. NLRB, 467 F.2d 392 (D.C.
Cir. 1972).14 When seeking to establish that an entity has
lost its neutrality for purposes of Section 8(b)(4)(B), a
union bears the heavy burden of demonstrating that
loss.15 Sheet Metal Workers Local 80 (Limbach Co.), 305
NLRB 312, 314 fn. 5 (1991), enfd. in relevant part 989
F.2d 515 (D.C. Cir. 1993); Newspaper & Mail Deliverers
(Gannett Co.), 271 NLRB 60, 67 (1984). This burden is
satisfied only where the union establishes that the entity
is so closely identified with, and allied to, the primary
that it has ceased being neutral to the dispute. Teamsters
Local 456 (Carvel Corp.), 273 NLRB 516, 519 (1984).
As found by the judge, unions can satisfy this burden by
establishing that the targeted entity is an “ally” of the

in this clause (B) shall be construed to make unlawful, where not
otherwise unlawful, any primary strike or primary picketing[.]
14 In 1951 amendments, Congress reaffirmed a union’s right to en-
gage in strikes and picketing against primary employers. Thus, when
considering 8(b)(4)(B) allegations, the Board is mindful of “the dual
congressional objectives of preserving the right of labor organizations
to bring pressure to bear on offending employers in primary labor dis-
putes and of shielding unoffending employers and others from pres-
sures in controversies not their own.” NLRB v. Denver Building Trades
Council, 341 U.S. 675, 692 (1951).
15 Our dissenting colleague apparently seeks to shift or lessen the un-
ion’s clear burden of demonstrating loss of neutrality by analogizing
this area of the law to one concerning single employer and alter egos.
We find this argument wholly unpersuasive and note that it ignores
Congress’ clear purpose when enacting 8(b)(4) of shielding neutrals
from outside disputes.
In our view, the General Counsel meets his burden of proof on this
issue by showing that the union has directed 8(b)(4) conduct to an
ostensibly neutral company. The union may defend by showing that
this company is an ally of the primary or has otherwise enmeshed itself
in the primary dispute. The union bears the burden of proof as to this
issue.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640
primary employer. Under this doctrine, where the union
establishes that the entity is a “single employer” with the
primary, or performs the primary’s struck work, it is
deemed an “ally” of the primary that has forfeited its
neutrality for purposes of Section 8(b)(4)(B). See, e.g.,
Mine Workers (Boich Mining Co.), 301 NLRB 872, 873
(1991), enf. denied on other grounds 955 F.2d 431 (6 Cir.
1992); Office Employees Local 2 (Postal Workers), 253
NLRB 1208, 1211 (1981).16 Similarly, as found by the
judge, where it is demonstrated that the targeted entity
exercises substantial, actual, and active control over the
working conditions of the primary’s employees, that en-
tity may be found to have relinquished its 8(b)(4)(B)
protections. See generally Electrical Workers IBEW
2208 (Simplex Wire), 285 NLRB 834, 838 (1987).
We agree with the judge and our dissenting colleague
that Charging Parties WSLP and Lenkin Company, are
not “allies” of the primary employers Red Coats or
USSI.17 Indeed, the Respondents concede that the “ally”
doctrine is not established here. We also agree with the
judge and our dissenting colleague that the Charging
Parties do not substantially control the working condi-
tions of the primaries’ employees. See generally Carpet,
Layers Local 419 v. NLRB, supra; Cf. Carpenters (Mis-
soula White Pine Sash), 301 NLRB 410 fn. 3 (1991).
Accordingly, under extant law, the judge correctly con-
cluded that the Charging Parties remain “neutrals.”
Through the conduct described in Section 3(a)–(d)
above, the Respondents unlawfully sought to enmesh
these neutrals in the primary dispute between Respon-
dents and USSI-Red Coats. This conduct was unlawful
because it was “tactically calculated to satisfy [the Re-
spondents’] objectives elsewhere,” i.e., to organize the
primary employers’ employees. National Woodwork
Mfrs. Assn. v. NLRB, 386 U.S. 612, 644 (1967).
Our dissenting colleague, however, leaves existing law
behind and creates a new doctrine that would deny the
Charging Parties the protection of Section 8(b)(4)(B).
Our colleague notes that the Charging Parties chose to
participate in a trade association, AOBA, and that
AOBA, in turn, assisted members who were primaries in
the dispute to resist the union campaign while also assist-
ing members who were neutral secondaries to shield
them from the impact of the union activity. From this,
she concludes that the Charging Parties became so en-
twined in the union campaign that they became parties to
the dispute, even though they do not fit within any of the

16 In evaluating “ally” status, the Board examines various factors, in-
cluding common ownership, common control of labor relations, inte-
gration of operations, and the dependence of one employer on the other
for a substantial portion of its business. Graphic Arts Local 262 (Lon-
don Press), 208 NLRB 37, 39 (1973).
17 We further agree with the judge that the Charging Parties and Ar-
ent, Fox are not joint employers with USSI and Red Coats.
definitions in existing Board law which would render
them primary as opposed to secondary employers.18
We find no legal support for this position.19 Indeed, as
recognized by the judge, the flaw in this argument is that
it erroneously assumes that “wholly unconcerned” means
that neutrals must be totally disengaged from a labor
dispute to retain their neutrality.20 That is not the law.21
Fox example, a customer may want a supplier to resist
union demands for a substantial wage increase. The cus-
tomer may be concerned that such a wage increase will
result in a price increase to the customer. Thus, the cus-
tomer is not “wholly unconcerned” as to the supplier-
18 Our dissenting colleague makes much of Edward J. DeBartolo
Corp. v. Florida Coast Building Trades Council, supra, in which the
Supreme Court cautioned that Sec. 8(b)(4) must be construed narrowly
because its potential to reach “expressive” activity by unions implicates
the First Amendment. However, DeBartolo does not deal with the
issue of primaries vs. neutrals. Rather, it deals with the issue of
whether conduct addressed to a conceded neutral was unlawful. In any
event, as to that issue, the Court in DeBartolo expressly distinguished
the peaceful handbilling present in that case—which it found to be
“expressive” and lawful—from activity such as “violence, picketing, or
patrolling” (485 U.S. at 577) which it found to be a combination of
conduct and communication more likely to be found coercive under the
Act. The conduct which we find, in agreement with the judge, violated
Sec. 8(b)(4) clearly exceeds the bounds of merely expressive conduct;
accordingly, the admonitions of DeBartolo do not come into play.
See also Warshawsky & Co. v. NLRB, supra (distinguished DeBar-
tolo on the grounds that there the conduct sought by the union was a
lawful boycott whereas, in contrast, in Warshawsky constitutional prob-
lems were not presented due to the unlawful inducement of employees
to engage in a secondary strike).
19 We concur with the judge’s finding that the Respondents might
have successfully defended against 8(b)(4)(B) violations had they ad-
duced convincing proof that the Charging Parties, through AOBA or
otherwise, were so involved in, or exercised such actual and active
control over the management policies and/or labor relations of the
primaries as to become enmeshed in the latters’ dispute with the SEIU.
This they failed to do.
Further, we adhere to the well-settled proposition that, absent em-
ployment controls not present here, a building owner is a person sepa-
rate and apart from the janitorial contractor. See, e.g., Southern Cali-
fornia Gas Co., 302 NLRB 456, 461–462 (1991); Service Employees
Local 87 (Pacific Telephone), 279 NLRB 168, 171–172 (1986). Con-
cededly, the owner may have an economic interest in keeping the jani-
torial contractors’ employees nonunion. Thus, in a lay sense, the owner
may not be “wholly unconcerned” about the prospect of unionization.
However, in agreement with the judge and the D.C. Circuit, we find
that this phrase, as applied to Sec. 8(b)(4)(B) was not intended to have
so broad a reach. See Carpet, Layers Local 419 v. NLRB, 429 F.2d 247
(D.C. 1970); on remand 190 NLRB 143 (1971); enfd. 467 F.2d 392
(D.C. Cir. 1972).
20 We disagree with our colleague’s claim that we have taken undue
liberties with the ordinary meaning of “neutral.” The term is not used
in its “ordinary” context in these cases—but in its precise legal mean-
ing as defined in case law, supra. As she concedes, the term “neutral”
does not appear in Sec. 8(b)(4), but derives from Senator Taft’s use of
the phrase “wholly unconcerned” when sponsoring that legislation.
Further, we agree with the judge that the term “wholly unconcerned,”
as used by Senator Taft during the enactment of that provision, cannot
be given the construction urged by the dissent. Extant law makes clear
that absent an “ally” relationship or substantial control by the neutral
over the primary, neutrality will not be lost.
21 We do not find that our dissenting colleague’s, “common sense”
analysis of this case suffices to shield secondary conduct where legal
precedent would not.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 641
union bargaining dispute. But, that does not permit the
union to picket the customer.
Further, to the extent that the Charging Parties were in-
terested parties in the Respondents’ janitorial contrac-
tors’ labor dispute, it was largely because the Respon-
dents overtly and expressly sought to enmesh them in it.
From the 1987 inception of their “Justice for Janitors”
(JFJ) campaign, the Respondents sought to enmesh the
Charging Parties and other building owners and manag-
ers in their dispute with USSI, Red Coats, and other jani-
torial contractors. The JFJ campaign in the District of
Columbia was part of a nationwide campaign to organize
janitors who clean commercial buildings. Throughout
this campaign, Respondents’ leaders consistently re-
quested meetings with neutral building owners and man-
agers as well as the primary cleaning contractors. And,
from the beginning, the Respondents made clear their
intent to convince the building owners and managers to
use their influence with the contractors to persuade the
latter to recognize the Respondents. In response to the
Respondents’ planned strategy to encompass building
owners in their campaign to organize janitorial employ-
ees, the Charging Parties lawfully sought to protect their
companies and business interests. They were clearly
entitled to do so. See generally Painters Local 36 (Stew-
art Construction), 278 NLRB 1012 (1986).22 That they
did so under the auspices of the AOBA—of which they
were members—did not forfeit those protections.
Nor did the fact that the AOBA provided information,
training, and legal advice to its primary and neutral
members impermissibly enmesh the Charging Parties.
First, as found by the judge, the Charging Parties availed
themselves of these AOBA services in order to protect
their business interests apart from any immediate interest
in the primary labor dispute.23 Second, the AOBA, as a
trade association, was entitled to assist all of its members
and also to take a point of view on the Respondents’ ac-
tivities which were dramatically affecting many of its
members, both secondaries and primaries alike. More-
over, the AOBA was clearly entitled to advise members
consistent with what it viewed as the best interests of the
organization as a whole. Ultimately, as our dissenting
colleague must concede, each member was a separate
entity with complete control over its own labor relations
and was free to follow advice dispensed by the AOBA or
to decline to do so. The fact that principals of the Charg-
ing Parties were active in AOBA governance at the time

22 Further, even had the record established that the Respondents’ or-
ganization of the primaries’ employees would have economic conse-
quences on the Charging Parties, this would have been insufficient to
destroy secondary status. See, e.g., Carpet Layers, Local 410 v. NLRB,
supra, 467 F.2d at 401.
23 See generally Service Employees Local 32B-32J (Dalton Schools),
248 NLRB 1067, 1069 (1980) (No precedent is advanced to support the
view that a neutral’s efforts, however fruitless, to seek relief from a
union and get out from under unlawful picketing somehow aligns the
neutral with the primary so as to justify picketing the former.).
of the Respondents’ campaign may have made them
more attractive targets for the Respondents’ aggressive
tactics, but that fact cannot convert them from neutral to
primary status in the dispute.
Additionally, despite some early AOBA rhetoric (to
the effect that it was “spearheading” the campaign
against unionization),24 there is no evidence that the
AOBA—on behalf of the neutrals—engaged in actual
conduct which enmeshed the Charging Parties in the
primary dispute. As found by the judge, the record is
barren of evidence that the AOBA provided a forum in
which the Charging Parties plotted to interfere with Re-
spondents’ efforts to organize janitors. Indeed, as stated
by the judge, the evidence falls far short of establishing
that the Charging Parties—through the AOBA—were
“so involved in, or exercised such actual and active con-
trol over the management policies and/or labor relations
of the primary employers as to become enmeshed in the
janitorial contractors’ labor dispute with the [Respon-
dents].” We also agree with the judge that the fact that
the Charging Parties (and other AOBA-building owners)
contributed to and benefited from a legal defense fund to
which primary members also contributed does not estab-
lish that the Charging Parties lost their neutral status.
This is particularly true because the evidence demon-
strates that much of the legal advice provided by the
AOBA was for the purpose of ensuring, not forfeiting,
the Charging Parties’ neutrality.25 That the primary em-
ployers as AOBA members also received legal advice
paid for by the AOBA fund, cannot thus transform the
Charging Parties from neutral to primary employers.
Our dissenting colleague makes much of the fact that
AOBA opposed the Unions’ attempts to gain recognition
from the primaries, albeit she recognizes that AOBA also
opposed the Unions’ efforts to enmesh the neutrals. Of
course, AOBA did both because AOBA was comprised
of primary and neutral companies. However, it does not
follow that each member of AOBA thereby became a
primary. The neutrals used AOBA to preserve their neu-
trality, and the primaries used AOBA to oppose the Un-
ions’ efforts to gain recognition. In our view, a neutral
company does not sacrifice its neutrality simply because
it belongs to an organization that acts on behalf of neu-
trals and primaries.
Nor does it follow that a neutral company sacrifices
neutrality simply because one of its principals is an offi-
cer of an association that has primary and neutral mem-
24 As found by the judge, by late 1988 and early 1989—well before
the late 1990 conduct here at issue—the AOBA modified its rhetoric to
make clear that its neutral members who did not employ janitors (such
as the Charging Parties) “[took] no position as to whether or not there
should be a union for any given contract cleaning company.”
25 As found by the judge, the “barring letters” prepared by AOBA
for and used by the Charging Parties as well as other secondary and
primary members do not warrant a contrary result inasmuch as they
were used as defensive measures against the Respondents’ extension of
picketing and other demonstrations to their facilities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642
bers. There are, of course, many trade associations in
this country, and business owners and executives often
participate in those associations. However, those owners
and executives also run their own companies. The com-
panies determine their own policies, which may or may
not reflect association policy. Notwithstanding this, our
colleague asserts that the position taken by an association
somehow becomes ascribable to the companies which
comprise it. In our view, this assertion is erroneous as a
matter of law and policy. There is no precedent to sup-
port it. And the consequences of it would be that persons
would be loathe to join or lead associations, for fear of
the enmeshment of their companies in disputes with un-
ions.
Further, we find no support for her apparent view that
a law firm’s representation of a primary means that the
law firm itself becomes a primary. This view is at war
with established legal principles. Just as a lawyer can
represent an unpopular person without being tainted by
association, so too can a labor lawyer render legal advice
to an employer without, in effect, becoming that em-
ployer. A contrary view would mean that every law firm
that gives advice to a client involved in a labor dispute
becomes a party to that labor dispute. We are aware of
no precedent that would support such a rule of law and
certainly find no compelling reason to craft one in this
case.
Accordingly, and for the reasons more fully explicated
by the judge, we find that the Respondents failed to es-
tablish that the Charging Parties and Arent, Fox lost their
neutrality. Therefore, we find that the Respondents vio-
lated Section 8(b)(4)(B) as set forth above.
4. Finally, contrary to the judge, we find that the Re-
spondents violated Section 8(b)(1)(A) through the April
4 comments of its organizer, Eric Cauthern, to operating
engineer Stephen Dixon at 2100 M Street, N.W.26
On April 4, during the Respondents’ demonstration
outside 2100 M Street, which is managed by the Charles
E. Smith Company and cleaned by Charging Party Gen-
eral Maintenance, building engineer Dixon placed a hand
on Cauthern’s shoulder. Cauthern responded by telling
Dixon to “[g]et the fuck out of his face,” and soon after
asked Dixon when he got off work and promised to re-
turn to “kick his ass.”
The judge found that Cauthern’s comments, while rude
and intemperate, were not unlawful because Dixon was
not connected to the primary employer and because his
comments were not overheard by or communicated to
employees. We disagree. Initially, we note that Dixon is
a “building engineer” (an employee) rather than a “build-
ing manager” as found by the judge. Further, we find
that Cauthern’s comments would reasonably tend to re-
strain or coerce employee Dixon in violation of the Act.

26 Unless otherwise specified, all cited addresses are in Washington,
D.C.
See generally Meat Packers (Hormel & Co.), 291 NLRB
390, 394 (1988); Maywood Plant of Grede Plastics, 235
NLRB 363, 380 (1978), enfd. in relevant part 628 F.2d 1
(D.C. Cir. 1980). Accordingly, we reverse the judge and
find that the Respondent violated Section 8(b)(1)(A).
AMENDED REMEDY
Having found that the Respondents have violated Sec-
tion 8(b)(1)(A), (i), and (ii)(B), as set forth in sections 2,
3 and 4 of this decision, by coercing employees in the
exercise of their Section 7 rights and by enmeshing
Washington Square Limited Partnership, The Lenkin
Company Management, Inc., PMI, Monument Parking,
Arent, Fox, and other neutrals in the primary labor dis-
pute, we order that that they cease and desist from such
practices and take affirmative action designed to effectu-
ate the Act.
ORDER
The National Labor Relations Board orders that the
Respondents, Service Employees International Union,
AFL–CIO, CLC, and Service Employees International
Union Local 525, AFL–CIO, their officers, agents, and
representatives, shall
1. Cease and desist from
(a) Inducing or encouraging employees of Washington
Square Limited Partnership, The Lenkin Company Man-
agement, Inc., Arent, Fox, Kinter, Plotkin & Kahn, PMI,
Monument Parking, or any other person engaged in
commerce or in any industry affecting commerce, to re-
fuse in the course of their employment to perform any
services where an object is to force or require any person
to cease doing business with United States Service Indus-
tries (USSI) or Red Coats, or to require USSI or Red
Coats to recognize or bargain with them.
(b) Threatening, coercing, or restraining Washington
Square Limited Partnership, The Lenkin Company Man-
agement, Inc., Arent, Fox, Kinter, Plotkin & Kahn, PMI,
Monument Parking, or any other person where an object
is to force or require them to cease doing business with
USSI or Red Coats, or to require USSI or Red Coats to
recognize or bargain with them.
(c) Blocking or impeding access to the Washington
Square situs.
(d) Assaulting supervisors and tenants of neutral em-
ployers.
(e) Threatening employees with bodily harm when
they seek to halt demonstrations.
(f) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its business office and at all meeting halls in Washington,
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 643
D.C., copies of the attached notice marked “Appendix.”27
Copies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the Respon-
dents’ authorized representatives, shall be posted by the
Respondents immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices are customarily posted. Reason-
able steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Within 14 days after service by the Region, sign
and return to the Regional Director sufficient copies of
the notice for posting by Washington Square Limited
Partnership, The Lenkin Company Management, Inc.,
Arent, Fox, PMI, and Monument Parking, if they are
willing, at all places where their notices to the public and
patrons customarily are posted.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at
testing to the steps that the Respondents have taken to
comply.

MEMBER HURTGEN, concurring.
As set forth by the administrative law judge, and as
highlighted in the majority opinion, I find that the Re-
spondents failed to establish that the Charging Parties
and Arent, Fox forfeited their neutrality for purposes of
Section 8(b)(4)(B).
I agree that, under extant legal principles (i.e., the
“ally” doctrine), those parties remained neutrals whom
the Respondents unlawfully sought to enmesh in their
dispute with the primary janitorial contractors USSI and
Red Coats. Further, even if neutrality can also be lost
where the “neutral” exercises substantial, actual, and
active control over the working conditions of the primary
employees, that control was not established here.
I write separately to acknowledge there may be other
situations in which I might be willing to find that neutral-
ity has been lost. That is, if a neutral company furnishes
advice, money, or other material assistance to a primary
employer, in connection with the primary employer’s
dispute with a union, it is at least possible that the neutral
company thereby forfeits its neutrality.1 However, as-
suming arguendo that this is so, I would find that the
Charging Parties and Arent, Fox remained neutrals. In

27 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
1 I do not include in this rationale the prospect that a neutral law firm
would lose its neutrality by virtue of giving advice to a primary. In my
view, that position would be contrary to principles which require an
attorney to give advice to a client, irrespective of whether the attorney
personally agrees with the goals of the client.
reaching this conclusion, I rely particularly on the fol-
lowing rationale.
First, the fact that companies exercise their 8(c) privi-
lege to express their opposition to the unionization of
other companies does not destroy the neutrality of the
former companies. Second, the neutral AOBA members
took their positions in response to the Respondents’ ef-
fort to enmesh them in the effort to unionize the prima-
ries. The Respondents’ goal was articulated from the
inception of their 1987 “Justice for Janitors” campaign.
It was to pressure the persons perceived to have the most
clout (the neutral building owners and managers) in order
to achieve unionization of the primaries’ employees.
Clearly, resistance to a union effort to enmesh neutrals
cannot itself be a factor that destroys neutrality. Third,
by early 1989, the neutrals had made it clear that their
sole interest was to protect their own property and busi-
ness interests against trespass and intrusion by the Un-
ions, as distinguished from assisting the primaries in
their resistance to unionization.2 The union conduct in-
volved herein occurred in 1990 and later. Thus, after the
neutrals made it crystal clear that they were indeed neu-
tral on the issue of unionization of primaries, the Re-
spondents persisted in their efforts to enmesh them in
that dispute.
Accordingly, in addition to the majority rationale
(which I adopt), I find that the circumstances of this case
provide no basis for expanding extant law to find that the
Charging Parties and Arent, Fox lost their neutrality.

MEMBER LIEBMAN, dissenting in part.
In finding today that the Charging Parties are “neutral”
employers in the labor dispute arising from the Justice
for Janitors Campaign, my colleagues have taken liber-
ties with the “ordinary meaning of plain language.” I
agree with my colleagues and the administrative law
judge that the Charging Parties are neither “allies” nor a
single employer with the maintenance contractors, Red
Coats and USSI, under traditional Board law. However,
I would find under the particular circumstances outlined
below that, by their choice to actively support and par-
ticipate, through the Apartment and Office Building As-
sociation (AOBA), in the campaign to thwart the Unions’
attempt to organize and represent the employees of Red
Coats and USSI, the Charging Parties forfeited their
“neutrality” in the labor dispute and the protection af-
forded by 8(b)(4) to neutral employers.1 Although dis-
2 The “barring” letter, devised by AOBA to protect against trespass
by the Respondents, was quite consistent with the neutrals’ efforts to
protect their property interests.
1 For separate reasons set forth below, I additionally find that the
Unions’ actions with regard to the law firm, Arent, Fox, Kinter, Plotkin
& Kahn, did not violate Sec. 8(b)(4).
Because I find that the record adequately supports the Respondents’
claim that the Charging Parties were not “neutrals” for purposes of this
proceeding, and because I find that their conduct directed toward Arent,
Fox was not unlawful, I need not pass on the judge’s “attorney-client
privilege” rulings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644
tinct from USSI and Red Coats in other respects, by their
own conduct the Charging Parties obscured the bounda-
ries between themselves and the maintenance contractors
in the very arena that is pivotal to assessing their neutral-
ity in this case, namely, the labor dispute between the
Unions and the two contractors. Thus, while the Charg-
ing Parties may have been able, in some instances, to
limit the Unions’ activities or exclude them from their
property on other grounds not at issue in this case, I find
that they could not circumscribe the Unions’ activity on
the grounds that it was secondary rather than primary
conduct under Section 8(b)(4).
Accordingly, contrary to my colleagues, except for the
picketing of the PMI and Monument parking garages,
discussed in Section 2 of the decision, I would not find
that the Respondent Unions have violated Section
8(b)(4)(i) and (ii) (B) of the Act.2
Relevant Facts3
The Service Employees International Union initiated a
“Justice for Janitors” campaign to organize janitors na-
tionwide in 1987. This case involves the campaign in the
District of Columbia. The Unions announced that they
would seek to persuade real estate owners and managers
to exert their influence on the cleaning contractors to
recognize the Unions as bargaining representatives of the
contractors’ janitors. The Unions engaged in various
activities, including contacting members of AOBA, a
trade association consisting of hundreds of Washington,
D.C. area building owners, managers, and maintenance
contractors. As to some cleaning contractor members,
the Unions demanded voluntary recognition.
In response to the “Justice for Janitors” campaign, the
AOBA developed a structured, funded program to coun-
ter the Unions’ organizational campaign. At all relevant
times, the Charging Parties,4 the law firm Arent, Fox,
United States Service Industries (USSI), and Red Coats
were AOBA members. Indeed, from 1987 through 1990
Edward Lenkin, an officer in Charging Party Lenkin
Company Management, Inc., was a member of the
AOBA executive committee and its board of directors.
During 1989, Edward Lenkin was AOBA’s president.
Similarly, Mark Lerner, managing partner of the Lerner
Corporation—a limited partner in Charging Party WSLP,
was a member of the AOBA’s board from 1988 through

2 I agree with Member Hurtgen, for the reasons set forth in the ma-
jority opinion (fn. 8), that the following three incidents were protected
by DeBartolo (Edward J. DeBartolo Corp. v. Florida Coast Building
Trades Council, 485 U.S. 568 (1988)): the October 19 delivery to the
property manager at the Washington Square Office; the November 2
incident outside 2301 M Street, and the November 6 incident at Len-
kins’ headquarters.
3 The facts are more fully set forth in the judge’s decision.
4 Although the Washington Square Limited Partnership (WSLP) was
not a separate AOBA member, both principals of this limited partner-
ship, Albert and Ronald Abramson, were.
1990.5 Throughout the relevant period, the Arent, Fox
firm was retained by the AOBA as counsel in matters
related to the Unions’ Justice for Janitors campaign.
AOBA has a paid administrative staff which implements
policies formulated by the executive committee and
board of directors.
AOBA’s program to counter the Justice for Janitors
campaign had its genesis in a September 1987 meeting of
member building owners and large cleaning contrac-
tors—including key officers of the Lenkin and Lerner
companies. The meeting was convened for the precise
purpose of “formulat[ing] a strategy to counter the Un-
ion’s efforts.” The AOBA members—including the
Charging Parties—unanimously agreed to commit
AOBA staff and resources to fight the Unions’ attempts
to unionize employees of area custodial contractors. The
members also agreed to develop a special taskforce to
deal specifically with the Unions’ campaign. The task-
force met on October 1, discussed and agreed that the
AOBA was well suited to deal with the “Justice for Jani-
tors” campaign, and stated that if this was “not properly
and troughly [sic] undertaken now [it] will have severe
negative financial effects on all [Washington,] D.C.
properties both immediately and for years to come.”
In late 1987, various building owners and managers
reported to AOBA’s executive vice president, Donald
Slatton, that the Unions had contacted them asserting that
the developers had de facto control over local janitors’
working conditions. AOBA’s board of directors then met
to discuss the organizing drive and consider whether
AOBA would take a lead role in countering the Unions’
organizing campaign. At that meeting, AOBA’s board,
including representatives from the Charging Parties,
unanimously agreed to assume “a lead role in the cam-
paign,” by resolving to: (1) devote staff time; (2) employ
Arent, Fox attorney, Allen Siegel, as lead management
labor attorney; and (3) commit its funds in order to
“counter the attempt to unionize service employees in
Washington.” As the judge found, the board of directors
thereby “authorized AOBA to assume a leading role in
orchestrating activities in opposition to the Justice for
Janitors campaign.”
Thereafter, the AOBA funded its campaign against the
Unions by soliciting contributions from members—
owners, building managers, and cleaning contractors
alike, specifically for the campaign. AOBA president in
1989, Edward Lenkin, who solicited these contributions,
was also Charging Party Lenkin Company’s president.
In soliciting contributions to the fund, the AOBA made
clear to its members that the purpose of the funds was to
help the AOBA, on behalf of its members, spearhead the
“industry effort to fight the union on all levels.” For ex-
5 In addition, James Schneider, an official of Tower Construction—a
company owned by WSLP’s Abramson family—was on the AOBA
Board from 1987 to 1990.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 645
ample, in a June 1988 solicitation of contributions, the
AOBA wrote its members that the requested funds were
necessary to “help finance our efforts to resist an inten-
sive campaign to unionize the employees of our city’s
cleaning contractors.” Further, the AOBA did not
merely solicit donations from its members, but sent them
written invoices, specifying the precise amount to be
contributed, and making clear that the requested money
was to “fund AOBA’s plan to counter the SEIU’s organ-
izational campaign.”6
Significantly, the record does not show that the solic-
ited contributions were earmarked by AOBA either for
use on behalf of its janitorial contractor members in their
efforts to counter the organizing drive, or for separate use
on behalf of its building owner and manager-members to
shield themselves from the union campaign7 or to aid
them in expressing their views about it. On the contrary,
some solicitations, which were addressed to “all AOBA
building owners and operators,” made clear that the
moneys were to “fund the industry effort to fight the Un-
ion on all levels.” Significantly, in response to AOBA’s
solicitations, the Charging Parties as well as the contrac-
tors, Red Coats and USSI, regularly contributed to the
fund.
As the self-proclaimed leader of the campaign against
the Unions, the AOBA actively monitored the “Justice
for Janitors” campaign. It directed its members to ap-
prise it of any “overt union activity among [their] janitor-
ial personnel,” and of any activities by the Unions at
their buildings. Throughout the relevant period, AOBA
served as a clearinghouse for gathering and disseminat-
ing information to its members on the Unions’ organiza-
tional activities.
The AOBA also conducted general training seminars
for its members—including the Charging Parties and
primaries—on “practical strategies . . . to deal with the
Union’s tactics,” and on concrete steps to be taken when
such tactics occurred on their premises. Further, in re-
sponse to specific activities by the Unions, the AOBA
counseled its members as to precise actions that should
be taken. For example, in a November 1987 newsletter,
AOBA’s lawyer, Siegel, instructed that members should
“[r]efuse to accept any documents from the union, such
as authorization cards.” Siegel further wrote that, when
faced with a demand for voluntary recognition, members

6 In some of the later requests for contributions, the AOBA became
more circumspect in its rhetoric, claiming that “AOBA’s members who
own and/or manage real property do not employ janitors and therefore
take no position as to whether or not there should be a union for any
given cleaning contractor. It is the philosophy of AOBA’s active
members that such a decision should be made, as is lawfully prescribed
under the NLRA, by the employees of those contractors.”
7 Indeed, the Respondents’ allegedly secondary activity did not be-
gin until substantially after the AOBA task force and defense fund had
been formed and the AOBA had become active in the antiunion cam-
paign.
should use specific provided language declining that re-
quest.8
AOBA’s involvement was not limited to providing
members with training, advice, or general guidelines.
AOBA directly involved itself—on behalf of all of its
members—in all aspects of the antiunion campaign. For
example, AOBA, acting in an apparently representative
capacity, regularly met with the Unions to discuss and
handle various aspects of the labor dispute. AOBA also
used the solicited legal defense fund to pay for the de-
fense of its members against alleged unfair labor prac-
tices and other legal actions instituted by the Unions, and
assisted in the prosecution of a member’s unfair labor
practice charges against the Unions.
AOBA also directly designed and determined the
strategies members should use in responding to the Un-
ions’ organizational campaign. For example, as cited
above, the AOBA advised its members as to precisely
what to say and do if confronted by the Unions’ demand
for voluntary recognition. Similarly, in May 1988, after
meeting with police, the AOBA told its members what
steps they should take if the Unions’ demonstrators came
on their property. Significantly, AOBA did not merely
tell members what their options were in responding to
the union activity or how to go about implementing a
particular response. For example, in addition to advising
members how to refuse recognition in an “Alert” memo-
randum to cleaning contractor members, AOBA stressed,
“it is very important that you decline recognition.” (Em-
phasis in the original.) Thus, AOBA’s function was as
much directive as educational.
In June 1988, following increased demonstrations by
the Unions at members’ commercial buildings, the
AOBA issued a form “barring” letter to its members.
This form, which the AOBA urged each member to per-
sonalize and immediately send to the Unions by certified
mail, notified the Unions that any individuals affiliated
with them were barred from the member’s property for
any purpose related to the “Justice for Janitors” cam-
paign. The AOBA “barring” letter further stated that
entry on the member’s property for such a purpose con-
stituted criminal trespass.
After some members sent the “barring” letter to the
Unions, the AOBA again wrote its members, proclaim-
ing the letter’s success: “those companies that have sent
the [barring] letter have experienced no union activity.”
The AOBA then urged its remaining members to send
copies to the Unions. Significantly, the Charging Parties,
the cleaning contractors, and other members, heeded the
AOBA’s directive and mailed “barring” letters to the
Unions.
8 In a November 1998 “Special Alert” memo, AOBA gave its clean-
ing contractor members a similar directive against voluntarily recogniz-
ing the Respondents, or taking any actions that could be construed as
such recognition.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646
After the Unions filed unfair labor practice charges
against AOBA and its members, claiming that the “bar-
ring” letters were unlawful overly broad no-solicitation
rules,9 the AOBA likewise directed all of its members to
send the police and the Unions a clarifying letter. This
November 1988 clarification stated that the “barring”
notice was not meant to prevent employees of the janitor-
ial contractors from engaging in union solicitation as
permitted under Section 7 of the Act.
Significantly, when sending the form clarification let-
ter to its members, the AOBA wrote that it “strongly
recommends and urges you to send a copy . . . to the Un-
ion immediately, as full and complete resolution of the
outstanding charges.” AOBA directed that its members
send courtesy copies of the modified “barring” letter to it
and Arent, Fox.10 Again, the Charging Parties, along
with many other members, heeded AOBA’s directive.
Moreover, with respect to its advice on union solicitation
and the “barring” letters, the AOBA did not distinguish
among its members based on whether they were primar-
ily or secondarily involved in the labor dispute.
The AOBA continued to direct the campaign, on be-
half of its members, against the Unions’ organizing
drive. The AOBA served as a clearinghouse for informa-
tion, offered members advice and strategies, provided
members with updates at each AOBA meeting, and solic-
ited funds for the AOBA legal defense fund. Moreover,
throughout the relevant period, AOBA continued to em-
phasize to its members that AOBA was responsible for
formulating their response to the Unions’ organizing
attempts.11 Significantly, the Charging Parties followed
AOBA’s advice and recommended actions.
In addition to spearheading the effort, on behalf of its
members, to oppose the Unions’ organizing campaign,
the AOBA consistently claimed direct credit for the suc-
cess of its efforts. Thus, when soliciting funds from
members for the AOBA-SEIU fund in October 1988, the
AOBA wrote that “due to the cooperation, involvement,
and financial support of the building owners/managers
and building maintenance companies” it was able to fend
off the Unions’ tactics. Later, in a memo to members
highlighting its major accomplishments for 1988, the
AOBA’s first pronouncement was that it “lead the office
building industry’s fight to prevent the Service Em-
ployee’s [sic] International Union from organizing the
janitorial workers in the District.” Similarly, when at-
tempting to dissuade an AOBA member from leaving the

9 The Respondents filed a complaint in District of Columbia Supe-
rior Court claiming that the “barring” letters violated the city’s Human
Right’s Act.
10 Interestingly, AOBA expressly directed that these copies not be
noted on the letters sent to the Respondents.
11 For example, in a March 1990 solicitation of funds, the AOBA in-
formed its members that as their “chartered representative . . . . AOBA
is empowered to assert the position taken by its members on an issue.”
organization, AOBA President Edward Lenkin, a princi-
pal in Charging Party Lenkin Company, wrote that:

I would especially like to point out [AOBA’s] efforts to
prevent the Service Employees International Union
from imposing union membership on the janitorial per-
sonnel employed by building maintenance contractors.
. . . .
AOBA has been the focal point of the opposition
and, to date, the SEIU has been completely unsuc-
cessful.

And, when informing members of its major accomplish-
ments in 1989, the AOBA’s opening declaration touted its
“continued . . . lead [in] the office building industry’s cam-
paign to prevent union membership from being forced upon
janitorial workers without a federally supervised election.”12
Finally, throughout the period that it spearheaded the
campaign against the Unions’ efforts to organize the con-
tractors’ employees, the AOBA was on notice that the
Unions considered it the agent for all AOBA members
for purposes of that campaign. As early as January 1988,
the Unions wrote the AOBA’s executive director stating
that when they had attempted to discuss the organizing
campaign with building owner and manager members,
they were referred instead to the AOBA. The Unions
wrote that this led them to believe that the AOBA “ha[d]
responsibility and authority to resolve matters.” Simi-
larly, after the AOBA directed its members to send the
“barring” letters, the Unions wrote to AOBA and its
members, warning that they were jeopardizing any claim
that owner-members were neutrals in the labor dispute.
The Unions also asserted that the AOBA’s barring policy
and defense fund “flies in the face of any claim of owner
neutrality.” And, in response to the barring letters, the
unfair labor practice charges filed by the Unions named
AOBA and Arent, Fox as well as the Charging Parties.13
Moreover, the record does not reveal any persuasive evi-
dence that AOBA attempted to disavow its representative
role.
Legal Background
The precise definition of a “neutral” employer under
the secondary boycott provisions of the Act has been the
subject of considerable and often passionate debate. This
12 At some point in 1989, the AOBA attempted to modify its rhetoric
by claiming that it, on behalf of its members, opposed recognition of
the Respondents only in the absence of National Labor Relations Board
conducted elections, rather than its earlier stated opposition to any
union representation. I do not regard this change as significant. The
relevant fact is that the Charging Parties enmeshed themselves in the
primary dispute by—through AOBA directed activities—actively col-
laborating with contractor members USSI and Red Coats in their dis-
pute with the Unions.
13 The Respondents also initiated suit against the AOBA, among
others, alleging that the barring notice violated the District’s Human
Rights Act. AOBA’s legal defense fund was used to pay for its de-
fense.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 647
debate has long been informed by the Supreme Court’s
formulation of the policies underlying 8(b)(4),14 namely,
“the dual congressional objectives of preserving the right
of labor organizations to bring pressure to bear on of-
fending employers in labor disputes and of shielding un-
offending employers and others from pressures in con-
troversies not their own.”15 Additionally, the Supreme
Court has warned in Edward J. DeBartolo Corp.16 that
because application of 8(b)(4) addresses “expressive ac-
tivity,” it bears the risk of implicating the First Amend-
ment. Hence the provisions must be construed narrowly
in order to avoid running afoul of that Constitutional
Amendment. DeBartolo reminds us that unions no less
than employers and individuals have rights under the
First Amendment and that while a union’s right to com-
municate its message may be abridged under the Act, the
First Amendment requires that the Board do so with
great caution.17
On its face, the legislative history of these provisions
would seem to be relatively clear and similarly argue for
an extremely narrow interpretation of the term “neutral.”
Section 8(b)(4)(B) itself makes no reference to “neutral”
employer. Rather, the “term derives from the remarks of

14 Sec. 8(b)(4) provides that:
(b) It shall be an unfair labor practice for a labor organization
or its agents—
. . . .
(4)(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or
commodities or to perform any services; or (ii) to threaten, co-
erce, or restrain any person engaged in commerce or in an indus-
try affecting commerce, 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
producer, processor, or manufacturer, or to cease doing business
with any other person, or forcing or requiring any other employer
to recognize or bargain with a labor organization as the represen-
tative of his employees unless such labor organization has been
certified as the representative of such employees.
15 NLRB v. Denver Building Trades Council, 341 U.S. 675, 692
(1951).
16 Edward J. DeBartolo Corp. v. Florida Gulf Coast Building Trades
Council, 485 U.S. 568, 576 (1988).
17 I would additionally note that under other provisions of the Act, a
finding that two entities are sufficiently related to be a single employer
or alter egos results in extending liability for unfair labor practices to
additional entities. Hence, consistent with the Government’s burden of
proving violations of the Act, the threshold is high and the Board is
generally reluctant to find that two entities are so related. In contrast,
under 8(b)(4), a finding that an employer is insufficiently related to the
primary dispute to forfeit its neutrality results in shielding that entity
from what would otherwise be lawful activity under the Act and in
assessing liability for an unfair labor practice against a union. Accord-
ingly, again consistent with the overall burden carried by the Govern-
ment to prove unlawful acts, in this context the Board must recognize a
lower threshold for relatedness and use restraint in affirmatively finding
neutral status.
Senator Taft, sponsor of the provision, describing its
purpose.” 18 Senator Taft stated:

This provision makes it unlawful to resort to a secon-
dary boycott to injure the business of a third person
who is wholly unconcerned in the disagreement be-
tween an employer and his employees. . . . [U]nder the
common law, a secondary boycott was unlawful. . . .
[B]ut under the provisions of the Norris-Laguardia Act,
it became impossible to stop a secondary boycott or
any other kind of strike, no matter how unlawful it may
have been under common law. All this provision of the
bill does is to reverse the effect of the law as to secon-
dary boycotts.19

Later, Senator Taft expanded on these remarks:

The secondary boycott ban is merely intended to pre-
vent a union from injuring a third person who is not in-
volved in any way in the dispute or strike… It is not in-
tended to apply to a case where the third party is, in ef-
fect, in cahoots with or acting as a part of the primary
employer.20

According to Senator Taft then, the legislation which
he sponsored was intended to, in effect, codify the com-
mon law as to secondary boycotts insofar as it shields
employers “wholly unconcerned” with a labor dispute
but not employers “in cahoots with or acting as the pri-
mary employer.” Further, in defining the scope of secon-
dary boycotts under common law, the Board and courts,
including the Supreme Court, have frequently relied on a
quote from Judge Learned Hand: “The gravamen of a
secondary boycott is that its sanctions bear, not upon the
employer who alone is a party to the dispute, but upon
some third party who has no concern in it.”21
18 Carpet Layers Local 419 v. NLRB, 429 F.2d 747, 750 (D.C. Cir.
1970). This case was reconsidered by the Board on remand at 190
NLRB 143 (1971), and subsequently enforced at 467 F.2d 392 (D.C.
Cir 1972), as referenced, infra.
19 93 Cong.Rec. 4198, II Legislative History of the Labor-
Management Relations Acts 1106 (1947).
20 95 Cong.Rec. 8709 (1949).
21 Electrical Workers IBEW v. NLRB, 181 F.2d 34, 37 (2d Cir.
1950), affd. 341 U.S. 694 (1951). See Railroad Trainmen v. Jackson-
ville Terminal Co., 394 U.S. 369, 388 (1969). In Production Workers of
Chicago & Vicinity Local 707 v. NLRB, 793 F.2d 323, 329–330 (D.C.
Cir. 1986), the Court elaborated on the history of the interpretation of
these provisions:
In NLRB v. Denver Building and Construction Trades Coun-
cil, 341 U.S. 675 (1951), the Court recognized that the original
language of the provision would bar virtually all union involve-
ment in picketing, even that specifically protected by other provi-
sions of the Act. The Court therefore looked instead to the pur-
poses of the provision, observing that the section is “often re-
ferred to in the Act’s legislative history as one of the Act’s ‘sec-
ondary boycott sections’” and . . . described the policy behind this
prohibition as “shielding unoffending employers from pressures
in controversies not their own.” [Citation omitted.]
. . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648
As clear as the legislative intent may appear, however,
its boundaries have proven elusive and the years have
consequently produced much additional gloss which has
had the effect of taking the term “neutral” employer
some steps away from the manifest meaning of the legis-
lative history.22 Recognizing that a union would be
unlikely to attempt to enlist the support of an employer
unless the employer had some sort of relationship with
the primary,23 the Board and courts have frequently held
that, Senator Taft notwithstanding, a neutral employer
need not be “wholly unconcerned.” Thus, for example,
the Board and courts have stressed that Senator Taft’s
reference to employers who are “wholly unconcerned”
does not preclude employers who have a strong eco-
nomic interest in the outcome of a labor dispute from
claiming neutral status.24
In order to separate those employers whose economic
interest is insufficient to negate their neutral status from
others whose common interest with the primary requires
such a forfeiture, the Board and courts have utilized the
related “single employer” and “ally” doctrines. Although
the two doctrines are sometimes used interchangeably in
this context, for the most part the single-employer doc-
trine considers whether the two entities are engaged in a
single enterprise and focuses on the question of control.
Thus, the Board looks to four factors: (1) common own-
ership, (2) common management, (3) interrelation of
operations, and (4) common or centralized control of
labor relations.25 The ally doctrine, on the other hand,
was devised to address situations where the two entities
are structurally separate but where the second entity has,

In the 1959 Landrum-Griffin Act, the Congress then sitting
gave its implicit imprimatur to the Supreme Court’s interpretation
by inserting the proviso of present Section 8(b)(4) that explicitly
protects primary activity. Since that time, as in the years before,
the caselaw has universally and unambiguously held that Con-
gress intended Section 8(b)(4) to protect only neutral parties—not
even all neutrals—from coercion in disputes not their own. [Cita-
tions omitted.]
22 As Justice Harlan recognized,
“No cosmic principles announce the existence of secondary
conduct, condemn it as evil, or delimit its boundaries. These tasks
were first undertaken by judges, intermixing metaphysics with
their notions of social and economic policy. And the common
law of labor relations has created no concept more elusive than
that of ‘secondary’ conduct; it has drawn no lines more arbitrary,
tenuous, and shifting than those separating ‘primary’ from ‘sec-
ondary’ activities.” [Railroad Trainmen v. Jacksonville Terminal
Co., 394 U.S. at 386–387.]
23 NLRB v. Electrial Workers IBEW Local 3, 542 F.2d 860, 865 (2d
Cir. 1976).
24 See, e.g., NLRB v. Electrical Workers IBEW Local 3, supra, and
Carpet, Layers Local 419 v. NLRB, supra, 467 F.2d at 401 (“the mere
presence of some economic interdependence between the two will not
automatically cause one to lose its secondary boycott protection with
respect to labor disputes of the other. The appropriate result must de-
pend upon the particular facts of each case”).
25 See, e.g., Mine Workers (Boich Mining Co.), 301 NLRB 872, 873
(1991).
in effect, injected itself into the labor dispute by, for ex-
ample, performing struck work.26
Analysis
Turning to the facts of this case, it is significant that, at
the direction of its members, the AOBA developed and
actively spearheaded the campaign to fight, on all levels,
the Unions’ efforts to organize the maintenance contrac-
tors’ employees. As discussed above, the AOBA vigor-
ously undertook this campaign. The AOBA secured Ar-
ent, Fox as counsel, solicited membership contributions
expressly earmarked for both offensive and defensive
actions against the Unions, monitored the Unions’ orga-
nizing activities and strategies, and repeatedly advised
and instructed its members how to act with regard to the
Unions. The AOBA members authorized Arent, Fox and
the AOBA to act on their behalf to thwart the Unions’
campaign to organize USSI and Red Coats employees.
Arent, Fox represented the AOBA and also individual
members, without distinguishing between USSI and Red
Coats, which employed the employees that the union
sought to represent, and other member-employers. More-
over, advice and direction from the AOBA and Arent,
Fox addressed the specifics of how members should han-
dle the admittedly primary activity, such as requests for
recognition directed at the maintenance contractors, as
well as how to handle the purportedly secondary activity.
The Charging Parties regularly contributed to the
AOBA-SEIU legal defense fund and, most significantly,
helped shape AOBA’s campaign against the organizing
effort through the leadership and direct participation of
Charging Party principals, particularly Lenkin and
Lerner who served as AOBA officers or directors.
I agree with the judge and my colleagues in the major-
ity that there appear to be no grounds for finding any of
the Charging Parties to be a single employer with the
maintenance contractors whose employees the Unions
were attempting to organize. Likewise, the Charging
Parties are distinguishable from those employers who
have previously been found to be primaries under the
ally doctrine. However, these doctrines are “merely tools
that must be used to reflect the full range of congres-
sional policies underlying the primary-secondary dichot-
omy,” 27 and these policies must inform our evaluation of
the facts even where these facts may not fall neatly into
any categories or labels established by Board precedent.
26 Carpet Layers Local 419 v. NLRB, supra, 429 F.2d at 753.
27 Curtin Matheson Scientific, Inc., 248 NLRB 1212, 1214 (1980).
Indeed, the courts have cautioned the Board that “the question of neu-
trality cannot be answered by the application of a set of verbal formu-
lae. . . . Rather the issue can only be resolved by considering on a case-
by-case basis the factual relationship which the secondary employer
bears to the primary employer up against the intent of the Congress as
expressed by the Act to protect employers who are ‘wholly uncon-
cerned’ and not involved in the labor dispute between the primary
employer and the union.” Vulcan Materials Co. v. Steelworkers, 430
F.2d 446, 451 (5th Cir. 1970), cert. denied 401 U.S. 963 (1971).
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 649
In my view “a common sense evaluation”28 of the unique
facts of this case establishes that, through their sponsor-
ship, support, and active participation in AOBA, the
Charging Parties engaged in conduct which made them,
in effect, parties to the labor dispute and thus, by their
own actions, have forfeited any neutral status. Far from
“wholly unconcerned” with the labor dispute between the
Unions and the cleaning contractors, the Charging Parties
were indeed deeply involved in it.
In concluding that the Charging Parties relinquished
their neutrality, I do not imply that, to maintain neutral-
ity, they were required to disengage themselves totally
from the primary labor dispute. Third parties like the
Charging Parties may share a primary employer’s phi-
losophical opposition to union efforts to organize the
latter’s employees and they are entitled to express that
opposition. Similarly, as set forth above, the precedent is
clear that the economic interdependence which usually
exists between a primary and a third party who does
business with the primary does not necessarily foreclose
neutrality and, in itself, would not be sufficient to in this
case. It is also foreseeable that third parties may retain
legal representation to protect their interests in a labor
dispute and they are fully entitled to do so. In none of
these situations is neutrality necessarily compromised.29
Moreover, I agree with my colleagues in the majority
that under Board precedent an employer does not com-
promise its neutral status by attempting to shield itself
from picketing. 30 However, contrary to my colleagues,
the actions of the Charging Parties, through the AOBA,
went far beyond taking defensive measures to protect
their specific interests in a labor dispute. As set forth
above, the Charging Parties were not merely passive
dues paying members of the AOBA who took no role in
the antiunion campaign. Nor were the AOBA’s activities
only directed at informing members and protecting build-
ing owners and managers from the primary labor dispute.
Rather, the Charging Parties, through the AOBA and its
attorneys, directly supported and helped finance the
maintenance contractors’ antiunion campaign and them-

28 NLRB v. Teamsters Local 810, 460 F.2d 1, 6 (2d Cir. 1972)
(“Neutrality, for purposes of the Act, is not a technical concept. To
determine whether an employer is neutral involves a common sense
evaluation of the relationship between the two employers who are being
picketed.”).
29 The cases cited by the judge are distinguishable. For example, in
Carpet Layers Local 419 (Sears) v. NLRB, 429 F.2d 747 (D.C. Cir.
1970), on remand 190 NLRB 143 (1971), enfd. 467 F.2d 392 (D.C. Cir
1972), there was mere economic interdependence between the primary
and secondary employers. Similarly, in Service Employees Local 32B–
32J (Dalton Schools), 248 NLRB 1067 (1980), there was no evidence
that the primary and secondary employers collaborated together to
oppose union representation. Indeed, in none of the cases cited by the
judge is there evidence that, as here, the purported neutrals combined
with the admitted primary employers to formulate and carry out a labor
relations policy aimed at preventing the latters’ unionization.
30 Service Employees Local 32B–32J (Dalton Schools), 248 NLRB at
1069.
selves blurred the boundaries between the primary and
potentially secondary activity.31
In sum, competing policies underlying the Act may
well explain the gloss on the legislative history which
says, in effect, that, to be deemed a neutral, an employer
need not be in fact “neutral” in all respects. However, it
is one thing to say that an employer may remain neutral
though it has a strong economic interest in the outcome
of a dispute, or that it should be able to express its views
about a labor dispute not its own as it insulates itself
from it. It is quite another to say, as my colleagues in the
majority do here, that an employer may essentially take
on the primary’s cause as its own but still insulate itself
from primary activity by claiming a formulaic adherence
to neutrality.32 In so concluding, my colleagues do not
clarify the meaning of the term “neutral.” They turn it on
its head, thereby eliminating any semblance of a connec-
tion between the gloss, the ordinary meaning of the term
and the legislative history of the secondary boycott pro-
visions.33 This willingness to abandon the ordinary
meaning of “neutral” is particularly troubling since, as
31 I would emphasize that in finding that the Charging Parties here
have forfeited their neutral status, I am not finding that somehow all of
AOBA’s policies and actions are “ascribable” to all of its members.
Thus, relying on the particular facts of this case, I am addressing only
the status of the Charging Parties here, and not other AOBA members
and I am referring only to the conduct at issue here, namely the active
support of the primaries’ antiunion campaign. This support, as noted
above, was far more than just moral support since it included financial
help coupled with a well orchestrated campaign involving both offen-
sive and defensive actions by AOBA members. Most significantly, in
concluding that the Charging Parties were not neutrals under the Act, I
am not finding them liable for any actions of the organization AOBA or
any of its members. Rather, I am merely finding that they could not
insulate themselves from the collateral consequences of a labor dispute
they have chosen to join. In short, at issue here is not their liability but
the Unions.’
32 Contrary to the judge, in evaluating whether the Charging Parties
lost their neutrality, I do not find it determinative whether their conduct
was protected or unlawful. To say that the Charging Parties could law-
fully assist the maintenance contractors in their antiunion campaign
does not require a conclusion that they may then insulate themselves
from unwanted aspects of the very labor dispute which they have cho-
sen to join. Rather, the significant consideration is whether those
claiming neutrality have sufficiently isolated themselves from the pri-
mary dispute or, as here, have become inextricably intertwined with it.
33 Of interest in this regard is the Supreme Court’s decision in Ten-
nessee Valley Authority v. Hill, 437 U.S. 153, 173–174 (1978). There,
the Court held that the Endangered Species Act of 1973 prohibited
completion of a dam in order to preserve the habitat of the previously
obscure snail darter even though millions of dollars had already been
appropriated to build it. Justice Burger, writing for the majority, re-
jected arguments by the Authority and the dissenters that Congress
could not rationally have intended the draconian result that would be
required under the “ordinary meaning of [the] plain language” of the
statute. In doing so, Justice Burger relied on “Lewis Carroll’s class
advice on the construction of language: ‘When I use a word,’ Humpty
Dumpty said, in rather scornful tone, ‘it means just what I choose it to
mean—neither more nor less.’ Through the Looking Glass, in the Com-
plete Works of Lewis Carroll 196 (1939).” Justice Burger then added,
“Our individual appraisal of the wisdom or unwisdom of a particular
course consciously selected by the Congress is to be put aside in the
process of interpreting a statute.” Id. at 194.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650
set forth above, the Supreme Court has cautioned in De-
Bartolo that Section 8(b)(4) is to be construed narrowly.
There remains the question of whether the law firm,
Arent, Fox, should be deemed a neutral employer in this
labor dispute. The Unions argue, in effect, that by actu-
ally joining the AOBA, actively assisting the AOBA in
its campaign against the Unions’ attempt to organize
janitorial employees, and representing both contractors
and building owner/managers alike, the law firm eroded
the lines between lawyer and client and primary and sec-
ondary, thus forfeiting its status as a neutral in the dis-
pute. I need not reach this argument, however, in finding
that the Unions’ visit to the Arent, Fox offices was not
unlawful. I would simply observe that whatever else Ar-
ent, Fox may have been doing with respect to the labor
dispute,34 it admittedly was the legal representative of
Red Coats, one of the two undisputed primaries in this
case. Accordingly, to the extent that the demonstrators
were attempting to communicate with one of the pri-
mary’s attorneys (concededly one of their purposes in
visiting the law firm’s offices), the attorney must be con-
sidered an agent of a primary, and thus an attempt to
communicate with him cannot be considered anything
but primary. In that respect, the attorney stands in the
shoes of its client.
To the extent that the demonstrators were attempting
to distribute handbills to the law firm’s employees de-
scribing their dispute with the primary employers, such
communication is clearly not unlawful under DeBartolo,
supra. The judge found that the Respondents lost the
protection of DeBartolo because, in her view, they were
engaged in a “purposeful attempt to disrupt the lawyers,
administrative staff and clients so as to enmesh the firm
in the primary dispute.” I assume that the handbilling
effort was unwelcome, disruptive, and perhaps “purpose-
fully” so. But, I disagree with the judge that the conduct
therefore ceased to be privileged publicity or rose to the
level of unlawful inducement or coercion within the pro-
scriptions of Section 8(b)(4). Likewise, even if the con-
duct was arguably trespassory, that does not convert it
into Section 8(b)(4) proscribed activity. For these rea-
sons, I would reverse the judge’s conclusion that the Re-
spondents violated Section 8(b)(4)(i) and (ii)(B) by their
conduct at the offices of Arent, Fox.
Having concluded that the Unions’ conduct toward the
Charging Parties was within the bounds of lawful pri-
mary activity, I can find no basis in law or precedent for
distinguishing the Unions’ activity at the Aspen Hill
Racquet Club or at the homes of the Abramsons from the
other primary activity. Certainly, it has been long estab-
lished that, subject to the requirements of Moore Dry

34 The actual extent of the law firm’s role is unclear because much of
the evidence that might have been pertinent to this question was ex-
cluded from the record under the attorney-client privilege.
Dock,35 a union may follow the primary employer wher-
ever the union finds it. Indeed, in this context the Board
has been admonished that it is not to substitute its judg-
ment as to the “propriety and adequacy” of a union’s
attempts to persuade for an analysis of whether the con-
duct is secondary or lawful primary activity.36
Specifically focusing on the Racquet Club, the record
shows that the Lenkin family had both a prime owner-
ship interest in the Racquet Club and owned the Lenkin
Management Company, one of the Charging Parties in
this case. Additionally of interest, Edward Lenkin was on
the AOBA executive committee from 1987 through
1990, serving as commerical vice president, president-
elect, president, and past-president during the years when
the AOBA formulated and implemented its campaign
against the Unions. In these circumstances, the Racquet
Club must be found to be a primary situs for purposes of
the labor dispute at issue here.
With respect to the Abramsons, as set forth above,
Charging Party WSLP and its Washington Square build-
ing were a principle focus of much of the Union activity.
WSLP was composed of two families, the Abramsons
and Lerners. Albert Abramson was the managing mem-
ber of the WSLP partnership. His son, Gary, was also a
member of this partnership and Abramson family mem-
bers comprise the Tower Construction Company which
develops and manages real estate. Along with the Lern-
ers, the Abramsons additionally jointly own a large
shopping center and have ownership interests in many
other properties in Washington and surrounding suburbs.
Mark Lerner was on the AOBA board from 1988 through
1990 and Tower Official James Schneider was on the
Board from 1987 through 1990, again the relevant time
period for this case.
In finding that the Abramsons’ homes are primary
sites, I am mindful certainly that the Supreme Court has
found that municipalities may restrict certain types of
picketing at private residences.37 However compelling
the Supreme Court’s discussion of the municipality’s
interest in protecting residential privacy may be, I can
find no basis in the Supreme Court’s decision, the Act or
Board precedent for inserting this interest into our analy-
sis of Section 8(b)(4), much less making it the control-
ling factor in a determination of whether conduct is law-
ful primary activity. Accordingly, I must conclude that
the Abramsons’ homes took on the primary character of
their many business locations. Under the facts of this
35 92 NLRB 547 (1950) (insulating secondary employers and em-
ployees at a common situs from a primary labor dispute).
36 See, e.g., NLRB v. Teamsters Local 968, 225 F.2d 205, 209–210
(5th Cir. 1955) (“no warrant exists either in the language of the statute
or the authorities cited . . . for empowering the Board, under the guise
of fact-finding, to fix the situs of the dispute at only one of the primary
employer’s numerous business activities”).
37 Frisby v. Schultz, 487 U.S. 474 (1988).
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 651
case, I see no basis under Section 8(b)(4) upon which to
differentiate between a primary’s home or office.
Conceivably, the Charging Parties or Arent, Fox could
have excluded the union representatives or limited their
activities on other grounds. For example, it may well
have been true that some of the union activity here,
though primary, was trespassory and, under appropriate
circumstances, might have been lawfully circumscribed
by the employers in another forum. But, these possibili-
ties for recourse elsewhere do not make the conduct a
violation of Section 8(b)(4). Likewise, merely because
otherwise primary conduct may offend its audience cer-
tainly does not make it secondary.
As a final note, I must add that even were I to agree
with my colleagues that the conduct at issue here is sec-
ondary, I could not agree with them that it is violative of
Section 8(b)(4)(i) as well as (4)(ii).38 Thus, the record
evidence is persuasive that the Unions’ appeal was di-
rected specifically, emphatically and exclusively at the
Charging Party employers and not at their employees.
Moreover, unlike Warshawsky & Co. v. NLRB,39 in
which the Circuit Court for the District of Columbia re-
versed a Board finding that the Union had not violated
Section 8(b)(4)(i), there is no evidence in the record here
from which even to infer that the Unions had a secret
agenda which they communicated to employees and to
which the employees responded by walking off the job.
Rather, the most that can be shown here is that some em-
ployees were incidentally affected, primarily when dis-
tracted by either observing or dealing with the conse-
quences of the Union activity. If that is the criteria, how-
ever, then virtually all conduct which violates 8(b)(4)(ii)
will necessarily be found to have also violated 8(b)(4)(i)
as long as any employees are exposed to it. I simply can-
not agree that that is what was intended by the framers of
these provisions.
In light of all of the foregoing, I respectfully dissent.
Accordingly, except for the Unions’ picketing of the PMI
and Monument parking garages, discussed in section 2 of
the decision, I would dismiss all allegations that they
violated Section 8(b)(4).40

MEMBER BRAME, dissenting in part.
I write separately regarding three specific incidents.
As set forth by the administrative law judge and in the
majority opinion, the Charging Parties and the law firm,
Arent Fox, were neutrals protected from the coercive

38 I also question whether all of the conduct found unlawful under
Section 8(b)(4)(ii) is unlawful under DeBartolo, but I find it unneces-
sary to lengthen my dissent by parsing that question here.
39 182 F.3d 948 (D.C. Cir. 1999), granting petition for review of 325
NLRB No. 141 (1998).
40 I also do not agree with my colleagues that the Respondents vio-
lated Sec. 8(a)(1) based on organizer Cauthern’s April 4, 1990 conduct
toward employee Dixon at 2100 M Street. Rather, I agree with the
judge that Cauthern’s comments would not reasonably restrain or co-
erce Dixon. Service Employees Local 87 (Pacific Telephone), 279
NLRB 168, 178 (1986).
activities of the Respondents by Section 8(b)(4)(B). No
recognized exception in law or precedent would exclude
these entities, which exercise no control over the work-
ing conditions of the primary employees, from the pro-
tection afforded by the Act. Accordingly, the secondary
object of the Respondents’ activity directed toward the
Charging Parties and Arent, Fox is established. Numer-
ous incidents of such secondary conduct are found today
to be coercive and unlawful. Contrary to the judge and
my colleagues, there are three additional incidents in
which the Respondents’ secondary activity was coercive
and, consequently, should be found to be unlawful as
alleged by the General Counsel.
I.
On October 19, 1990,1 six of the Respondents’ sup-
porters visited the property management office of Wash-
ington Square which was cleaned by USSI, a primary
contractor. Their ostensible purpose was to deliver a
letter to Reed, the building manager. The receptionist
told them that Reed was not in the office and, upon rec-
ognizing the Justice for Janitors (JFJ) logo on the letter’s
envelope, that she would check with Reed’s assistant,
Kan Cooke. She requested that they wait in the reception
area. Instead they followed her into Cooke’s office. En
route, she requested several times that they return to the
reception area but they did not do so. Cooke would not
accept the letter and asked the six individuals to leave.
After their spokesman placed the unopened letter on
Cooke’s desk, they all departed.
In finding that this incident was not unlawful, the
judge noted the receptionist’s testimony to the effect that
Respondents’ delegation had been civil and that their
conduct did not differ from that of routine courier ser-
vices. The judge also relied on the failure of the delega-
tion to request that either the receptionist or Cooke with-
hold their services and the fact that the contents of the
letter were not coercive.
Once, as here, the secondary nature of the conduct of
union supporters is established, then the Board must look
to the nature and foreseeable consequences of pressure
exerted to assess whether the conduct is coercive and
therefore unlawful under Section 8(b)(4).2 Moreover,
coercive activity with a secondary object is unlawful
under Section 8(b)(4) whether or not the actual coercive
effect is great or relatively small.3
It is evident from the receptionist’s swift response to
the JFJ logo that she was well aware of the campaign that
was being waged by the Respondents and that her em-
1 All dates are in 1990.
2 Teamsters Local 812 v. NLRB, 657 F.2d 1252, 1263 (D.C. Cir.
1980). (“The remaining question-whether the union pursued its object
by “threaten[ing], coerc[ing], or restrain[ing]” Monarch-goes not to the
motive underlying the boycott, but to the nature and foreseeable conse-
quences of the pressure which the union actually placed on Monarch.”)
3 See generally NLRB v. Twin City Carpenters District Council, 422
F.2d 309, 315 (8th Cir. 1970).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652
ployer was among the targets. Moreover, her testimony
notwithstanding, the conduct of this delegation was
clearly more coercive than a courier’s similar attempt to
deliver a letter. In this regard, a messenger service
would be unlikely to send six individuals, en masse, to
deliver one letter. Nor would a routine messenger be
likely to bypass the receptionist’s desk and enter a pri-
vate office when specifically requested, more than once,
not to do so.
The contents of the unopened letter were actually ir-
relevant to the lawfulness of the incident. Rather, the
aggressive conduct of these six individuals in itself was
coercive, particularly since it did not occur in isolation
but as part of the Respondents’ overall pattern of coer-
cive conduct. Accordingly, this incident violated the
Act.
II.
There were two incidents on November 2. One oc-
curred at a building located at 2301 M Street N.W., in
which the Lenkin family had an ownership interest.4 The
janitors who worked in this building were not involved in
any strike or primary dispute and the Respondents admit
that they were aware of this at the time. Nonetheless, at
about 7:30 on the evening of November 2, 40 to 50 dem-
onstrators sent by the Respondents massed at the 2301 M
Street building. SEIU Organizer Kevin Brown sought to
deposit leaflets inside the front door of the building
which was part residential and part commercial. A rally
lasting from 20 to 30 minutes ensued. Organizing Direc-
tor Hennessey gave a speech while the demonstrators
pounded on cans and shouted “Down with Eddie Len-
kin.” The demonstrators had arrived at the rally location
in front of the building in a single-file formation but ap-
parently did not continue in formation once the rally be-
gan.
The judge relied on the lack of overt confrontation be-
tween the demonstrators and the neutral’s employees and
the fact that ingress and egress from the building was
apparently not obstructed to find that this conduct by the
Respondents was not unlawful. However, in fact 40 to
50 noisy demonstrators were massed at the front entrance
to a building which is part residential and part commer-
cial at hours in the evening when a number of the resi-
dents or business tenants likely would want to leave
work or return home from it. That there is no record
evidence that any attempted to run the gauntlet and were
blocked from doing so by the demonstrators establishes
perhaps that confrontation was avoided but not that the
rally itself was not coercive in design and effect. Addi-
tionally, no employees working in the building and who
were affected by the noisy and disruptive presence of the
demonstrators were employed by any primary at issue in
this case. Again, the Respondents are bound not by

4 A company owned by the Lenkin family managed two of the prop-
erties in downtown Washington which were part of the JFJ campaign.
whether their secondary pressure was proven to be
largely or only moderately successful, but rather by the
nature and foreseeable consequences of their actions. By
this test, the rally at 2301 M Street was coercive within
the meaning of the Act and constitutes a violation of it.
III.
On November 6, two JFJ representatives appeared un-
announced at Lenkin headquarters in Bethesda, Mary-
land. A property manager told them they were in a pri-
vate office and did not belong there. Nonetheless, the
two individuals proceeded to give the manager a handbill
and to distribute them throughout the offices. The man-
ager called the police. Handbills were also left in the first
floor restroom.5 This incident lasted for 10 to 15 min-
utes.
Once these individuals representing the Respondents
were asked to leave the premises, they were on notice
that their presence inside the neutral’s offices was un-
wanted and intrusive. Thereafter, their invading individ-
ual offices in order to leave handbills was coercive and
far exceeded the bounds of mere “publicity.” Again, this
conduct must be viewed as it would be perceived in the
context of the Respondents’ overall campaign of harass-
ment of these neutral employers, and the Respondents
thus should be found to have violated the Act by this
conduct.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT induce or encourage employees of Wash-
ington Square Limited Partnership, The Lenkin Com-
pany Management, Inc., Arent, Fox, Kinter, Plotkin &
Kahn, PMI, Monument Parking, or any other person en-
gaged in commerce or in an industry affecting com-
merce, to refuse in the course of their employment to
perform any services where an object is to force or re-
quire any person to cease doing business with the United
5 The handbills spoke of the primary dispute, contrasting the jani-
tor’s wages and benefits with the wealth of landlords and asserting that
the developers should be held accountable.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 653
States Service Industries (USSI) or Red Coats, or to re-
quire USSI or Red Coats to recognize or bargain with us.
WE WILL NOT threaten, coerce, or restrain Washington
Square Limited Partnership, The Lenkin Company Man-
agement, Inc., Arent, Fox, Kinter, Plotkin & Kahn, PMI,
Monument Parking, or any other person, where an object
is to force or require any person to cease doing business
with USSI or Red Coats, or to recognize or bargain with
us.
WE WILL NOT block access to the Washington Square
parking garage through patrolling and leaving a locked
car at the entrance of that facility.
WE WILL NOT assault supervisors or a tenant’s customer
during an unlawful demonstration in the Washington
Square lobby.
WE WILL NOT impede access to Washington Square by
having our pickets handcuff themselves to the building’s
doors.
WE WILL NOT threaten employees with bodily harm
when they seek to halt demonstrations outside 2100 M
Street.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of rights guaranteed you by
Section 7 of the Act.

SERVICE EMPLOYEES INTERNATIONAL UNION
AFL–CIO, CLC; SERVICE EMPLOYEES INTER-
NATIONAL UNION, LOCAL 525, AFL–CIO
Steven L. Socolow, Esq. and Sherrie T. Black, Esq.,1 for the
General Counsel.2
Larry Engelstein, Esq., of Washington, D.C., for the Respon-
dents.
Stanley J. Brown, Esq. and Joanne Ochsmann, Esq.3 (Arent,
Fox, Kintner, Plotkin & Kahn), of Washington, D.C., for
the Charging Party.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. General Mainte-
nance Service Co., Inc. (General Maintenance) filed charges in
Cases 5–CB–6558 and 5–CB–6584 on May 2, 1990, as
amended on June 1 and 11, 1990,4 alleging that on April 4,
Respondents Service Employees International Union and Ser-
vice Employees International Union Local 525 (International
Union and Local Union, respectively5) threatened, restrained,
and coerced Charging Party’s employees and those of the
Charles E. Smith Companies. Thereafter, on June 15, an order
consolidating cases, consolidated complaint and notice of hear-
ing issued in those cases alleging, in substance, that Respon-
dents violated Section 8(b)(1)(A) of the National Labor Rela-

1 Black appeared on behalf of the General Counsel solely in the
General Maintenance case.
2 Hereinafter, the General Counsel.
3 By letter dated May 21, 1992, Ochsman withdrew her appearance
as counsel for the Charging Parties and AOBA.
4 Unless otherwise noted, all events occurred in 1990.
5 The International and the Local Unions also may be referred to col-
lectively as the Respondents or the Unions.
tions Act by impeding an employee’s access to a building and
by threatening bodily harm to another individual in the pres-
ence of employees. The Respondent filed a timely answer de-
nying the commission of any unfair labor practices.
On November 13, Washington Square Limited Partnership
(WSLP) filed charges in Case 5–CB–6712 (1 and 2) alleging
that Respondents had restrained and coerced employees of
WSLP and United States Service Industries, Inc. (USSI). In
another charge filed on the same date, as subsequently amended
on December 5, WSLP also alleged that Respondents engaged
in various acts to induce and encourage WSLP employees to
strike or refuse to perform services, to compel WSLP to cease
doing business with USSI and to force WSLP and/or USSI to
recognize and bargain with the Unions.
On December 4, the Lenkin Company Management, Inc.
(Lenkin) charged in Cases 5–CC–1119 and 5–CC–1120 that
Respondent had committed various unlawful acts to coerce
Lenkin employees to engage in a strike or refuse to perform
services, to threaten or coerce Lenkin in order to compel it to
cease doing business with Red Coats, Inc., and to compel both
Lenkin and/or Red Coats to recognize and bargain with the
Unions.
On March 14, 1991, the Regional Director for Region 5 is-
sued an order consolidating cases, consolidated complaint and
notice of hearing in Cases 5–CC–1118 (1 and 2), 5–CC–1119,
and 5–CC–1120 alleging that Respondents had violated Section
8(b)(4)(i) and (ii)(B) by engaging in unlawful conduct on vari-
ous dates between October 17 and November 15. On April 8,
1991, all of the above-captioned cases were consolidated for
hearing.
The Respondents filed timely answers to the March 14, 1991
consolidated complaint, and set forth seven affirmative de-
fenses. On May 21, 1991, the Charging Parties moved to strike
Respondent’s affirmative defenses. Thereafter the General
Counsel joined in the motion to strike affirmative defenses two
through seven, and the Respondent filed a brief in opposition.
On June 4, 1991, the first day of hearing, I denied the Gen-
eral Counsel’s and the Charging Parties’ motions to dismiss
with leave to renew without prejudice after the Respondents
presented their case-in-chief. I also granted the General Coun-
sel’s motion to amend complaints which, inter alia, deleted an
alleged violation of Section 8(b)(1)(A) and added three allega-
tions of 8(b)(4) misconduct. Respondents entered denials to the
amendments on the record.
On September 30, after the testimonial portion of the hearing
had concluded, the General Counsel and the Charging Parties
filed motions and extensive briefs seeking partial summary
judgment with respect to Respondent’s affirmative defenses.
The Respondents also submitted a lengthy brief in opposition.
In a November 1, 1991 telephone conference call with the par-
ties’ counsel, I orally granted summary judgment as to Respon-
dent’s affirmative defenses two through seven. The findings of
fact and conclusions of law supporting that judgment are set
forth below.
The consolidated cases were tried in Arlington, Virginia, on
June 5 through 7, and 10 through 12; on July 15 through 18 and
on August 9, 12, and 29, 1991, at which times the parties were
afforded full opportunity to examine and cross-examine wit-
nesses and introduce relevant documents.6 On the entire re-
6 Exhibits introduced into evidence by the General Counsel will be
referred to as G.C. Exh.; the Respondent’s exhibits will be cited as R.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654
cord, including my observation of the demeanor of the wit-
nesses, and after careful consideration of the parties’ briefs, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Jurisdiction over the parties in this proceeding is uncon-
tested. Accordingly, I find that the Respondents are, and have
been at all material times, labor organizations within the mean-
ing of Section 2(5) of the Act, and that the Charging Parties are
employers within the meaning of Section 2(2), (6), and (7) of
the Act.
II. OVERVIEW
The allegations in the consolidated complaint challenge ac-
tions taken by the SEIU to organize janitorial workers in Wash-
ington, D.C., as part of the Unions’ nationwide campaign titled
“Justice For Janitors” (JFJ). Part one of this decision concerns
several alleged violations of Section 8(b)(1)(A) of the Act
stemming from a brief strike led by the SEIU at a building ser-
viced by janitorial employees of the General Maintenance
Company. Part two addresses allegations that the SEIU en-
gaged in unlawful secondary activity when it picketed, hand-
billed, and demonstrated at buildings and homes owned and/or
managed by the Charging Parties, Washington Square Limited
Partnership, the Lenkin Company, and their principals, as part
of a campaign to obtain recognition for janitors employed by
two primary employers, United States Service Industry (USSI)
and Red Coats Company (Red Coats).
Part One: The General Maintenance Case
I. THE FACTS
General Maintenance provides janitorial services for a build-
ing at 2100 M Street N.W., Washington, D.C., managed by the
Charles E. Smith Company.7 In January, Paul Scully, an agent
of the SEIU International Union, began to assist Local 525 in
its efforts to organize the General Maintenance janitors as-
signed to that building. Scully met with employees on a weekly
basis, often using a lunchroom in the building for that purpose
with a tenant’s consent. He testified that early in the campaign,
Selene McCullough, one of the General Maintenance employ-
ees assigned to that building, executed an authorization card
and attended a number of the Union’s meetings.

Exh.; the Charging Parties’ exhibits as C.P. Exh.; and Joint Exhibits as
J. Exh., followed in each instance by the appropriate exhibit number.
References to the transcript shall be cited as Tr. followed by the appro-
priate page number.
After posttrial briefs were submitted, the Charging Parties sent cer-
tain documents to the Respondents which by inadvertence had not been
produced pursuant to to the Unions’ subpoenas. The Charging Parties
also submitted to me for in camera review, a large group of documents
which they claimed were privileged or outside the scope of the subpoe-
nas. On examining these documents, I determined that several should
be submitted to the Respondents. Subsequently, by cover letter of May
4, 1992, Respondent requested that they be admitted into evidence as R.
Exhs. A and B. By letters dated May 13 and June 1, 1992, the Charging
Parties opposed the admission of these documents. On May 18, Re-
spondents replied by facsimile transmission to the May 13 letter. Find-
ing that the two exhibits are relevant and do not significantly tax an
already extensive record, I admit R. Exhs. A and B into evidence.
7 Unless otherwise specified, all events occurred in the District of
Columbia.
In late March, the General Maintenance employees voted to
strike but did not immediately choose a specific date. However,
the following week, the employee leaders decided to commence
the strike on April 4, and notified their fellow workers of this
decision as they arrived for work that evening.
McCullough arrived at the 2100 M Street site at approxi-
mately 5:30 p.m., a half hour before the start of her 6 p.m. shift,
and found some 15 to 20 people, most of whom were her co-
workers, assembled in front of the building. A number in the
group were bearing “Justice For Janitors” signs and some were
distributing pamphlets. As she approached the group, Union
Agent Scully told her that the General Maintenance employees
would not be working that day. McCullough acknowledged that
she knew Scully and had spoken with him on previous occa-
sions.
McCullough continued to talk with other employees outside
the building trying to decide whether to report to work. After
some 25 minutes, she opted to work and started to enter the
building by walking down a ramp which led to a side door at a
loading dock. A General Maintenance supervisor inside the
doorway beckoned her to enter. According to McCullough,
Scully and another union organizer, Eric Cauthern, followed
her and stood in front of the side door preventing her entry.
Scully briefly put his hand on her shoulder while he and
Cauthern tried to persuade her not to work that evening. How-
ever, she insisted she wanted to work and attempted to pass
them.
After 2 or 3 minutes, Stephen Dixon, a building manager at
the 2100 M Street location, politely asked the men to move to
the street level and permit McCullough to enter the building.
Dixon stated that he had to repeat his request several times and
when he got no response from either man, tapped Cauthern on
the shoulder. Cauthern reacted by telling him to “get the fuck
out of his face.” (Tr. 50.) At this point, McCullough entered
the building just at 6 p.m.
Dixon stated that he momentarily left the scene to call the
police. On returning to the loading dock, Cauthern, who was
walking toward an adjacent independent parking garage, asked
Dixon when he got off from work and promised to come back
and kick his “ass.”8 Several minutes later, Dixon observed
Cauthern drive a van to the front of the building, collect the
demonstrators, and depart by 6 p.m. before the police arrived.
Kelso Stewart, a Charles E. Smith supervisor, also observed
McCullough’s and Dixon’s encounters with the Union’s agents.
However, I do not rely on his recollection of this episode for it
was far different than the testimony offered by any of the other
witnesses. For example, he maintained that both incidents
lasted for approximately 15 to 20 minutes, 10 minutes longer
than any other estimate. He further claimed that Cauthern
grabbed Dixon’s shirt collar, yet, Dixon did not report that
Cauthern touched him.
Scully’s testimony regarding this episode differs in small but
significant ways from the accounts of the Government’s wit-
nesses. First, he noted that five or six General Service employ-
ees crossed the picket line and reported to work that evening
without any interference from the Union’s agents. However, he
8 No one else testified about this incident since McCullough had al-
ready entered the building and Scully apparent,ly was elsewhere.
Cauthern was no longer employed by the Union at the time of the in-
stant hearing and was not available to be called as a witness. Accord-
ingly, Dixon’s testimony as to his second encounter with Cauthern is
uncontradicted.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 655
believed that McCullough was quite ambivalent about her role
in the strike. Twice she agreed to stay out of work only to
change her mind. Finally, she started down the ramp as a Gen-
eral Maintenance supervisor beckoned to her to enter the build-
ing and report to work. Scully related that he was at her side
attempting to convince her to join the strikers, when Cauthern
joined them in the loading ramp area. According to Scully, the
three of them paused but continued talking; McCullough was
closest to the door, while he and Cauthern were side by side to
her left. At this juncture, according to Scully, the building man-
ager appeared and asked them to leave the property. Scully told
him not to worry, that they were just having a conversation.
Insistent, Dixon put his hand on Cauthern’s shoulder and again
ordered them to leave. Scully testified that Cauthern told Dixon
to take his hand away, but did not curse. He did not recall that
McCullough expressed a desire to get past them to report to
work during their brief, 30-second conversation.
II. DISCUSSION AND CONCLUSIONS
The General Maintenance case poses two questions: (1)
whether Respondents’ agents attempted to impede a General
Service Maintenance employee from entering the building
where she worked during the course of a brief strike; and (2)
whether one of the agents threatened and attempted to assault
Dixon outside the same building thereby violating Section
8(b)(1)(A).
Section 8(b)(1)(A) prohibits a labor organization from “re-
strain[ing] or coerc[ing] employees in the exercise of rights
guaranteed by Section 7 of the Act.” Whether strike-related
conduct will be found unlawful depends on whether, within the
objective circumstances of each case, it “may reasonably tend
to coerce or intimidate employees in the exercise of rights pro-
tected by the Act.” Clear Pine Mouldings, 268 NLRB 1044,
1047 (1984). On applying the Clear Pine standard in Tube
Craft, Inc., 287 NLRB 491 (1987). The Board observed that:

[a]lthough peaceful picketing unquestionably includes the
right to make nonthreatening appeals to those who are about
to cross a picket line, the decision of such persons to ignore
such appeals must be respected. Thus, physical obstruction of
an entrance has been held to violate Section 8(b)(1)(A) of the
Act when attributable to a union.

Tube Craft involved four incidents in which three or four strik-
ers blocked the path of trucks preventing them from entering or
exiting the employer’s premises for periods of time ranging
from 2 hours and 30 minutes to 50 minutes. The Board viewed
this conduct as neither trivial nor isolated; rather it was found to
be part of a pattern of obstructive conduct that amounted to
“coercion and intimidation of the truckdrivers.” Id. at 492–493.
The first incident at issue in the instant case involving
McCullough bears little resemblance to the encounters de-
scribed in Tube Craft. A logical synthesis of both McCul-
lough’s and Scully’s testimony leads to the conclusion that the
Union’s organizers momentarily impeded McCullough from
entering the building while attempting to persuade her to join
her striking coworkers. McCullough initially had demonstrated
great ambivalence about whether to join the strikers or go to
work. In following her down the loading ramp, I conclude that
the Union’s agents were doing nothing more than trying to
change her mind once again, just as she had done twice before.
If they had intended to prevent her from entering the building
by physically barring her way, I have no doubt that they could
have done so.
Scully acknowledged putting his hand on McCullough’s
shoulder; however, I infer that he did not use a strong arm tac-
tic, for she did not refer to his touching her at all.9 Noting that
McCullough and Scully were on friendly terms and had talked
on a number of occasions, I do not find anything sinister in
what seems to have been little more than a casual gesture.
The entire episode could not have taken more than a few
minutes and was the only time that any blocking allegedly oc-
curred. Yet, it is undisputed that the Union made no effort to
prevent four or five other employees from entering the build-
ing. Thus, there is no pattern of obstructive conduct here as
there was in Tube Craft. Even assuming this incident qualifies
as blocking, it was momentary and noncoercive, amounting to
an inconsequential act of misconduct. See Ornamental Iron
Work Co., 295 NLRB 473 (1989). In fact, the entire incident
may be considered de minimis in that it was of limited duration,
impact, and significance. Thus, it does not warrant condemna-
tion as a violation of Section 8(b)(1)(A). See Musicians Local
76 (Jimmy Wakely Show), 202 NLRB 620, 621 (1973).
Cauthern certainly was hostile, but he did nothing more than
hurl a few common curse words at Dixon. His first comment—
that the building engineer should “get the fuck out of his face”
was unjustified, but was blurted out in response to Dixon’s
intervention and his ordering the union agents to leave the im-
mediate area.
Cauthern’s subsequent jibes were even more unwarranted.
However, he delivered his parting rude remark to an individual
who was not engaged in the picketing and who had no connec-
tion with the primary employer. It is true that threats and other
acts of intimidation directed at nonemployees may be unlawful,
but only if other employees would be likely to hear about it.
See North American Meat Packers Union (Hormel & Co), 291
NLRB 390, 395 (1988). No evidence was presented in this case
to suggest that other employees overheard or learned of Cauth-
ern’s comments to Dixon.10
Further, Cauthern’s passing remarks were not part of a pat-
tern of intimidating behavior. A promise to “kick ass” is virtu-
ally a cliche today11 and bears no resemblance to serious threats
like those made to replacement workers in the bitter Hormel
strike. Id. As noted in Machinists Lodge 1233 (General Dynam-
ics), 284 NLRB 1101, 1106 (1997), tempers run high during
strikes and language employed at such times will not necessar-
ily be couched in “tearoom style.” Accordingly, although
Cauthern’s conduct should not be condoned, neither does it
warrant remedial action. Accordingly, the complaint in this
matter should be dismissed.

9 Stewart was the only one to suggest that Scully grasped McCul-
lough’s arm in a forceful manner.
10 The General Counsel concedes in his brief that Cauthern’s remark
probably was made “out of range of either McCullough or Scully,” the
only other persons who might have been on-the-scene witnesses. (See
G.C. Br. 114 fn. 60.)
11 Indeed, President Bush used this expression on national television
during the 1988 election campaign.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656
Part Two: SEIU Versus WSLP and the Lemkin Company
I. BACKGROUND—THE ACTORS
A. Secondary Employers
1. WSLP
The office building at 1050 Connecticut Avenue, one of
Washington, D.C.s more prestigious business addresses, and
the situs of much of the Union’s activity at issue here, is owned
by Charging Party, WSLP. WSLP is a business entity com-
posed of two families prominent in the area’s real estate com-
munity—the Abramsons and the Lerners. Specifically, Albert
(Sonny) Abramson is the managing member of a partnership
which includes his son Gary. Abramson family members also
compose another partnership, the Tower Construction Com-
pany, which develops, owns, and manages real estate.
The Lerner’s ownership interest in the WSLP enterprise was
through Theodore Lerner and Lerner Enterprises Limited Part-
nership whose managing partner was Mark Lerner. The Lerners
and Abramsons also jointly own White Flint Mall, an upscale
shopping center in suburban Maryland. Separately, members of
each family possess interests in numerous other properties in
the District of Columbia, Maryland, and Virginia.
The Lerner family also engages in business as the Lerner
Corporation, a real estate management firm, which began to
manage Washington Square in the fall of 1990. Headquartered
in Bethesda, Maryland, the Lerner Corp. formulated written
employment policies which were distributed to the 26 manage-
rial, security, and maintenance employees whom it hired and
assigned to the Washington Square building. At the time of the
events alleged in the complaint, Sandra Reed was the Lerner
Corp.’s onsite building manager for Washington Square, with
supervisory authority over five other supervisors, including,
inter alia, Cynthia Carr, maintenance staff supervisor, and Jack
Remick, chief of a nine-man special security force.12
The 12-story Washington Square building, prime property on
the southwest intersection of Connecticut Avenue and L Street,
contains commercial office space, retail establishments on the
street and lower lobby levels, and an independently owned
parking garage, PMI, which fronts 18th Street.
Under Lerner’s management, its nine-member maintenance
crew worked solely during the daytime, performing various
chores such as changing light bulbs and air filters, correcting
minor plumbing problems, and steam cleaning certain outside
areas including the adjacent loading dock and sidewalks. Lerner
also employed a single janitor at Washington Square who, with
a USSI janitor, cleaned the quarters of a tenant, the U.S. Secret
Service, during daytime hours only.
2. The Lenkin Company
The Lenkin Company Management Inc., whose officers are
Edward Lenkin and his parents, Melvin and Thelma, manages
20 to 24 properties, including 2 at 1130 and 1133 Connecticut
Avenue, N.W. where other justice for janitors activities oc-
curred. The Lenkin family also has an ownership interest in the
Aspen Hill Racquet Club and Fitness Center in Silver Spring,
Maryland, a facility which became the locus of an intrusive
SEIU demonstration.

12 In past years, Tower Construction managed the building. Tower
also manages a building at 1707 L Street, N.W., the scene of one of the
incidents alleged to be unlawful in the complaint.
Lenkin property managers each oversee three buildings. In
the fall of 1990, Lorraine Flenner and Sheila Mendel were the
property managers for 1130 and 1133 Connecticut Avenue
N.W., respectively; both women reported to Lenkin’s director
of property management, Al Moler, who, in turn, reported di-
rectly to Edward Lenkin. In addition, Lenkin employed a chief
engineer, assistant engineer, and a day porter at each of these
buildings.
B. The Primary Employers
The primaries in this case, two of the larger independent
janitorial contracting firms in the District of Columbia, are
United States Service Industries, Inc. (USSI) whose employees
provide cleaning services for Washington Square, and Red
Coats which supplies janitorial services for many Lenkin-
managed buildings, including the two at 1130 and 1133 Con-
necticut Avenue. In addition, a Red Coats subsidiary, Admiral
Security, provides guard services at the 1130 address.
C. The Respondents
The SEIU formed Local 525 in 1987 in connection with its
campaign to organize janitors in the District of Columbia. Jay
Hessey served as the Local’s first president until October 1990
when he was elected its organizing director. A number of SEIU
employees were assigned to assist Local 525 during the JFJ
Campaign including Stephen Lerner, David Chu, and Kevin
Brown.
D. AOBA
The Apartment and Building Association, uniformly referred
to as AOBA, is a voluntary trade association composed of “ac-
tive members” who are owners and/or managers of office and
residential buildings, and “associate members,” who supply
goods and services to active members. AOBA’s purposes, gen-
erally, are to represent its members’ interests as they are af-
fected by legislation, conduct educational forums, and distrib-
ute information. Although not a formal party in this case, it
figured prominently in these proceedings, as detailed further
below.
AOBA is led by a board of directors consisting of 33 active
members, 3 associate members, and 1 director at large ap-
pointed by the president. Only active members may vote at
member meetings and be counted toward a quorum. The board
of directors elects AOBA’s officers—a president, president-
elect, commercial vice president, three area vice presidents,
treasurer, and executive director who serve as the executive
committee for 1-year terms. From 1987 through 1989, AOBA
had approximately 800 to 900 members.
Senior officials of the Charging Parties, the primaries and
General Maintenance all participated actively in AOBA during
the period of time relevant to this litigation. Thus, Edward Len-
kin was on the AOBA executive committee from 1987 through
1990, serving as commercial vice president, president-elect,
president and past president during those years. Mark Lerner
was on the AOBA board of directors from 1987 through 1990,
as was James Schneider, a Tower official, and Richard Thomp-
son, CEO of General Maintenance.
AOBA also employees a paid administrative staff, headed by
an executive vice president. Donald Slatton held this position
from 1987 to November 1989 and following his resignation,
was succeeded by Margaret Jeffers. The executive vice presi-
dent is responsible for managing the affairs and operations of
the Association under the tutelage of the executive committee
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 657
and board of directors. As Slatton testified, he implemented,
but did not formulate, AOBA’s policies. He explained that as a
voluntary organization, AOBA has no authority to compel a
member to take any action or adopt any position.
E. Arent, Fox
The law firms of Arent, Fox, Kintner, Plotkin & Kahn (Ar-
ent, Fox) wore three hats in this proceeding. First, Arent, Fox
was retained counsel for the Charging Party, AOBA. Second,
the law firm was an associate member of AOBA from at least
1987 through 1990 and, third, it is a tenant in the WSLP build-
ing, occupying floors four through seven.
The Respondent’s assert as an affirmative defense that Ar-
ent,, Fox was the chief architects of AOBA’s scheme to combat
the SEIU and thereby forfeited its neutral status. Consequently,
Respondent argues that it did not violate the Act, as alleged in
the complaint, when it invaded Arent, Fox’s offices on Novem-
ber 15, as described in greater detail below.
F. The Relationship Between the Allegedly Neutral and
Primary Employers
1. Day-shift janitors at Washington Square
The relationship between USSI and Washington Square is
relevant to two issues in this case: first, whether Lerner Corpo-
ration and USSI were joint employers and, second, whether the
Union’s activities at WSLP complied with the standards gov-
erning lawful common situs picketing as articulated in Sailors
Union (Moore Dry Dock), 92 NLRB 547, 549 (1956).
USSI has supplied cleaning services for Washington Square
since at least November 17, 1988 pursuant to a “Janitorial Ser-
vices Contract” which the parties followed but never executed
due to a disagreement over the amount of space to be cleaned.
Among the contractual terms was one which provided that
nightshift employees would be paid according to a base rate
multiplied by the square footage cleaned, while day workers
would receive a flat rate. Correspondence was received into
evidence indicating that Lerner rejected USSI’s request for a
rate increase in 1990.
The contract stated that “janitorial services provided by
USSI shall comport with Appendix A attached hereto,” but no
such appendix was produced.13 The Respondents introduced an
exhibit titled, “Washington Square Specifications Building
Janitorial Maintenance” suggesting that it might be the missing
appendix. This exhibit set forth in great detail the precise ser-
vices which the “Lessor,” WSLP, promised its tenants would be
furnished by the cleaning contractor. Property Manager Reed
testified that such a specification might accompany a tenant
lease; but she disclaimed familiarity with its terms and denied
ever having relied on it.
Lerner is not at all involved in USSI’s hiring processes.
Robin Allen, USSI day operations manager, whose office is at
USSI’s headquarters on 1424 K Street N.W., testified that she
accepted job applications at USSI headquarters on 1424 K
Street N.W. and subsequently notified applicants when open-
ings arose. USSI determined the number of cleaners to be as-
signed to various buildings. In the fall of 1990, five or six jani-
tors worked a 7 a.m. to 3 p.m. (daytime) shift at Washington

13 Building Manager Reed suggested that the word “Appendix” was
mistakenly used instead of “Addendum” which was affixed to the con-
tract. However, the two addenda attached to Exh. 10 have nothing to
do with the matters set forth in an appendix.
Square, clocking in and out on a timeclock at the building
which was separate from the one used by Lerner’s maintenance
employees. Generally, the USSI day cleaners were assigned to
clean common areas in Washington Square such as the lobbies,
corridors, and restrooms. They were not responsible for the
retail shops located on the entrance and lower lobby floors.
USSI maintained a small office furnished with desk and tele-
phone on the lower lobby level of the building where it stored
cleaning supplies and other equipment. The only USSI day
employee to possess a key to this room was a James Taylor
who, Charging Parties claim, is a supervisor.
Although Reed denied that USSI employees use Lerner sup-
plies or perform duties regularly assigned to Lerner staff, Fran-
cis Adigun, a USSI day cleaner, testified to the contrary. He
stated without contradiction that on request of the USSI day
janitors, Lerner Maintenance Supervisor Carr dispensed such
articles as toilet paper and towels to them. Also uncontroverted
was Adigun’s testimony that he possessed a key to the Wash-
ington Square supply room, from which he borrowed mops,
brooms, cleaning agents, and a large vacuum machine to clean
the exterior sidewalks, a task which supposedly was performed
solely by Lerner maintenance personnel.14 Further, again con-
tradicting Reed, Adigun disclosed that the USSI and Lerner
employees shared a common breakroom at Washington
Square.15
The parties presented sharply conflicting testimony about the
extent to which Lerner and USSI exercised supervisory author-
ity over their day workers. Allen testified that she had oversight
of 16 employees in various buildings, which she visited spo-
radically on an as-needed basis; typically, several times a
month. However, she maintained constant contact with the
building by way of a paging device. According to both Allen
and Reed, USSI employee James Taylor served as the day-shift
onsite cleaning supervisor at the Washington Square building.
Allen believed he had authority to discipline employees and
recalled one occasion when he had exercised it. While ac-
knowledging that she determined which tasks particular em-
ployees would perform, she asserted that Taylor trained new
employees. Adigun once more contradicted Allen’s assertion,
claiming that it was Lerner’s maintenance supervisor, Carr,
who showed him what he was supposed to do.
It is less than certain that Taylor actually performed supervi-
sory duties. He did not testify and Allen was unable to state
what percentage, if any, of his working day Taylor devoted to
supervisory tasks. However, given Adigun’s testimony that
Taylor’s job was to clean the men’s restrooms on all 12 floors
of the building, it is fair to infer that his cleaning chores con-
sumed virtually all of his part-time shift. Taylor wore no badge
or uniform which differed from those worn by his coworkers or
identified him a supervisor. Although he delivered the five
employees’ timecards to Allen twice a month, nothing about his
14 Adigun was not an educated man and had difficulty expressing
himself. However, I do not confuse his lack of articulateness with an
inability to tell the truth. I note that he did not take part in the SEIU
strike and testified under subpoena. These facts suggest that he was not
predisposed to the Respondents, causing him to slant his testimony in
their favor. For these reasons, I do not infer that because Respondent,
introduced him as their witness, his interests were wholly aligned with
theirs or that he testified falsely.
15 I credit Adigun on this matter, rather than Reed, for she had no
reason to use the breakroom and, thus, was not in a position to know
whether or not Lerner and USSI day workers used it jointly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658
card or his pay singled him out from the rank and file. More-
over, Allen, not Taylor, was responsible for locating a substi-
tute for an absent USSI employee.
Interestingly, Reed testified that if a cleaning problem arose,
she contacted USSI Vice President Gallagher or Allen, not
Taylor.16 Although Reed maintained that Taylor was the day-
time onsite supervisor, it was almost as an afterthought; she did
not suggest that she turned to him for corrective action. In fact,
Reed stated emphatically that she instructed Lerner personnel
not to interact with the USSI janitors. Instead, they were to
bring any questionable matters to her and she, in turn, would
resolve them with USSI management. Here, too, Adigun’s tes-
timony conflicted with Reed’s, for he stated that Carr showed
him what was required, assigned him extra work, and even had
him substitute for Lerner maintenance employees when they
were absent, sometimes as often as twice a week. Carr did not
appear as a witness so Adigun’s testimony on this score was
unrebutted.
2. USSI night-shift cleaners at Washington Square
Fifty to sixty USSI janitors were assigned to the night-shift
squad at Washington Square. For this number of employees,
USSI assigned three onsite supervisors. In addition, a project
manager visited the building once each evening. The night
cleaners’ major contact with Lerner personnel came chiefly at
the beginning and end of their shifts when they received and
later returned keys to tenant offices from a security guard sta-
tioned in the lobby.
Initially, in the fall of 1990, working hours for night janitors
at Washington Square were from approximately 6 p.m. to mid-
night. Reed testified that USSI Official Gallagher informed her
that the night janitors’ hours would change to 10 p.m. to 4 a.m.
at some unspecified time in November. She added that 2 weeks
later, Gallagher advised her the hours would be revised again to
12 to 6 a.m.17 No other witness offered any first-hand informa-
tion about the hours which night-shift janitors actually worked
or when, if ever, the revised schedule went into effect. Reed’s
testimony as to what Gallagher told her was admitted solely for
the purpose of laying a foundation for what actions Reed sub-
sequently took, and not for the truth of the matter asserted.
3. The relationship between Lenkin and Red Coats
Red Coats provided cleaning services for buildings managed
by Lenkin at 1130 and 1133 Connecticut Avenue, among oth-
ers.18 The contract for Red Coats’ services at the 1133 address
provided that payment would be based on square footage
cleaned; could be reopened for renegotiations in the event, of a
“change in union scale”; and canceled on 30 days’ notice. Red
Coats was obliged to provide its own equipment and supplies
which it kept in a storage room in the building. Lenkin and
Red Coats did not execute the contract applicable to the 1130
building because of a dispute not relevant to this proceeding.
Nevertheless, the parties adhered to its terms, which generally
were similar to those in effect at the 1133 site.

16 Reed also indicated that on rare occasions, she dealt with USSI
President Matthews.
17 Reed’s testimony as to what Gallagher told her was admitted
solely for the purpose of laying a foundation for what actions Reed
subsequently took, and not for the truth of the matter asserted.
18 Red Coats is a major custodial contractor in the area with some-
thing between 130 and 160 accounts. The Lenkin family also has an
ownership interest in the 1133 Connecticut Avenue property.
Lenkin’s property manager at 1133 Connecticut, Sheila
Mendel, testified that Red Coats prepared a document titled
“Cleaning Specifications” which outlined the cleaning services
to be provided. Neither Mendel nor any of the other Lenkin
employees including a building engineer, assistant engineer,
and maintenance porter, had working hours which overlapped
with the 6 to 11 p.m. shift of the Red Coats cleaners. Similarly,
at the 1133 Connecticut Avenue Building, Red Coats janitors
worked 5 days a week from 6 to 10 p.m.; and used supplies
provided by their employer which were stored in a separate
area on site.
If the property managers at either building had complaints
about cleaning services, they conveyed them to Red Coats
managerial personnel. Thus, Lenkin employees had no overlap-
ping working hours with Red Coat janitors, with one excep-
tion—a security guard with Admiral Security Services, a firm
owned by Red Coats President William Peel Jr. was detailed to
the 1130 address from 8 a.m. to 6 p.m.
No member of either the Lerner or Lenkin families held
ownership or other financial interests in USSI or Red Coats.
However, in 1987, a Red Coats’ subsidiary, Data Watch, pur-
chased the Morrison Group, a company specializing in security
services in which the Lenkins had a 50-percent interest. At the
hearing, Peel announced that he recently had completed pay-
ments for that transaction.
II. FACTS RELEVANT TO RESPONDENTS’ AFFIRMATIVE DEFENSES
A. The Parties’ Positions
The facts presented in the following section of this decision
are relevant to the Respondent’s affirmative defenses and the
General Counsel’s and the Charging Parties opposition thereto.
The events recited below began in 1987 long before the statu-
tory period of limitations set forth in Section 10(b) of the Act
began to run. However, the Respondent relies on the Charging
Parties’ and AOBA’s conduct during this early period to prove
that from the outset, even before its organizational activity
began, building owners and managers made common cause
with janitorial contractors through AOBA’s agency, to thwart
the JFJ campaign. Accordingly, the SEIU claims that the
Charging Parties enmeshed themselves in the labor affairs of
the primary employers, and thereby forfeited their neutral
status.
The General Counsel and the Charging Parties deny that
AOBA’s activities were designed to oppose union representa-
tion of the cleaning employees. Instead, they assert that AOBA
and its members wanted to make sure that Union representation
would be determined by means of a duly authorized NLRB
election. They further contend that AOBA formulated a strat-
egy solely to what was perceived as the Respondents’ unlawful
pressure tactics. This strategy relied on member education,
distribution of information, and provision of counsel to owners
in meetings with the SEIU.
B. Respondents Launch the JFJ Campaign
In the summer of 1987, Local 525, with assistance from the
International, launched the JFJ campaign in the District of Co-
lumbia as part of a nationwide effort to organize janitors who
cleaned commercial office buildings.19 As the campaign pro-
19 On or about late 1986, David Chu, SEIU’s director of research,
and his staff began to collect information about the real estate holdings
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 659
gressed, union leaders sought to meet not only with the clean-
ing contractors who employed the janitors, but also with own-
ers and managers of buildings where the janitors performed
their services. From the outset, the SEIU announced that its
tactics would include persuading real estate owners and manag-
ers to use their influence with cleaning contractors to recognize
Local 525.
In the summer of 1987, Jay Hessey and Steven Lerner met
with officers of a number of contracting companies, among
them, Richard Thompson of General Maintenance. Thompson
testified that the SEIU representatives told the group that an
organizing campaign would commence; that “owners were
going to be approached and pressure was going to be put on
them to recognize the Union.” (Tr. 1815.)
In September of that year, pursuant to the SEIU’s invitation,
AOBA Executive Director Slatton met with SEIU International
President Sweeney, Hessey, and Lerner at the Union’s head-
quarters. Slatton recalled that Sweeney discussed the Union’s
desire to gain fair wages for janitors and the advantage to the
owners’ and contractors’ of having a stable work force.
Sweeney then suggested that the union, contractors, and build-
ing owners had common interests which would be promoted by
an amicable relationship. Slatton stated that he pointed out to
Sweeney that neither AOBA nor its members employed jani-
tors. The SEIU president apparently appreciated this point for
he replied that the Union “was going to try to get AOBA to tell
its members to tell their cleaning contractors to recognize the
union.” (Tr. at 1208–1209.)
Slatton further testified that as he was being escorted out of
the building at the meeting’s end, Hessey “got in [his] face”
and said “We intend to organize the janitors. We can either do
it with your help or without. . . . If you get in our way, we’re
going to run over you, and its in your best personal interests
[sic] to cooperate with us.” (Tr. 1365–1366.)
C. AOBA Mounts a Countercampaign
During this same period, that is, in late summer and early fall
1987, various building owners and managers reported to Slatton
that the Union had contacted them. Cleaning contractors, in-
cluding Thompson of General Maintenance, also informed
Slatton that the SEIU had demanded voluntary recognition.
Sometime in September, AOBA convened a meeting of
building owner members and most large cleaning contractors at
which they discussed the union organizing drive. Minutes of a
September 15, 1987 AOBA board of directors’ meeting indi-
cate that Slatton advised the group that the SEIU planned to
unionize all janitorial employees in the District of Columbia by
early 1988. He also reported that several AOBA members met
with “a leading management labor attorney, Alan Segal [sic],”
to formulate an initial strategy to counter the union’s effort. A
motion “to devote staff time and Board of Directors involve-
ment in the effort to counter the attempt to unionize service
employees” was approved unanimously with representatives of
the alleged neutrals—Edward Lenkin, Mark Lerner, and James
Schneider (for Tower), joining in the vote.
Soon thereafter, AOBA formed a special task force to formu-
late a response to the Unions’ anticipated organizing campaign.
It also established an AOBA-SEIU Committee. On October 1,
the task force met with Arent, Fox Attorney Siegel to examine

of major commercial property owners and developers and in the metro-
politan area.
whether AOBA should retain the law firm to represent it and its
members vis a vis the SEIU.
None of the witnesses who attended the initial meeting of the
SEIU-AOBA task force were able to recall they discussed.
However, in a letter written at a later point in time, a member of
the task force refers to the discussion that took place then:

[T]here was some disagreement among the taskforce . . . as to
the pressure which might be directed at AOBA once this mat-
ter is publicized by union or other sources. Some members
feared that AOBA’s involvement might so place it in the
limelight that AOBA would become a “de facto” bargaining
unit. Other members of the task force suggested that AOBA
involvement could be kept at a low profile . . . . (i.e., perhaps
largely informational).

Noting that “the Board must expect that AOBA will be sub-
jected to very substantial controversy and pressure, the author
of the above-quoted letter noted that AOBA was well suited to
deal with the SEIU campaign, pointing out that ‘It is a task
which if not properly and troughly [sic] undertaken now will
have severe negative financial effects on all D.C. properties
both immediately and for years to come.”’ (R. Exh. 17.)
Interestingly, Louis Trotter, one of the AOBA members who
initially contacted Siegal about the SEIU organizing drive, sent
the following message to AOBA’s vice president on October 5,
1987, disclosing his interest in having both building owners and
contractors oppose unionization:

Basically, as I said at the meeting, I think we would be
wrong to view this effort solely as a legal, rather than a po-
litical problem. If momentum builds behind the effort, ei-
ther due to speeches by a Jesse Jackson/Mayor Barry type,
or any other reason, it would be very difficult for owners
and contractors to adopt the public position necessary to
derail the effort.
Therefore, I think it is imperative we plan for some
type of public “preemptive” strike. I think we should con-
sider investing up front dollars now in a public relations
campaign that will be ready to roll in full force at the first
sign that the unionization effort is going public. If we first
begin to think about how we will react to the union’s pub-
licity at the time it occurs, we will never be able to get
ahead of them . . . . [R. Exh. A.]

The AOBA-SEIU task force met again on October 7, 1987,
to develop a proposal as to what AOBA’s role should be in
confronting the justice for janitors campaign. Redacted minutes
indicate that a representative of the Lenkin Company was pre-
sent.
A day later, SEIU International President Sweeney wrote to
23 property developers in the District of Columbia requesting a
meeting and reminding them of the de facto control which they
exercised over the janitors’ working conditions. The letter
stated:

In the months ahead, Washington, D.C. will see an in-
creasingly visible and aggressive campaign to organize
janitors. That campaign will have a direct impact on D.C.
building owners and managers. While most janitors are
employed by cleaning contractors, the building operators
have the real power to improve the lives and futures of
janitors at their properties. [G.C. Exhs. 35a–w.]

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 660
On October 20, the AOBA executive committee met to con-
sider “[w]hether AOBA should take a leadership role in an
campaign to defeat the SEIU’s goal of organizing the city of
Washington.” The executive committee also had before it a
recommendation from the steering committee that:

AOBA be the organization focal point for both AOBA mem-
bers and building service contractors. AOBA’s role would be
as clearing house for information, educator on the “do’s and
don’ts” of labor law, and principal contact with the news me-
dia. [R. Exh. 29.]

In addition, the steering committee recommended retaining
Siegel and Stephen Boardman of the Arent, Fox firm to repre-
sent AOBA in these matters.
In accordance with practice, an AOBA board of directors
meeting followed the executive committee meeting. Minutes of
the board of directors’ meeting disclose that Slatton reported on
“the latest developments . . . to mobilize a campaign against
the” SEIU. (R. Exh. 30.) At the same time, a “Plan of Action”
was presented to the Board, as well as a request for its approval
of “AOBA taking a lead role in the campaign, using Allen Sie-
gel’s services as a leading management labor attorney, and the
$ (redacted) that would be needed to continue this effort.” (R.
Exh. 30.) A motion was presented and unanimously approved
“to devote Staff time, use Allen Siegel’s services, and $ to
counter the attempt to unionize serviceable employees in
Washington.” In essence, as Slatton testified, the board of di-
rectors adopted the steering committee’s proposal set forth (in
R. Exh. 29) which authorized AOBA to assume a leading role
in orchestrating activities in opposition to the JFJ campaign.
D. 1987: Respondents’ Early Campaign Activities
Beginning in the fall of 1987, and continuing over the next
few years, the parties engaged in various actions which did
little more than drive them further apart. Slatton testified that
beginning in the fall of 1987, building owners and managers,
including, but not limited to, those in the instant proceeding,
reported to him continuously about SEIU demonstrations taking
place both outside and within various office buildings. How-
ever, he could recall no specific reports of such incidents prior
to December 1987.
It was in December that the SEIU began to stage demonstra-
tions at 1413 K Street, N.W. where AOBA’s administrative
offices were located. According to Slatton’s eye witness ac-
count, at one point during the first such demonstration, ap-
proximately 20 to 25 union demonstrators paraded in front of
the building and then rushed inside, attempting to gain access to
the floor on which AOBA’s offices were located. When they
found that the elevator was blocked at that floor, they stopped
at other floors in the building chanting slogans such as “What
do we want? Justice. When do we want it?—Now.” (Tr. 1387.)
Slatton also witnessed several demonstrations at other buildings
where AOBA was holding meetings, as well as one at
Washington Square.20
In January 1988, Slatton received a report that SEIU demon-
strators had staged a sitin in the lobby of a building owned by
Cafritz, a prominent building owner who was not an AOBA
member. In May of the same year, he received another report
that several SEIU supporters had gained entry in the early

20 Witnesses testified about events prior to the 10(b) period only as
background and to show why and how AOBA responded as it did to the
Respondents’ actions.
morning hours to a Cafritz-owned building by persuading the
manager that the owner had given them permission to conduct a
survey there. Once inside, they began to slip handbills under
office doors until the manager ordered them to leave.
As Slatton described it, one of the Unions’ more intrusive ac-
tions took place in January 1989 in the Marriott Hotel where
AOBA was holding its annual awards luncheon. When Slatton
first arrived at the hotel, he found 25 to 30 SEIU demonstrators
outside, chanting slogans in support of the justice for janitors
campaign. Just as the luncheon was about to begin, Hessey,
leading the band of shouting demonstrators, came to the door of
the meeting room and told Slatton that the group wanted to
present a petition to the assembled AOBA members. Slatton
asked Hessey to leave more than once. Hessey refused to com-
ply and rudely told Slatton to get out of his way. Shortly there-
after, security guards arrived and escorted the group out of the
hotel.21
During the first few months of 1988 and continuing into the
spring, union representatives met with with various building
owners. Slatton attended a few of these meetings, as did Arent,
Fox counsel. At each such meeting, AOBA took pains to point
out that neither it nor building owners employed janitors and,
therefore, took no position rewarding the Union’s entering into
collective-bargaining agreements with independent janitorial
contractors. On one such occasion, Hessey became visibly up-
set and, pounding the table, insisted that AOBA actually con-
trolled the situation.
E. AOBA’s SEIU Legal Defense Fund
Pursuant to the proposal adopted by AOBA’s board of direc-
tors at its October 20, 1987 meeting, letters issued to both
building owners and janitorial contractors soliciting contribu-
tions to the AOBA-SEIU legal defense fund which were ear-
marked for the services of Arent, Fox counsel. (R. Exhs. 133–
134.)
In an early solicitation letter sent in February 1988, Slatton
wrote to member building owners, managers, and janitorial
contractors that it was AOBA’s intent to “withstand a ‘top
down’ organizing campaign” by Local 525, which was engag-
ing in “Demonstrations, threatening letters, demands for meet-
ings and signatures to ‘pledge’ cards.” (R. Exh. 45.) Noting that
“expert counsel has been retained to represent AOBA members
when they become the Union’s target on any given day,” Slat-
ton appealed for donations to the legal defense fund to finance
“the industry effort to fight the union on all levels.” Id.
In October 1988, AOBA again urged office building mem-
bers in the District to donate to the fund, pointing out the
SEIU’s organizing effort had been unsuccessful to date, “due to
the cooperation, involvement and financial support of building
owners/managers and building maintenance companies” which
enabled AOBA to fend off “the SEIU’s attempt to use intimida-
tion and illegal tactics to circumvent the National Labor Rela-
tions Board process.” (R. Exh. 136.) At the end of this year, in
a letter accompanying its annual dues invoice, AOBA touted as
the first of its accomplishments that it “has led the office build-
ing industry’s fight to prevent [SEIU] from organizing the jani-
torial workers in the District.” (R. Exh. 78.)
21 The Respondents failed to rebut Slatton’s testimony about this in-
cident. However, it was not received for the truth of the matters as-
serted but to provide background evidence to establish why AOBA
launched a countercampaign against the Unions.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 661
In 1989, AOBA was more circumspect in articulating its po-
sition toward SEIU organizing activities. Thus, in a March 29
solicitation letter, Edward Lenkin, then president of AOBA,
wrote that since building owners/managers “do not employ
janitors . . . [they] take no position as to whether or not there
should be a union for any given contract cleaning company.22
It is the philosophy of AOBA’s active members that such a
decision should be made, as is lawfully prescribed under the
National Labor Relations Act, by the employees of those
contractors.” (R. Exh. 82.)

Red Coats and USSI were among those who contributed
$1000 each to the fund in 1987 and 1988 and $2000 in 1990.
Lerner Corp. contributed $2000 in 1990, Tower gave $1000 in
both 1987 and 1988 and $1000 in 1990, while Lenkin donated
$2000 in the first 2 years and $1666 in 1990.
F. AOBA Training Sessions and Meetings
1. 1987
As discussed above, AOBA’s board of directors adopted a
plan of action on October 20, 1987, which authorized AOBA to
serve as a clearinghouse for information, retaining labor coun-
sel, and training “on the ‘do’s and don’ts of labor law.” (R.
Exh. 29.) In accordance with this plan, Slatton invited AOBA
members to a meeting to be held the next week, on October 27,
to discuss the SEIU’s new citywide organizational drive.
Less than a month later, reacting to reports by building own-
ers that the Union just that week had commenced “intensive
picketing and handbilling at several properties,” Slatton sent
mailgrams inviting “key representatives of all owners and
cleaning contractors” to a special meeting on November 19 at
the offices of Arent, Fox. Slatton stressed the meeting’s impor-
tance, stating that it would focus on “practical strategies about
how to deal with the Union’s tactics . . . [and] the immediate
concrete steps that should be taken when such activities occur
at your location.” (R. Exh. 32.) Counsel were present at the
meeting as were representatives of USSI, Lenkin, and Red
Coats.
Counsel also attended a November 17, 1989 AOBA board
meeting and as the minutes reflect, spoke about the SEIU and
“their attempt to make Washington, D.C. a ‘union city.”’ (R.
Exh. 33.) That same month, AOBA’s monthly newsletter con-
tained a two-page article by Arent, Fox counsel Siegel titled,
“When the Union Knocks” which offered advice on “meeting a
direct union effort to organize your employees.” (R. Exh. 35.)
First, Siegel urged the employers that if they became “aware of
any overt union activity among your janitorial personnel,” they
should “contact the AOBA office at once.” Id. Then, after out-
lining workers’ rights and employers’ obligations under the
Act, and the Board’s guidelines governing solicitation and dis-
tribution of union literature, the article concluded with advice
regarding what should and should not be done when the union
demanded recognition. The author emphasized that employers
should not take any action which might appear to justify the
union’s claim of majority support. Instead, Siegel cautioned:

The proper response when a union organizer seeks
recognition . . . is to refer him to your superiors who will
notify the organizer that: “We must decline to extend rec-
ognition to your labor organization unless and until it is

22 In fact, Lenkin’s statement was somewhat inaccurate for WSLP
did employ a few daytime janitors.
certified by the National Labor Relations Board in a man-
ner appropriate for collective bargaining.” SAY NO
MORE. Refuse to accept any documents from the union,
such as authorization cards.

On December 10, AOBA conducted a training session at-
tended by property owners, managers, and contractors, includ-
ing representatives of the Charging Parties and the primary
employers in this case. The session’s advertised purpose was to
prepare supervisors “to handle union activity when it occurs at
your buildings.” (R. Exh. 34.)
2. 1988
In early January 1988, Hessey wrote to Slatton requesting a
meeting with AOBA’s executive board. Hessey noted in the
letter that various building owners and managers were referring
him to AOBA rather than discussing the issues with him di-
rectly, leading him to believe that AOBA “has responsibility
and authority to resolve matters.” (R. Exh. 37.) However, only
Slatton and Siegel agreed to meet with the local leader in early
February. Siegel also accompanied Lenkin to a meeting with
Hessey the following month.
AOBA continued to hold training sessions and serve as a
clearinghouse for information about SEIU activities throughout
1988. For example, on February 11, AOBA briefed owners and
managers about Local 525’s recent activities and discussed
appropriate responses to future union tactics. (R. Exh. 43.)
Counsel were present, as were Lenkin and Red Coats’ represen-
tatives, but no one appeared on behalf of Lerner, Tower, or
USSI. On May 2, 1988, another meeting was held to update
AOBA members about meetings between various building
owners and Local 525, and “recent allegations and demands
made by the Union in the course of their Justice for Janitors
Campaign.” (R. Exh. 48.) Officials representing the Charging
Parties and the primary employers in this case attended. A
memo prepared by Arent, Fox counsel dated May 2, offered
advice as to steps AOBA members should take in the event
they were subjected to “demonstrations, handbilling and similar
activity by the SEIU.” (R. Exh. 51.) The memo closed with a
request that members contact AOBA or counsel if they experi-
enced any such union activity. Id.23
3. The barring notices
Slatton testified that as the SEIU demonstrations continued,
he received reports from building owners that the police were
not responding to their calls for intervention. Accordingly, a
meeting with a captain Mangily of the Metropolitan Police
Department was scheduled for May 24, 1988. As arranged,
AOBA staff members and counsel met with the captain and
discussed procedures to be employed when building owners or
managers were faced with SEIU demonstrations. Based on
advice offered by the captain, counsel prepared an “Action
Alert” memo dated June 1 which recommended steps that
building owners and/or managers should take in the event of
“any activity by individuals connected with the Justice for Jani-
tors campaign.” Specifically, the memo first advised that “In
the event of any activity whatsoever, including a simple side-
walk demonstration, call 911. . . . [I]f the demonstrators enter
the building at any time after you have made the initial call, you
should immediately dial 911 again and inform the operator that
23 I concluded that this memo was privileged. Consequently, it was
produced in response to Respondents’ subpoenas with its text almost
totally redacted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 662
there are “intruders who have penetrated the building and re-
fused to leave.” (R. Exh. 53.)
Second, the action alert memo urged the building owners and
managers to write to the SEIU Local and International forth-
with advising them that “individuals connected with their or-
ganizations are not permitted on your company’s property in
connection with the Justice for Janitors campaign.” Id. A model
“barring” letter was attached to the memo. Third, members
were advised to keep detailed records and to notify AOBA of
any incidents involving the SEIU occurring at their buildings.
Slatton testified that the recommendation regarding the barring
notice was based on police advice.
On June 28, 1988, AOBA issued a second “Action Alert”
again urging members to issue barring notices to Respondents.
Another sample of the recommended language was attached.
Subsequently, a memo was sent to AOBA members inviting
them to a July 18 meeting at which Captain Mangily and coun-
sel would discuss anticipated SEIU demonstrations. An at-
tachment repeated and expanded on the advice offered in the
June 1 memo regarding steps building owners and managers
should take when confronted with SEIU activity. A third model
barring letter was enclosed.
On various dates in June and July 1988, Tower, Lerner, and
Lenkin were among the 26 companies that sent letters modeled
on the AOBA sample to Hessey, barring activity by Local 525,
or anyone connected with the Union from entering any of the
premises which they owned or managed on penalty of prosecu-
tion for trespass. Hessey replied to each such letter on July 27,
warning that the bans were unlawful, and urging their recision.
A week later, Slatton replied on behalf of those who had issued
the notices, denying that they were unlawful. Hessey sent an-
other letter to AOBA members on August 5 which warned that
by adopting the banning policy and contributing to the anti-
SEIU legal defense fund, they were jeopardizing “any claim of
owner ‘neutrality.”’ (R. Exh. 63.)
Reacting to increased picketing and handbilling activity by
justice for janitors advocates, and anticipating that such activity
would continue in the coming months, AOBA issued a Sep-
tember 2, 1988 memo to its members which described in broad
strokes the distinction between lawful and unlawful picketing
and handbilling. The memo advised that:

individuals may engage in peaceful picketing, handbilling and
demonstrations in public areas . . . (including) the sidewalks in
front of and adjacent to office buildings . . . the public area
would not normally include an office building lobby. [R. Exh.
67.]

On September 30, 1988, the SEIU filed unfair labor practices
against all those who were involved in issuing the barring let-
ters, including the Charging Parties, AOBA, the Arent, Fox
firm, and the lawyers who represented AOBA. In substance, the
charges alleged that the barring notice constituted an overly
broad, discriminatory no-solicitation rule which banned indi-
viduals from certain premises solely on the basis of their union
status or affiliation and for engaging in protected concerted
activities. AOBA and counsel were accused of recommending,
directing, and instructing building owners and managers to
issue the banning notice.
In an effort to limit the scope of the barring notices, the
charged employers advised the Respondents that they were not
intended to apply to persons engaged in any activity protected
by the Act. Then, in late November, in order to comply with
newly issued Board law, the charged parties and other building
owners sent memos, tracking another model text prepared by
AOBA, to SEIU’s general counsel further explaining that the
barring notices were not meant to apply to janitors engaged in
organizing activity during their nonworking hours. On receiv-
ing these assurances, the Unions withdrew the charges.
However, while the Unions’ charges still were pending, the
justice for janitors campaign filed a complaint in Superior
Court for the District of Columbia alleging that the barring
letters violated various provisions of the District’s Human
Rights Act. The AOBA legal defense fund was used to pay for
AOBA’s and Slatton’s defense. On December 5, the Honorable
Henry Kennedy granted one count of the JFJ Partial Motion for
Summary Judgment, ruling, in effect, that the barring letters
were overly broad.24 Pursuant to this ruling, the AOBA build-
ing owners sent identically worded letters to the Unions entirely
rescinding their barring letters.
In the interim, on November 16, AOBA issued a special
“Alert” to its cleaning contractor members which was prepared
by counsel on behalf of the Capitol Area Building Service Con-
tractors, a trade association for janitorial employers in the Dis-
trict of Columbia. The memo indicated that union representa-
tives were claiming that Local 525 represented a majority of the
contractors’ employees and were demanding that other contrac-
tors recognize and bargain with it. The memo then stressed that

it is very important that you decline recognition you should
tell the SEIU that they are free to file a petition with the Na-
tional Labor Relations Board. . . .
It is also very important that you do not accept any of-
fer, to review “authorization cards,” petitions, or the like.
If the SEIU tries to hand you a package, you should refuse
to accept it; and if it is left with you . . . it should be sent
back to the SEIU unopened. (R. Exh. 70.)

At the year’s end, AOBA sent its annual message to mem-
bers and again proclaimed its success in the “fight to prevent
the [SEIU] from organizing the janitorial workers in the Dis-
trict.” (R. Exh. 78.)
4. 1989
As mentioned above, the SEIU continued the JFJ campaign
throughout 1989 by demonstrating and handbilling outside and
within various building sites in the District. AOBA, too, con-
tinued to offer advice and training to building owners and jani-
torial contractors who were intent on resisting the SEIU’s or-
ganizational activity. Minutes introduced into evidence were
heavily redacted to omit privileged material; nevertheless, the
records reveal that the SEIU was a topic of discussion at each
of AOBA’s monthly board of directors’ meetings. Lenkin, then
president of the organization, attended each such meeting; but
few of the officials of the other secondary and primary employ-
ers appeared on a regular basis. AOBA also continued to offer
training sessions and special meetings which addressed various
SEIU-related topics.25 In summarizing its major accomplish-

24 Judge Kennedy ruled that the barring letters not only proscribed
persons connected with the JFJ campaign from entering buildings of
AOBA members to engage in solicitation; they also “categorically deny
entry onto AOBA members’ properties to persons who are connected
with the campaign. This undoubtedly has the effect or consequence of
discriminating on the basis of source of income or place of business.”
R. Exh. 145 at 14.
25 Based on documents and averments indicating that counsel offered
legal advice throughout meetings such as those on March 23 and April
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 663
ments for the year, AOBA again claimed that it led “the office
building industry’s campaign to prevent union membership
being forced upon janitorial workers without a federally super-
vised election.” (R. Exh. 88; see also R. Exhs. 98 and 102.)
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Findings of Fact
Events which occurred in October and November 1990, al-
leged as violations of Section 8(b)(1)(A), (4)(i), and (ii)(B), are
described in chronological order below.26
1. October 19
According to the uncontroverted testimony of the administra-
tive assistant/receptionist, Sue Schneider, on October 19, at
12:30 p.m., a group of six men and women approached her
desk in the reception area of the Lerner Corp.’s offices in the
Washington Square building and asked for Property Manager
Sandra Reed. When Schneider informed the group that Reed
was not in, a spokesman asked to leave a letter for her. Schnei-
der told them she would have to check with Reed’s assistant,
Kari Cooke, and asked the group to wait in the reception area.
When the spokesman tried to hand Schneider the letter, she
recognized the JFJ logo in the corner of the envelope. As
Schneider headed for Cooke’s office, she became aware that
the delegation was following her. She asked them to return to
the reception area. Before reaching Cooke’s office, she asked
the group to return to the reception area a few more times.
However, when Schneider entered Cooke’s office, the six indi-
viduals still were behind her. Cooke also instructed them to
return to the reception area, but they entered her office anyway
and asked to leave the letter for Reed. Cooke declined to accept
it whereupon the spokesman placed the letter on her desk and
departed. The entire episode lasted less than 5 minutes. Schnei-
der, who routinely accepted deliveries from courier services,
conceded that the group behaved in a civil manner throughout
the visit and that their conduct did not differ from that of other
delivery persons.
The letter left on Cooke’s desk was from Hessey to Reed, on
stationary bearing the letterhead, “JFJ Organizing Campaign”
and dated October 19. It stated that janitors in buildings on the
Connecticut Avenue corridor had voted to strike “against our
employer, the janitorial contractors” and appealed to “the man-
agement firm of this building . . . for your assistance in finding
a fair solution to this dispute.” (GC Exh. 11.)
In similar letters dated October 23, Hessey wrote to Charg-
ing Party Lenkin and the Lerner Corporation announcing the
janitorial employees’ decision to strike. In addition, the letter
stated that the Union would hold a street meeting on October 25
at 10 p.m. outside Washington Square and advised that “As part
of our preparation for the strike, we will be trained in non-
violent, civil disobedience” (which is used) “[i]n many of our
strikes.” (G.C. Exh. 74.)
2. October 25 to 30
As Hessey had forecast, the Union held the first of a number
of afterwork street gatherings in the vicinity of Washington
Square on October 25. SEIU Organizer Brown testified that
during these rallies, the participants discussed issues and
chanted slogans such as “Justice for Janitors,” and “si se puede”

11, 1989, I did not permit Respondents to question witnesses about
them.
26 All dates refer to 1990 unless otherwise specified.
(yes we can). They also carried signs reading “Justice for Jani-
tors,” “Yes We Can,” and “More Money.” While this activity
continued on October 26 and 29, the signs that were carried did
not identify any company with whom the SEIU had a dispute.
Washington Square Security Chief Remick testified that on
October 25, a JFJ demonstrator gave him a handbill outside
Washington Square. It announced that a civil disobedience
training session would be given at the intersection of Connecti-
cut Avenue and L Streets N.W. and invited the public to attend
to assure themselves that “there will be no violence.” (G.C.
Exh. 13.)
Remick stayed on to observe the training, and close to 5:30
p.m., saw some 20 to 25 persons gather outside WSLP chanting
slogans and bearing signs that said “Justice For Janitors.” Other
signs were in Spanish and some, he thought, identified “USSI.”
As the demonstration progressed, Brown approached Remick
and another security officer and said “It’s a shame what Sonny
Abramson and Ted Lerner are doing to these people. They are
going to be sorry . . .” or words to that effect. (Tr. 104.)
Later that same evening, at approximately 8 p.m., WSLP se-
curity guard Kenneth Melvin witnessed approximately 70 per-
sons parade in a circle outside the building while carrying
noisemakers and signs. He could not clearly recall what the
signs said other than “Justice For Janitors.”
Melvin related that at 9:30 p.m., as the crowd was beginning
to disburse, and while he was taking to Remick, Brown started
walking backward in his direction. Fearing that Brown would
trip over him, Melvin put his hand against Brown’s back as he
approached. At that, Brown accused Melvin of assaulting him.
Melvin testified that when he explained that was not his intent,
Brown accused him of assault and suggested, “We could take it
up in the alley,” or “take it up in a different manner . . . . [T]hen
he . . . said that I was ignorant and that he would educate me.”
(Tr. 460–461.) Instructed to refrain from provoking fights or
responding to provocation unless physically attacked, Melvin
said he simply turned away.
On cross-examination, Melvin acknowledged that he did not
mention Brown’s alleged challenge to “take it up in the alley”
in his Board affidavit or in contemporaneous reports he was
required to file daily with his employer. Instead, Melvin’s Oc-
tober 25 incident report shows that he wrote that when he put
his hand on Brown’s back, he said: “You think your a big shit
with your night stick, badge and radio. I bet you just want to
lock me up. Come on do it. Lock me up I dare you.” (R. Exh.
22.) Melvin was not asked to explain this inconsistency, nor did
Brown or Remick, who witnessed the incident, comment about
it.
3. October 30
Brown further testified that the Respondent began a strike on
October 30 and engaged in picketing over the next 2 weeks at
the Washington Square building. During this timeframe, it is
undisputed that the picketers carried signs which identified
various cleaning contractors, including USSI and Red Coats,
but not building owners or managers.
Anthony Grigsby, a Lerner special security guard, testified
that by 6:30 p.m., a group of 25 to 30 people had congregated
outside Washington Square. They began marching on Con-
necticut Avenue carrying signs, one of which read, “How could
you live off of $4.75 an hour.” Grigsby was summoned else-
where in the building but on returning to the lobby, found 10
people there who chanted: “Fired up. I can’t take it no more”
before they exited.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 664
A Local 525 handbill, dated and apparently distributed the
next day, October 31, describes the previous evening’s strike
activity:

Last night nearly 100 janitors cleaning 12 buildings . . . along
the Connecticut Corridor struck to protest unfair labor prac-
tices by their employers. Janitors from all the buildings con-
verged on the corner of Connecticut and L Street forming a
massive picket line. During the next hour, the picketers took
over building lobbies and tied up traffic . . . during rush hour.
[G.C. Exh. 14.]

The handbill requested the reader to “call your building man-
ager to assist in finding a fair resolution to this matter.” Id.
4. October 31—picketing at the PMI garage
The Washington Square parking garage, which fronts 18th
Street and is managed by PMI, an independent company, was
the site of further SEIU activity on October 31. The garage,
which offers direct access to the office building, is used both by
tenants and the public at large. While USSI day-shift employ-
ees also may park at the facility and enter the building that way,
as a practical matter, it is quite expensive and they have not
chosen to do so.
Security Chief Remick testified that between 7:30 and 8:30
a.m., a particularly busy time of day, he and officer Melvin
observed five to six JFJ advocates, including Brown, at the
garage entrance. A few of them were standing by holding signs,
while several others who also carried signs labelled “Justice For
Janitors,” took turns parading back and forth across the en-
trance.
Melvin estimated that 15 to 20 persons took part in the pick-
eting. As cars approached the garage, the pickets halted in the
entrance, preventing some from entering. When a few cars
managed to pass by, Melvin saw Brown hit some of their roof-
tops with his fists. However, he failed to mention this conduct
in his daily incident report.
After more than half an hour of this activity, Remick ob-
served a white Chevrolet halt at a diagonal in the garage en-
trance, partially blocking both lanes. The driver, Richard
Bensinger, director of the AFL–CIO’s Organizing Institute,
slammed the car door behind him, announcing that he had
locked his keys in the car.27 One apparently irate driver, a Se-
cret Service agent, tried to ease past Bensinger’s blockade, but
in the attempt, damaged his car’s fender. PMI employees were
unable to remove Bensinger’s vehicle until 9 a.m.
During the course of the morning’s picketing, Brown ap-
proached Melvin and, with PMI employees and demonstrators
nearby, told the guard that he was “losing it,” that he was “ig-
norant” and “a crazy muscle man.” (Tr. 468.) Later that day,
JFJ pickets returned in force. Remick testified that at 5 p.m., a
group carrying JFJ signs began to assemble. Eventually the
crowd numbered close to 80. For almost an hour, the pickets
paraded in a 60-foot oval on the Connecticut Avenue side of
Washington Square. They then shifted to the L Street entrance
for 10 to 15 minutes, accompanied by the cacophonic sounds of
a bullhorn, siren, drum, and tambourine. Remick stated on di-
rect examination that the picketing “effectively blocked” the
Connecticut Avenue entrances, but on cross-examination, con-

27 The parties stipulated that Bensinger was acting as Respondents’
agent on October 31 when he parked and locked a car at the entrance to
the WSLP garage during the course of the above-described picket line
activity, thereby impeding access to and from that facility. (Jt. Exh. 1.)
ceded that ingress and egress was “[j]ust difficult.” (Tr. at 127.)
He further acknowledged having no personal knowledge that
the L Street entrance was blocked. On redirect examination,
after reviewing an affidavit he gave to Arent, Fox counsel,
Remick renewed his claim that the picketing “effectively
blocked the entrance . . . to the building.” (Tr. at 286.)
In identical letters dated October 31, Hessey wrote to inves-
tors and partners of the Lenkins informing them that janitors
who worked in Lenkin-owned and other downtown buildings
had walked off their jobs to protest their working conditions.
The letters pointed out that although building owners did not
employ the janitors, “they can and often do exercise control
over their conditions of employment.” (E.g., GC Exhs. 22 and
70.) Hessey then appealed to the coinvestors to persuade Ed-
ward Lenkin to secure living wages for the janitors. Id.
5. The events of November 1
(a) The trashing incidents and alleged assaults
Beginning on November 1, the Respondents accelerated the
JFJ campaign and initiated a number of highly visible, publicity
generating actions. The record clearly shows that one of these
events resulted in assaults on supervisors and a retail customer
at Washington Square.
The incident began at noon with 50 to 60 individuals picket-
ing in front of Washington Square. As the picketing progressed,
Security Chief Remick observed one of the pickets grab bulky
black plastic trash bags from a truck parked close to the Con-
necticut Avenue entrance, and hand them to other protesters.
This group then entered the retail lobby and headed toward a
bank of glass doors leading to the tenants’ elevator lobby. In
hot pursuit, Remick attempted to prevent three women demon-
strators from entering the inner lobby. As he reached out to
block the door, or perhaps seize a sack, one of them punched
him in the face. Property Manager Reed, who was on the inte-
rior side of this same bank of doors was struck in the face by a
bag which a demonstrator was pushing through the door. Reed
was jarred by the impact and sustained a lump on her fore-
head.28
At much the same time, other pickets entered the lobby.
Some were carrying signs and chanting slogans; others also had
trash bags which they flung about. Many of the bags split open
when they hit the ground and shredded newspaper scraps
spilled out, cluttering the lobby. Although Remick did not see
anyone actually throwing the bags over a railing, some did fall
to the lower lobby. Many of these sacks also tore apart, and
their contents were scattered about, with some of the material
drifting into an artificial pond. One of the falling bags grazed a
woman’s head as she was entering a shop on the lower level.
Shortly after Washington Square was trashed, SEIU demon-
strators engaged in similar activities at 1130 and 1133 Con-
necticut Avenue buildings which were cleaned by Red Coats
janitors. According to eyewitnesses, 20 to 30 demonstrators, 1
of whom wore a JFJ T-shirt, entered the building at the 1130
address; another 10 to 15 persons wearing business clothes and
carrying signs, rushed into the lobby at 1133 Connecticut Ave-
nue. Both sets of demonstrators tore open plastic garbage bags,
dumped the contents—newspaper strips—in the lobbies and left
after 5 minutes. Jill Bussey, concierge at the 1133 address,
28 Minor and quite natural discrepancies exist between Remick’s and
Reed’s accounts of this fracas, but I do not find that this undermines
their credibility.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 665
testified that following the demonstration, “JFJ” stickers were
found affixed to the lobby walls.29
The property managers for the 1130 and 1133 buildings testi-
fied that in the fall of 1990, Red Coats janitors worked from 6
to 10 p.m. However, they had no personal knowledge as to
whether this schedule actually was followed. They also ac-
knowledged that Red Coats maintained offices in each of the
buildings. While Red Coats had unrestricted access to their
office at the 1130 building, the property manager at 1133 in-
structed the Red Coats firm in a November 8 letter, “that clean-
ing services are to be provided between the hours of 6:00 p.m.
and 11:00 p.m.” and that “Red Coats employees are not to be in
the building prior to or after the above hours.” (R. Exh. 19.)
Some time after these trashing incidents occurred, Stephen
Lerner, SEIU International building trades director and a par-
ticipant in the planning meeting leading to those demonstra-
tions, was interviewed for National Public Radio. Among other
comments he said, “Everybody wants to pretend janitors don’t
exist, they come at night, little mysterious people and every-
thing is clean in the morning. What we do is put it right back in
people’s face. They can’t ignore that these folks are treated this
way. . . . [W]hat we find again and again is that the tenants are
upset by it. Many are sympathetic and they say to their building
owner, we want this settled.” (Tr. 1017–1019.)
At the hearing, Lerner testified that the foregoing quote was
part of a generic discussion not specifically addressed to the
trashing episodes. Instead he maintained that the trashings were
designed as symbolic protests against the contractors, not the
building owners, to “build public support and . . . awareness
about our activity.” (Tr. 1022.)
When asked if the part of the SEIU’s plan was to spread the
trash around the lobby, Lerner answered, “No . . . the plan was
we purposely took clean newspaper and put it in garbage bags .
. . was not involved in any discussion about spreading it
around. The idea was to place the bags.” (Tr. at 1022–1023.)
Although the SEIU may not have formed a premeditated
plan to scatter the contents of the trashbags, the fact is that the
bags opened either inadvertently or purposely. It is illogical to
assume that the Charging Parties at three separate locations
suddenly and simultaneously conceived of a plot to rip open the
bags in order to blame the resulting damage on the Respon-
dents. Moreover, Lerner was not in any of the buildings when
these events occurred and thus could not contradict the testi-
mony of a number of eyewitnesses or the concrete evidence of
the trashings provided by photographs.
(b) Evening demonstration at Abramson’s home
The Respondents brought the JFJ campaign to Albert
Abramson’s doorstep on the evening of November 1. Abram-
son, one of Washington Square’s owners, testified that at
around 7 p.m., while he, his son Gary, and another guest were
at his home in Bethesda, Maryland, he heard a commotion at
the door. On looking outside, he saw a crowd of approximately
50 people milling in his circular driveway and on the street
chanting slogans. Another group of six were at his front door.
Abramson did not open his door to the callers. Instead, he

29 Bussey failed to mention the stickers in a report to the building’s
property manager. However, videotapes of the lobby taken just after the
incident show JFJ stickers mounted on the walls. It is improbable that
anyone but JFJ supporters put them there. I further conclude that
Bussey’s failure to recall whether she was given instructions regarding
the JFJ campaign was due to a simple lapse of memory.
called the police who responded promptly and herded all of the
demonstrators to the street. When Abramson left his home 30 to
45 minutes later to attend a concert, his driveway was not
blocked.
The demonstrators left a letter for Abramson which repeated
a familiar theme; that is, although janitors were striking against
the unfair labor practices of their contractor employers, they
wanted to meet with him because “Even though you are not our
employer, we know that you can assist in resolving these prob-
lems. . . . Like (other named building owners), you control the
amount of money available for janitorial services. They chose
to make changes by announcing their neutrality to our organiz-
ing efforts and making more money available for janitorial
services.” (GC Exh. 80.)
A handbill, apparently intended for distribution to Abram-
son’s neighbors, also was left at his home. It stated that janitors
who were striking over low wages paid by cleaning contractors,
worked at buildings such as Washington Square “which Sonny
Abramson, your neighbor owns.” (GC Exh. 20.) The leaflet
asked, “Why would Sonny Abramson employ a contractor that
the Federal Government alleges violates workers basic rights to
organize” and urged the reader to ask Abramson why he did not
support justice for janitors. Id.
6. November 2
Tower Construction, an Abramson-owned limited partner-
ship, contracted with USSI for janitorial services at a building it
managed at 1707 L Street N.W. The building’s garage was
separately managed by Monument Parking and cleaned by its
own parking attendants. At 7:30 a.m. on November 2, a group
of five or six people with signs which the garage supervisor
thought said, “Justice for jobs,” “We can’t live off of $4.70 an
hour,” began walking back and forth across the garage en-
trance. Their walk slowed to a virtual halt whenever a car ap-
proached and although most cars were able to enter the garage,
a few chose to drive on. Once, when a motorist shouted some-
thing to the pickets, one of them yelled back, “call manage-
ment.” The garage supervisor summoned the police but the
pickets had departed by the time they arrived.30
On the evening of November 2, a group of 40 to 50 demon-
strators targeted a building at 2301 M Street N.W. in which the
Lenkin family had an ownership interest. SEIU Organizer
Brown acknowledged that he knew janitors working at this
building were not involved in a strike. At the start of the dem-
onstration around 7:30 p.m., Brown tried to leave leaflets con-
cerning the JFJ campaign inside the front door of the building
which was part residential, part commercial, but found it
closed. He maintained that the demonstrators, who marched
single file, 2 to 3 feet apart at the building, were not engaged in
picketing.
A security guard at the 2301 M Street building testified that
the demonstration was a noisy affair, lasting 20 to 30 minutes.
He saw demonstrators carrying JFJ placards, pounding on cans,
shouting chants, and calling out “Down with Eddie Lenkin.”
30 Respondents suggest in their brief that no evidence connected the
SEIU to this demonstration. Respondents apparently demand a more
exacting standard of proof than is required in administrative litigation.
In the circumstances present here, it is fair to infer that the garage su-
pervisor, who had no prior exposure to the JFJ campaign, mistook or
misread justice for janitors signs for ones which he thought said “Jus-
tice for jobs.” From this, I further infer that the demonstrators were
involved in Respondents’ organizational drive.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666
7. November 6
JFJ demonstrators appeared unannounced at Lenkin head-
quarters in Bethesda, Maryland, in midafternoon on November
6. Property Manager Lorraine Flenner testified that she was in a
second floor office on that date when an unknown woman
walked in unexpectedly and thrust handbills at her and a col-
league. Flenner told the woman she did not belong there; that
she was in a private office. Others also told the woman to leave,
but she ignored their remarks and continued to deposit flyers in
other offices. After Flenner telephoned the police, she learned
that another woman had placed handbills in a first floor rest-
room. The incident lasted no more than 10 to 15 minutes.
The handbill left at the Lenkin facility on that occasion con-
trasted the poverty level wages and employment conditions of
janitors with the wealth of office building landlords and con-
cluded with a plea to hold developers “accountable for the fi-
nancial impact they have on city residents—including the way
they treat janitors.” (GC Exh. 25.)
On the same day, Respondents distributed leaflets outside
Washington Square announcing that the strike would continue
and that strikers and supporters would “stage another march
and rally with non-violent civil disobedience” at noon on
March 8 at Connecticut Avenue and L Street. The leaflet did
not identify an employer, but asked tenants to “call your build-
ing manager and . . . clean out injustice.” (GC Exh. 16.)
In an effort to limit the scope of the Respondents’ JFJ cam-
paign, WSLP counsel wrote to the SEIU’s general counsel on
November 7 that USSI employees would not be scheduled to
work at Washington Square between the hours of 4 and 10 p.m.
The letter also stated that the entrances to Washington Square,
reached through an alley at Connecticut and K Street, would be
reserved for USSI employees, suppliers, and agents so that
picketing at other times or at other entrances would be regarded
as evidence of the SEIU’s unlawful secondary objective.
In addition to the November 7 notice, Washington Square
Property Manager Reed testified that a USSI official advised
her that the janitors’ hours would change from the current 6
p.m. to midnight schedule to 10 p.m. to 4 a.m. sometime in
November. Two weeks later, Reed was advised that the hours
again would be altered to extend from midnight to 6 a.m. Al-
though Reed did not personally observe janitors working during
these hours, she explained that she relied on the information
given her to advise tenants and security guards, who were re-
sponsible for giving the janitors keys to the various offices, of
the revised schedule.31 One such guard, Kenneth Melvin,
whose night shift began at 6 p.m. during the period in question,
indicated that in October, the janitors completed their shifts at
11 p.m. but some time thereafter, their hours were changed so
that they left the building at 6 a.m.
Notwithstanding the notice of new shift hours, Local 525 and
USSI employees engaged in picketing at Washington Square
from November 7 to 15, beginning at around 6 p.m.32 Thus,
security officer Melvin, who worked a 3 to 11:30 p.m. shift,
testified that on November 12, 13 to 18 people, some of whom

31 Reed’s testimony regarding the altered working times for the jani-
tors was admitted not for the truth of the matter, but to show the actions
she took in reliance thereon.
32 Responding rather quickly to a question on cross-examination,
Hessey appeared to suggest that he participated in picketing every
evening from November 8 and 15 at approximately 6 p.m. On closer
examination, he may have meant that on each occasion that picketing
took place between November 8 and 15, he was present.
carried JFJ placards, gathered at 6 p.m. in front of the building,
and circled for a half hour. They departed, but reappeared in
short order; chanting slogans as they snaked through the lobby
from the L Street door to the Connecticut Avenue exit. Another
security officer, Grigsby, recalled this event somewhat differ-
ently. He thought that 25 to 30 people were involved in the
November 12 picketing; that they left for half an hour and on
returning, remained in the lobby for 5 to 10 minutes. These few
inconsistencies do not alter the fact that there were at least 13
individuals picketing outside Washington Square at 6 p.m. in
the evening; that they left for some uncertain period of time,
and on their return, marched through the lobby for a period of
time that could have been as brief as 3 minutes or as long as 10
minutes. The same officer observed close to 100 people, some
with JFJ signs, picketing outside the building at 5 p.m. the fol-
lowing day.
8. November 8
(a) The handcuffing incident
Respondents engaged in two new publicity-garnering activi-
ties on November 8. The first began shortly before noon when
a group of 60 or more persons wearing business suits or JFJ
jackets began chanting and parading in an oval on both the
Connecticut Avenue and L Street sides of Washington Square.
Because of the large number of persons taking part in the dem-
onstration, some pedestrians walked in the street, a somewhat
hazardous undertaking given the amount of traffic in the area at
the noon hour.
As the picketing continued, approximately 10 demonstrators
sat down in 2 separate entrances to the facility and handcuffed
themselves to each other while the 2 end persons also hand-
cuffed themselves to the doors, thereby effectively blocking
access to the building through those portals. However, two
other entrances, one at the corner of Connecticut Avenue and L
Street, and the other on L Street were unimpeded. The police
eventually removed the demonstrators and arrested them after
severing their handcuffs with boltcutters.
Union leaders testified that Washington Square was selected
as the site for the handcuffing because such activity at a promi-
nent location was certain to attract public attention. Stephen
Lerner denied that the act of civil disobedience was directed at
the building owner. However, the following day, Respondents
distributed a flyer which announced the arrests followed by the
comment that “[t]he cleaning contractors and the building man-
ager appear to be unwilling to insure that the janitors are treated
fairly.” (G.C. Exh. 17.)
(b) The Aspen Hill Athletic Club episode
The Aspen Hill Racquet Club and Fitness Center, located in
Silver Spring, Maryland, is owned in part by the Lenkin family.
The club’s fitness director, Kevin Sweeney, testified that on the
evening of November 8, when he went to the fitness center
located on the lower level of the two-story building, he saw six
people standing on the oval track passing out leaflets to patrons.
Perhaps a half-dozen club members were trying to use the 4- to
5-foot wide track at the time. Sweeney stated that several of the
joggers felt compelled to leave the track to avoid the handbill-
ers and by so doing, were forced toward an area where some
construction was underway. After identifying Lenkin as “a
major owner of this club,” the handbill explained that:

Janitors cleaning his buildings work for cleaning companies
who pay minimum wage with few if any benefits. In fact,
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 667
some of janitors [sic] cleaning his building are strike [sic]
against the cleaning companies they work for. While Lenkin
is not the janitors [sic] employer, he has the power to hire
cleaning companies who will respect the janitors’ rights and
pay decent wages with benefits.

Sweeney asked the group to leave. Although they left the
track promptly they only agreed to move upstairs. On moving
up to the floor, Sweeney found another 30 to 40 people distrib-
uting flyers.33 He again asked them to leave. Identifying him-
self as the group’s leader, Kevin Brown told Sweeney that if he
had any concerns he should speak with “Eddie Lenkin,” a name
that meant nothing to Sweeney at the time. Brown also asked
Sweeney for information about club membership. After hearing
Brown warn a staff member that he would take legal action if
he failed to provide his correct name, Sweeney instructed an
employee to telephone the police. While Sweeney and Brown
were talking, the JFJ supporters continued to distribute leaflets.
After about a half hour, and a third request by Sweeney that
they leave, the JFJ protesters left the building and headed for a
waiting van and bus. Some of the demonstrators shouted taunts
at a few employees who had accompanied Sweeney outside,
and then began to run toward the Club’s front entrance. Fearing
that a fight might break out, Sweeney asked Brown to intercede
but he declined to do so. The group left shortly after the police
arrived.
9. November 14—a second protest at Albert Abramson’s home
On November 13, WSLP filed the charges giving rise to the
instant litigation, and on the same date, moved for a temporary
restraining order in D.C. Superior Court to enjoin Respondents’
activities at the Washington Square building. On November 14,
JFJ advocates staged a second demonstration at Albert Abram-
son’s home.
That evening, at 7:30 p.m. on hearing noise outside his
home, Abramson saw a group of approximately 50 persons in
the street parading 3 to 4 feet apart while holding lighted can-
dles and chanting slogans, at the direction of someone with a
bullhorn. They carried no signs and did not set foot on his
property. Stephen Lerner had given the police advance notice
of the vigil and they were at the scene until the vigil ended
some 15 or 20 minutes later.
A handbill was left at Abramson’s home which accused him
of “reaping tremendous profits at the expense of janitors clean-
ing office buildings he owns.” (GC Exh. 21.) While the state-
ment noted that USSI, not Abramson, was the janitors’ em-
ployer, it nevertheless pointed out that “he has the power to hire
cleaning companies who pay decent wages with benefits.” Id.
10. November 15—The invasion of Arent, Fox
Pursuant to Respondent’s request, International President
Sweeney, Research Director Chu, and Service Division Orga-
nizing Director Lerner met with Edward Lenkin and Arent, Fox

33 The handbill, titled, “Lenkin Squashes Janitors Rights,” stated that
Melvin Lenkin, “a major owner of this club,” was using “high-priced
lawyers to deny janitors cleaning many of his downtown office build-
ings their basic rights.” (C. Exh. 31.) While making it clear that Lenkin
was not the janitors’ employer, the leaflet asserted that “he has the
power to hire cleaning companies who will respect the janitors’ rights
and pay decent wages with benefits.” Id. Lastly, the reader was urged to
telephone Lenkin if he or she “was concerned that the fees you pay to
this club could be increased to pay for Lenkin’s attempts to deprive
janitors of their basic human rights.” Id.
counsel at 9 a.m. in a downtown Washington, D.C. club. After
an unproductive discussion in which Lenkin was urged to sup-
port the JFJ campaign to no avail, Sweeney stated that he did
not believe the parties were making progress, and the SEIU
delegation departed.
Several hours later, Chu joined some 50 other persons in a
picket line at Washington Square. After patrolling for a half
hour, he and others on the line entered the lobby and took the
stairs to the fourth floor, the first of three floors which housed
the Arent, Fox law firm. Harriet Dunbar, the firm’s fourth floor
receptionist, testified that a woman approached her desk and
asked to distribute leaflets. Dunkar denied her request. Mo-
ments later, Chu and approximately 15 to 20 others, reached the
receptionist’s desk, and, on asking if they could distribute
handbills, met with the same response. Chu then asked to see
Alan Siegel and Joanne Ochsman, the attorneys with whom he
had met earlier that day, and was told they worked on the sixth
floor.
The demonstrators proceeded to the fifth floor and wandered
around. They then mounted an internal staircase to the sixth
floor where they asked an attorney where Siegel’s office was
located. The firm’s office manager, Robert Thatcher, ap-
proached the group and asked them to wait at the sixth floor
reception area. After this request was repeated three or four
times, the group slowly made their way back to the reception
area, but on their way, continued to seek Siegel, calling out his
name in a sing-song manner.34
As the group passed a conference room, one of them opened
the door and asked for Siegel. A demonstrator again opened the
door to another, larger conference room in which six people
were seated, and asked for Siegel. An attorney in the room
ordered the intruders to leave. They obeyed just as the special
police arrived.
On the same date, Sweeney sent a letter to the Lerners and
Abramsons, and urged them, as owners of the building which
contracted with USSI, to use their good offices “to facilitate a
resolution of our dispute.” (GC Exh. 36.)
11. November 16—The trip to Ronald Abramson’s home
At 8 p.m. on November 16, Ronald Abramson’s house-
keeper, Norma Espena, answered the doorbell to find Kevin
Brown there with three other individuals and another 40 to 60
demonstrators nearby in the street. When Brown asked to speak
with Abramson, Espena said he was not home and called to
Ronald’s 9-year-old son, Jordan, who joined her. Brown ex-
plained to the youngster that the people with him worked at
buildings in which his father had an interest and explained he
wanted to speak with him. Jordan suggested that Brown talk to
his father at the office. Brown then handed a leaflet to Espena
which bore the following bold headline: “Responsible Neighbor
or Greedy Exploiter.” Like some of the other JFJ literature, the
sheet stated that while Abramson is not the janitors’ employer,
he has the power to hire cleaning companies who will pay de-
cent wages and obey the law.” (GC Exh. 34.)
Jordan insisted that Brown should talk to his father at the of-
fice and grabbed the leaflet from Espena. He read it, and ac-
cording to the housekeeper, began to tremble. Other demonstra-
tors joined Brown at the doorstep, but at Jordan’s insistence,
Espena shut the door and turned on a burglar alarm. Before
departing the area, JFJ supporters distributed copies of the leaf-
34 Siegel and Ochsman were in superior court that day on WSLP’s
motion for a temporary restraining order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668
let which Jordan had read to the Abramson’s neighbors. Espena
testified that Jordan was upset for several hours following this
encounter.
IV. THE MOTIONS FOR PARTIAL SUMMARY JUDGMENT
ARE GRANTED
A. The Respondents’ Affirmative Defenses
In answering the complaint, Respondents raised affirmative
defenses based on their contention that the Charging Parties
were not neutrals under Section 8(b)(4) because of actions they
took as members of AOBA.35 Prior to the start of the hearing,
the General Counsel and the Charging Parties moved to dismiss
the defenses, asserting that they were deficient as a matter of
law and, therefore, could not protect the Respondents from
liability for violating the Act.36 I denied the motions with leave
to renew at the close of Respondents’ case-in-chief. Pursuant to
that ruling, the Charging Parties and the General Counsel
moved for summary judgment as to the following affirmative
defenses which turned on the Charging Parties’ membership in
AOBA.37

3. WSLP, separately, and through all of some of its
principals, and its principals, have engaged in a joint ven-
ture or alliance with USSI, both through the Apartment
and Building Owners Association (“AOBA”), and other-
wise, to oppose the unionization of janitors by Respon-
dents, or either of them, in the metropolitan Washington
D.C. area and have thereby forfeited any claim to neutral
status.
4. Lenkin, separately and through its principals, have
engaged in a joint venture or alliance with Red Coats, both
through AOBA and otherwise, to oppose the unionization
of janitors by Respondents, or either of them, in the met-
ropolitan Washington, D.C. area and have thereby for-
feited any claim to neutral status.
. . . .

35 Sec. 8(b)(4)(B) reads:
(b) It shall be an unfair labor practice for a labor organization
or its agents—
. . . .
(4)(i) to engage in, or to induce or encourage an individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or refusal in the course
of his employment to use, manufacture, process, transport, or oth-
erwise handle or work on any goods, articles materials, or com-
modities or to perform any services; or (ii) to threaten, coerce, or
restrain any person engaged in commerce or in an industry affect-
ing commerce, where in either case an object thereof is—
. . . .
(B) forcing or requiring any person to cease using, selling
handling, transporting, or otherwise dealing the in the products of
any other producer, processor, or manufacturer, or to cease doing
business with any other person, or forcing or requiring any other
employer to recognize or bargain with a labor organization as the
representative of his employees unless such labor organization
has been certified as the representative of such employees.
36 The Charging Parties initially moved to dismiss affirmative de-
fenses two through six whereas, the General Counsel’s motion was
confined solely to affirmative defenses three, four, and six.
37 In fact, Charging Party WSLP was not an AOBA member. How-
ever, for the purposes of this argument, WSLP partners, Lerner and
Abramson (through Tower), were members, and, therefore, will be
treated as synonymous with WSLP.
6. Lenkin, WSLP and/or their principals, acting sepa-
rately and through AOBA, have enmeshed themselves in
the dispute that Respondents, or either of them, have with
janitorial contractors, including Red Coats and USSI in the
metropolitan Washington, D.C. area and thereby forfeited
any claim to neutral status.38

In substance, Respondents contend in affirmative defenses
three, four, and six, that the Charging Parties are not entitled to
neutral status because under AOBA’s auspices, WSLP and
Lenkin engaged in a collaborative effort with the primary con-
tractors, USSI and Red Coats, to oppose union representation of
their janitorial employees. By so doing, WSLP and Lenkin
enmeshed themselves in the primaries’ disputes and thereby
forfeited their claim to neutrality as secondary employers pro-
tected by Section 8(b)(4)(B) of the Act.39 In short, Respondent
defends its allegedly unlawful conduct on the grounds that it
picketed or demonstrated against no one except primary em-
ployers.
B. Procedural Posture of the Motions to Dismiss
In presenting the “AOBA” defenses as framed by paragraphs
3, 4, and 6, Respondents specifically disavowed reliance on
either branch of the well-established ally doctrine.40 Neverthe-
less, in their original motions to dismiss, Charging Parties and
the General Counsel argued that an asserted neutral employer
may lose its neutrality only if it is an ally; that is, an employer
“Whose neutrality is alleged to be compromised by the per-
formance of ‘struck work’; [or] . . . who is claimed to be so
closely related to the primary employer that the two constitute a
single employer or single enterprise.” Mine Workers (Boich
Mining), 301 NLRB 872 (1991), enf. denied 955 F.2d 431 (6th
Cir. 1992) (accord: Teamsters Local 560 (Curtin Matheson
Scientific), 248 NLRB 1212, 1213 (1980)).
I denied these motions to dismiss without prejudice, finding
no precedents which supported the proposition that the ally
38 Respondents’ second and fifth affirmative defenses, set forth be-
low, turn on the well-established theory that the Charging Parties were
joint employers with the USSI and Red Coats and, thus, were not im-
mune from primary picketing. This defense is examined in sec. II of
this part.
2. WSLP, or its principals, exercise sufficient control over,
and are sufficiently involved in, the performance of janitorial du-
ties at 1050 Connecticut Avenue, N.W., Washington, D.C. by
employees being paid by USSI to forfeit any claim to neutral
status.
. . . .
5. Lenkin, or its principals, exercised sufficient control over,
and are sufficiently involved in, the performance of janitorial du-
ties by some employees being paid by Red Coats to forfeit any
claim to neutral status.
39 Sec. 8(b)(4) does not use the term “neutral,” Rather, it has been
defined by case law as a word of art applicable to the employer “who is
not involved in a labor dispute with his immediate employees over . . .
issues directly affecting the terms and conditions of employment of his
own employees . . . [and] is not in a position legally to grant the union’s
organization or economic demands.” (Emphasis in original.) A.C.E.
Transportation Co., 120 NLRB 1103, 1108–1109 (1958).
40 The ally doctrine, pursuant to which employers may be found un-
entitled to neutral status, has developed into two branches: “one involv-
ing cases where an employer’s neutrality was alleged to be compro-
mised by his performance of ‘struck work,’ and another involving cases
where neutrality was contested on the ground that the boycotted em-
ployer and the primary employer were a single employer or enterprise.”
Curtin Matheson Scientific, supra at 1213.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 669
doctrine was the exclusive means by which a respondent could
attack the asserted neutrality of a secondary employer. Indeed,
language in several cases suggests that under certain circum-
stances, a secondary employer can be stripped of the protection
afforded to a neutral under Section 8(b)(4) even in the absence
of an ally relationship with the primary. See, e.g., Curtin
Matheson Scientific, supra at 1214, where the Board observed
that “the question of neutrality ‘cannot be answered by the
application of a set of verbal formulae. Rather the issue can be
resolved only by considering on a case-by-case basis the factual
relationship which the secondary employer bears to the primary
employer.”’41 Acme Concrete & Supply Corp., 137 NLRB at
1324 “We need not here determine whether the relationship . . .
is one of ‘single employer’ or ‘ally.’ It is sufficient that Acme
and Twin County have such identify and community of inter-
ests as negative the claim that Acme is a neutral employer.”
Although the facts in these cases and their holdings are not
analogous to the unique circumstances presented in the instant
case, dicta indicates that the Board is more concerned with
examining the real relationships among the parties in light of
the statute’s underlying purposes than it is with clinging to rigid
rules of analysis.
If the ally doctrine is not the only basis for losing neutral
status, as the foregoing cases suggest, the question which fol-
lows is, then, what evidence will suffice to warrant forfeiture of
an asserted neutral’s neutrality? As the Charging Parties con-
tended in their post-trial Motion for Summary Judgment, a
review of the applicable case law compels the conclusion, that
even short of proof that an ally relationship exists, a respondent
still must demonstrate that the secondary employer exercises
substantial, actual, and active control over the working condi-
tions of the primary’s employees. In accordance with the Gen-
eral Counsel’s and Charging Parties’ arguments in their Mo-
tions for Summary Judgment, I am constrained to conclude that
there is insufficient evidence here to prove that the Charging
Parties exercised the requisite degree of control over the em-
ployment conditions of the primary’s employees, through
AOBA, or otherwise.
C. The Applicable Case Law
The extensive control a secondary employer must exercise
over a primary before the Board and the courts will find a loss
of neutrality is clearly revealed in the history of the Sears, Roe-
buck case. Carpet Layers Local 419 v. NLRB, 429 F.2d 747
(D.C. Cir. 1770), remanding 176 NLRB 876 (1976), on remand
190 NLRB 143 (1971), affd. 467 F.2d 392 (D.C. Cir. 1972).
Sears sold carpeting at a price which included installation costs,
arranging for installation with small businesses at Sears’ ex-
pense. Sears prepared cost estimates and installation plans
which it assigned to designated installers who operated out of
separate locations under their own names. The installers were
wholly responsible to customers for defective work, set their
employees’ wage rates and work schedules, negotiated installa-
tion prices with Sears at arms’ length and worked for other than
Sears’ customers. Neither they nor their workers were subject
to Sears’ personnel regulations or benefit programs. Conclud-
ing that the union, which had picketed Sears as part of its effort
to organize one of the installers, had engaged in secondary
conduct, the Board found that the installers were independent

41 Quoting Vulcan Material Co. v. Steelworkers, 430 F.2d 446, 451
(5th Cir. 1970), cert. denied 401 U.S. 963 (1971).
contractors and that Sears was not “sufficiently related to
[them] to destroy its neutrality.”
On review, the court of appeals first noted that Sears’ lack of
control over the installers’ labor policies; including fundamen-
tal employment factors such as wages and working conditions
and whether the union was to be recognized, was not conclu-
sive of its alleged neutral status. The court then observed that
Sears had a direct economic interest in the installers’ unioniza-
tion because it profited from the installations as well as its car-
pet sales and remanded the case to the Board to reexamine
whether the independent installer contractors “stand in such a
business relationship with Sears as to require” a finding that a
labor dispute with the installers could justifiably include Sears
as a primary employer. Carpet Layers Local 419 v. NLRB
(Sears, Roebuck), 429 F.2d 747, 754 (D.C. Cir. 1970).
On remand, the Board reaffirmed its original decision and
this time, the court of appeals granted enforcement. 467 F.2d
396 (D.C. Cir. 1972). Adopting the Board’s statement of rele-
vant facts as summarized above, the court in Sears II, agreed
that the installers were independent contractors, a factor, which
while not dispositive, was viewed to have

great importance in determining the issue of “secon-
dary/primary” status under section 8(B)(4)(B), if for no other
reason than the fact that the factors on which the independent
contractor finding rests demonstrate that one party does not
exercise control over the other in significant respects.

Id. at 399. The Board and the court relied on other indicia of the
installers’ independent contractor status, including the fact that
they could and did turn down work for Sears and performed
work for that company’s competitors, as evidence that Sears’
“control over the independent operations of the installers are
not so pervasive, nor is the economic interdependence such that
Sears should be regarded as a ‘primary’.” Significantly, the
court pointed out that other independent contractor relation-
ships, “e.g. maintenance or janitorial work—might be closely
analogous to the Sears-installers relationship” and that “such
relationships were ordinarily intended to be considered ‘secon-
dary’ for section 8(b)(4)(B) purposes.” Id. at 405 fn. 38. If this
was not the general rule, then all subcontractor relationships
might result in the loss of neutral status.
In Sears, as in the instant case, the union stressed the secon-
dary employer’s real power over the wages and working condi-
tions of the primary employees, rooted in its controlling the
fees paid to the installers. However, the Board and the court
rejected the notion that these economic realities negatived
Sears’ neutrality, as that term has been construed under the
statute. While acknowledging that Sears would be “concerned
with whether those installers join a labor organization, insofar
as such circumstances might affect the fees” they charged for
their services, the court observed that a union would not at-
tempt to pressure another employer which was “wholly uncon-
cerned and unconnected with the party with whom it had its
dispute” Id. at 401 fn. 19. Consequently, the court reasoned that
“something more than mere economic interdependence be-
tween two parties is required before one loses its secondary
status with respect to the labor disputes of the other.” Id. at 401.
Accordingly, notwithstanding Sears’ interest and involvement
in the installers’ economic affairs, the court concluded that
Sears’ control and economic involvement was such that it could
“meaningfully accede to all of the Union’s demands only by
ceasing to do business with the installers.” Id. at 406. In reach-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670
ing this conclusion, the court evidently rejected a literal con-
struction of the words “wholly unconcerned,” which Senator
Taft used to describe the neutral employer during the legislative
debate on Section 8(B)(4).42 Sears obviously was not wholly
unconcerned; yet, within the legal context, it was deemed a
neutral.
In fact, even before the Sears cases, the Board and the courts
agreed that strong economic interdependence between secon-
dary and primary employers, without proof of other substantial
connections between the two, would not defeat the protection
that Section 8(b)(4)(ii)(B) affords a neutral. See, e.g., J. G. Roy
& Sons Co. v. NLRB, 251 F.2d 771 (1st Cir. 1958); Los Angeles
Newspaper Guild Local 69 (San Francisco Examiner), 185
NLRB 303 (1970), enfd. 443 F.2d 1173 (9th Cir. 1971), cert.
denied 404 U.S. 1018 (1972). For example, in Retail Clerks
Local 1001 v. NLRB, 627 F.2d 1133, 1138 (1979),43 the court
affirmed the Board’s decision that the Safeco title insurance
companies were neutrals in a labor dispute between a title in-
surance underwriter and the union, even though the underwriter
supplied virtually all Safeco’s business, owned stock in that
firm, and had common officers. The court found that notwith-
standing these significant economic ties, the evidence did not
show “actual or active common control . . . as to denote an
appreciable integration of operations and management poli-
cies.”44 See also NLRB v. International Board of Electrical
Workers, 542 F.2d 860, 865–866 (2d Cir. 1976).45
While “all strands of mutual interest” between a secondary
and primary employer are considered in evaluating neutrality,46
the Board often accords principal (albeit, not dispositive)
weight to one factor—that is, the extent to which the secondary
exercises active and actual control over the daily labor relations
of the primary. Thus, in Electrical Workers Local 2208 IBEW
(Simplex Wire), 285 NLRB 834, 838 (1987), the Board ruled
that the parent, company of a wholly owned subsidiary did not
forfeit its neutral status although it served as the subsidiary’s
banker, made benefit packages available to its employees, ap-
proved its final budgets, was advised about its collective-
bargaining proposals, and approved a prior labor agreement,
where, inter alia, the subsidiary was controlled by a president
who had final authority for its affairs, including labor relations,
on a day-to-day basis. Carpenters, supra, 301 NLRB 410, ex-
emplifies the same principle. There, the Board held that a union
which struck a wholly owned corporate subsidiary did not vio-

42 93 Cong.Rec. 4198, II Legislative History of Labor-Management
Relations Act, 1106 (1947).
43 Reversed on other grounds 447 U.S. 607 (1980).
44 Quoting Television Artists AFTRA v. NLRB, 462 F.2d 887, 892
(1972), and Teamsters Local 639, 158 NLRB 1281, 1286 (1966).
45 The Board’s actual control test has been applied as a predicate to
finding loss of neutrality in cases involving common ownership of two
employers. Teamsters Local 639 (Poole’s Warehousing), 158 NLRB
1281, 1286 (1966), Los Angeles Newspaper Guild Local 69 (San Fran-
cisco Examiner), 185 NLRB 303 (1970), enfd. 443 F.2d 1173 (9th Cir.
1971), cert. denied 404 U.S. 1018 (1972). As explained in Teamsters
Local 560 (Curtin Matheson Scientific), 248 NLRB 1212, 1213 fn. 8
(1980), the actual control doctrine stemmed from the Board’s recogni-
tion that potential control is inherent in every situation involving com-
mon ownership. Consequently, unless common ownership is coupled
with other attributes of integration, that factor alone might be the basis
for finding a loss of neutrality, a consequence the Board is unwilling to
endorse. Accord: Carpenters (Missoula White Pine Sash), 301 NLRB
410, 426 fn. 8 (1991).
46 Curtin Matheson, supra at 1214.
late Section 8(b)(4)(i) and (ii)(B) in picketing a sister subsidi-
ary, where the parent, company’s vice president of operations
actively controlled the labor relations of both subsidiaries, was
deeply involved in collective bargaining, and approved the
decision to transfer replacements to the struck facility from
another corporate entity unaffected by the strike. (Id. at 426).
See also Mine Workers (Boich Mining), 301 NLRB 872, 873 fn.
11 (1991) (“nature of the day-to-day operations and of the labor
policies of the two entities are of paramount consideration. . In
fact . . . the most important factor may be centralized control of
labor relations.). Ultimately, this “issue can be resolved only by
considering on a case-by-case basis the factual relationship
which the secondary employer bears to the primary employer.
Curtin-Matheson, supra at 1214.
D. Application of Precedents to Facts Bearing on
Motion to Dismiss
Unlike the factual circumstances involved in the foregoing
precedents, the Charging Parties and janitorial contractors in
the case at bar were not linked by ties of common ownership.
However, the Respondents submit that the parties had an
equally compelling alliance: the asserted neutrals, WSLP and
Lenkin, and the primary employers, USSI and Red Coats, were
united by virtue of their active participation in an AOBA-
coordinated campaign designed to thwart SElU’s organizational
goals. In other words, Respondent contends that AOBA acted
as the Charging Parties’ and primary employers’ authorized
agent, thereby binding them in a common effort to oppose the
union’s efforts to win voluntary recognition. To put it still an-
other way, through AOBA, the Charging Parties were “in ca-
hoots” with the primary employers, and not “helpless victims of
quarrels that do not concern them at all.” Production Workers
Union of Chicago v. NLRB, 793 F.2d 323, (D.C. Cir. 1986)
(citations omitted).
As proof that AOBA acted in an agency capacity for the
Charging Parties, Respondent notes that Lemkin, Lerner, and
Schneider (representing Tower) specifically adopted the resolu-
tion which initiated the countercampaign. As president of
AOBA, Lenkin solicited contributions to the SEIU Legal De-
fense Fund and authored other letters to AOBA members re-
garding the Association’s countercampaign. The asserted neu-
trals and the primary employers, among others, contributed to
the SEIU legal defense fund, relied on Arent, Fox as their legal
representative in SEIU-related matters, and implemented
AOBA-recommended actions, including the issuance and re-
traction of letters barring the Unions’ access to their various
buildings.
Respondents further submit that the neutrals were aware that
the janitorial companies with whom they did business were
involved in the countercampaign since representatives of the
Charging Parties and the secondary employers attended the
same training meetings which addressed Union-related issues
and relied on the same lawyers for advice in dealing with the
SEIU. Consequently, by authorizing AOBA to act on their be-
half in SEIU-related matters, and by taking similar actions pur-
suant to AOBA’s recommendations, they were acting in concert
to pursue a common objective.
Under well-established Board law, and in accordance with
Section 2(13) of the Act,47
47 Sec. 2(13) states:
In determining whether any person is acting as an “agent” of
another person so as to make such other person responsible
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 671

[a] principal may be responsible for the act of his agent within
the scope of the agent’s general authority or the scope of his
employment even though the principal has not specifically au-
thorized . . . the act. It is sufficient if the principal empowered
the agent to represent him in the general area in which the
agent acted.

Holiday Inn-Glendale, 277 NLRB 1254, 1261 (1985).48 Al-
though agency questions typically arise in cases where the
Board is assessing employer liability for the acts of others,
there is no reason not to apply that doctrine here in determining
whether the Charging Parties surrendered their neutrality by
endorsing and participating in the AOBA-directed countercam-
paign. While it is true that AOBA was a voluntary trade asso-
ciation whose members were not obliged to accept its policies
and practices, the Charging Parties affirmatively chose to em-
brace and consistently implemented AOBA’s recommended
strategies vis-a-vis the SEIU. Thus, they voluntarily “were
acting in concert in pursuit of a common objective.” Hodcarri-
ers Local 300 (Fiesta Pools), 145 NLRB 911, 917 (1964). Con-
sequently, they may be held responsible for AOBA’s conduct
in so far as the JFJ campaign was concerned, as long as the
Association’s representatives were acting within the zone of
their apparent, authority. See NLRB v. Teamsters Local 815
(Montauk Iron), 290 F.2d 99, 103 (2d Cir. 1961).
The question which follows is whether the actions taken by
the Charging Parties as participants in the AOBA-led campaign
were such as to lead to a loss of neutrality. In answering this
question, Respondents might have come within the ambit of
established 8(b)(4)(B) case law had they adduced convincing
proof that WSLP and Lenkin, through AOBA’s agency, or
otherwise, were so involved in, or exercised such actual and
active control over the management policies and/or labor rela-
tions of the primary employers as to become enmeshed in the
janitorial contractors’ labor dispute with the SEIU.49 This, the
Respondents failed to do.
Although Respondents introduced hundreds of documents
and examined many witnesses during weeks of trial, they were
unable to adduce sufficient evidence to meet their burden of
proof that the Charging Parties’ actions overstepped the expan-
sive borders of neutrality.50 Rather than showing that WSLP
and Lenkin were directly involved in the primary employers’
labor disputes in ways which were legally reproachable, the
evidence points in the other direction: it indicates that AOBA’s
strategy was to take steps which would distance the Charging
Parties from the labor dispute and remove them from direct
involvement in the primaries’ labor relations.

for his acts, the question of whether the specific acts per-
formed were actually authorized or subsequently ratified
shall not be controlling.
48 Citing Longshoremen ILGWU (Sunset Line), 79 NLRB 1487,
1509 (1948).
49 Respondents’ theory may seem less novel if AOBA is analogized
to the parent, company of a corporation, and the Charging Parties and
janitorial contractors to its subsidiaries.
50 Respondents were frustrated in their search for probative evidence.
Many of the subpoenaed documents were received in severely redacted
form because in camera inspection convinced me that the contents were
privileged. Moreover, witnesses associated with both the Charging
Parties and the Respondents suffered from faulty memories. This
should be neither surprising nor suspect since most were asked to tes-
tify in 1991 about specific events, meetings, and conversations held 3
or 4 years earlier.
In contending that AOBA, on the advice of legal counsel,
fomented a deliberate, antiunion campaign and thereby en-
meshed themselves and the Charging Parties in the primary
employers’ labor dispute, the Respondents rely on the follow-
ing factors: (1) AOBA created a special litigation fund used to
oppose SEIU’s organizing efforts to which the Charging Parties
and the primaries in this matter contributed; (2) AOBA retained
Arent, Fox to represent its members in matters relating to the
JFJ campaign; (3) AOBA offered special training and counsel-
ing on techniques to avoid unionization, and (4) coordinated
direct activities by owners/managers and contractors against the
Respondents’ organizing activities. For the following reasons, I
do not find that these factors establish that the the Charging
Parties lost their neutrality.
E. The Elements of the AOBA Countercampaign
1. Creation of a special litigation fund and retention of counsel
As detailed in the fact statement, Respondents began an or-
ganizing drive in the summer of 1987 among janitorial employ-
ees in the District of Columbia. Respondents allege that before
commencing any overt activity, they attempted to meet with
building owners, property managers, and AOBA representa-
tives to explain their goals and overcome any latent hostility to
union representation. In Respondents’ view, the Charging Par-
ties, and their cleaning subcontractors among others, overre-
acted and, without any provocation, immediately began to
mount an active campaign of opposition.
The Charging Parties cast the Respondents’ party activities
in an altogether different light. They assert that the SEIU made
it clear from the outset that they were bent on winning volun-
tary recognition in part by exerting pressure against building
owners and managers. They further suggest that AOBA Execu-
tive Vice President Slatton became particularly alarmed when
Local 525’s president, Hessey, threatened that the Union would
run over him if he got in their way and, therefore, it would be in
his best interests to cooperate. Shortly after this episode, SEIU
President Sweeney wrote to numerous owners and managers
announcing the Unions’ intent to run an “increasingly visible
and aggressive campaign (which) will have a direct impact on
D.C. building owners and managers.” Given such pronounce-
ments, AOBA and its owner-members could harbor no illusions
about the Respondents’ intent to implicate them in their organ-
izational efforts.
From the Respondent’s perspective, the Charging Parties
should have remained silent in the face of their organizing
campaign or better yet, capitulated. This, the Charging Parties
were neither willing nor required to do. While it is true that the
SElU had not begun to take concrete actions, it had been issu-
ing storm warnings. The Charging Parties and other members
of AOBA took these warnings seriously. They became alarmed
by Respondents’ early warning signals that they meant to en-
compass building owners within their campaign. Thus, they
insisted that the proposal authorizing AOBA to take a leader-
ship role in a countercampaign developed as a response to
SEIU’s threats of pressure against them. As the court recog-
nized in Sears II, supra at 400, secondary employers, by defini-
tion, are bound to be very much concerned about the unioniza-
tion of the primary’s employees because of the economic im-
pact this might have on their cleaning contracts. Consequently,
it is not surprising nor does it necessarily evidence a loss of
neutrality that the Charging Parties and other AOBA members
authorized the trade association to mount a countercampaign.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 672
The proposal which the Charging Parties and others en-
dorsed, contained the following components: AOBA would
serve as a clearinghouse for information, educate members on
the do’s and don’ts of labor law, and serve as the principal con-
tact with the media. Further, the Arent, Fox law firm would be
retained as AOBA’s advisor and would be financed by a special
fund. The fact that the Charging Parties were early supporters
of the AOBA plan does not in itself jeopardize their neutrality,
for it would be naive to assume that building owners and man-
agers would do nothing at all in the face of the SEIU’s uncon-
cealed interest in involving them in their campaign. Thus, it
serves no useful purpose to ask whether the Charging Parties
were instrumental in initiating the countercampaign. Rather, the
relevant inquiry here requires close evaluation of the counter-
campaign’s components and careful consideration of whether
by implementing AOBA’s strategies, the Charging Parties im-
properly impeded the Respondents’ right to organize the jani-
torial employees, thereby compromising their asserted neutral-
ity.
The Respondents submit that one of the principal ingredients
of the AOBA countercampaign was the establishment of a legal
defense fund which financed Arent, Fox’s efforts to formulate
and implement an owner/contractor strategy to oppose SEIU’s
organizational drive. Specifically, Respondents contend that the
Charging Parties enmeshed themselves in the labor dispute by
contributing to and benefitting from this special fund to which
the primary employers (among others) also donated. It is undis-
puted that the Charging Parties and the primary employers were
among those who responded to AOBA solicitations, granting
substantial sums to the fund in 1987 through 1990. It also is
uncontroverted that this fund was used to pay for the services of
Arent, Fox legal counsel. The bare fact that the Charging Par-
ties and the cleaning contractors contributed to a common fund
and received the same legal advice concerning their responses
to the JFJ campaign, means little without examining the con-
tents of that advice. The record is incomplete on this score be-
cause witnesses’ memories had failed and most documents
either were redacted or withheld altogether on grounds of attor-
ney-client privilege. However, available evidence indicates that
counsels’ advice was well within the bounds of what the law
permits. In fact, documents in the record support the inference
that counsels’ efforts were focused in large part on offering
advice to insure, not forfeit, the Charging Parties’ neutrality.
Counsels’ activities on AOBA’s behalf generally fell into the
following categories: They (1) attended AOBA meetings and
offered advice to AOBA staff and members on how to cope
with the JFJ campaign; (2) conducted training sessions; (3)
accompanied owners to meetings requested by the SEIU; (4)
and represented AOBA and the Charging Parties in various
legal actions against the Respondents.51 Each of these activities
is discussed further below.
The record shows that counsel frequently attended AOBA
meetings, many of which were held in Arent, Fox’s offices,
where their role was to provide legal information and advice to
members and officers regarding the SEIU’s organizational
drive. Although the precise nature of this advice was not dis-
closed on grounds of privilege, some documentary evidence
suggests that under counsels’ tutelage, AOBA perceived its role

51 The word “they” refers primarily to Arent, Fox attorneys, Alan
Siegel and Joanne Ochsmann. Although they often both appeared at
AOBA-sponsored events, occasionally, one or the other attended alone.
to be primarily reactive to events initiated by the Respondents.
For example, several notices sent to members announcing
forthcoming meetings indicated that they would be informed
about how to deal with SEIU pressure tactics. (See, e.g., R.
Exhs. 32, 43.) Another notice stated that the purpose of the
meeting would be to advise members about meetings “sched-
uled with Local 525, incidents surrounding various Local 525
demonstrations and recent allegations and demands made by
the Union in the course of their Justice for Janitors campaign.”
(R. Exh. 129.)
An October 5, 1989 notice invited AOBA members to a
meeting in the Arent, Fox offices to discuss the “joint em-
ployer” issue. (R. Exh. 87.) It stands to reason that counsel’s
purpose was to instruct the participants about the characteristics
and consequences of a joint employer relationship so that they
might avoid it. In other words, Arent, Fox presumably warned
AOBA members, including the Charging Parties and their re-
spective cleaning contractors, to avoid sharing control over
labor policies or employment conditions affecting the janitorial
workers.
Nothing in the statute or in precedent suggests that neutrality
is abandoned if owners, managers, and cleaning contractors
participate in the same meetings at which their lawyer instructs
them on legally correct ways to avoid joint employer relation-
ships. As the Charging Parties aptly note in their brief, the
Board affirmatively sanctions coordinated activity by a neutral
and primary employer when it results in shielding the neutral
from picketing at a common worksite. See, e.g., Sailors Union
(Moore Dry Dock), 92 NLRB 547 (1950) (Board approved the
maintenance of a reserved gate through which employees unin-
volved in the labor dispute could enter without being subject to
picketing). By a parity of reasoning, neutral status should not
be forfeited when secondary and primary employers come to-
gether to obtain advice about the criteria which defines a joint
employer relationship, if their purpose is to avoid that relation-
ship in order to insulate the neutral from the effects of the
strike. To rule otherwise would put neutrals in the position of
being deprived of information regarding legal means to protect
themselves from secondary activity. To suggest, as the Respon-
dents appear to do, that a secondary employer may not obtain
or act on legal advice, and must do nothing at all if it wishes to
retain its neutral status demands an exercise of restraint not
required by the cases construing Section 8(b)(4).
Although Respondents attempted to extract concrete infor-
mation from numerous witnesses about the meetings at which
the SEIU was a frequent topic of discussion, no one was able to
recollect anything specific. Such failures of memory cannot be
the basis for inferences either that the witnesses were purposely
concealing harmful information or that counsel used the meet-
ings as a platform to disseminate antiunion advice. As stated
earlier in this decision, it is understandable that witnesses were
unable to remember specific discussions at meetings which
occurred some 2 or 3 years before. Given the witnesses inabil-
ity to provide detailed accounts of these meetings, the record
remains barren of evidence indicating that they provided a fora
where the Charging Parties and primary employers, with assis-
tance from counsel, plotted to interfere with Respondents’ ef-
forts to organize janitors throughout the city.
The SEIU Legal Defense Fund also may have paid counsel
for a November 1987 article in AOBA’s newsletter, entitled,
“When the Union Knocks.” As the title implies, the purpose of
the article was to inform AOBA readers about what they should
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 673
and should not do if they become involved in the SEIU cam-
paign. Initially, the author took a balanced approach, advising
the reader about the rights and limitations on employee, em-
ployer, and union organizational activity under the Act. How-
ever, it is not difficult to discern that the author’s basic premise
was that AOBA members wanted to avoid union representation
of their employees. Thus, in explaining how to respond “When
the Union Knocks,” and demands recognition based on an as-
serted card majority, Siegel exhorted the reader to avoid certain
steps which could be construed as conferring voluntary
recognition. Similar advice was offered in a November 16
memo sent to AOBA cleaning contractor members.52 Such
advice can hardly be characterized as wholly neutral for neither
the article nor the memo mentioned that an employer also has
the right to grant voluntary recognition should he chose to do
so.

Respondents argue that if AOBA, its labor counsel and its
members, particularly the Charging Parties, were genuinely
uninvolved in the SEIU labor dispute, they would not have
been concerned if the cleaning contractors granted voluntary
recognition nor insisted on Board-conducted elections. The
flaw in Respondents’ argument stems from their assumption
that “wholly unconcerned” means that neutrals must be totally
disengaged from a labor dispute if they are to retain their neu-
trality.53 As the court made clear in Sears II, supra at 401 fn.
19, the phrase “wholly unconcerned” cannot be taken literally.
Here, Siegel proposed that employers withhold voluntary rec-
ognition and “instead, demand that the Union prove its claim of
majority status in an appropriate bargaining unit through a La-
bor Board election”; advice based on the Supreme Court’s deci-
sion in Linden-Lumber Division v. NLRB, 419 U.S. 301
(1974).54 In other words, the Siegel article and a subsequent
AOBA memo which contained much the same advice, simply
encouraged employers to do what the law permitted. Even if the
Charging Parties can be held responsible for the Siegel article
under an agency theory, it would be anomalous to penalize
them for endorsing a legally valid position.
No evidence was presented in this case that either USSI or
Red Coats acted on Siegel’s advice, but even if there was such
proof, it would have no bearing on the Charging Parties’ neu-
trality. Much closer ties must exist between secondary and
primary employers than were present here before the Board and
the courts will declare a forfeiture of neutral status. See e.g.,
Simplex Wire Co., supra; Teamsters Local 391 (Vulcan Materi-
als), 208 NLRB 540 (1974), enfd. 543 F.2d 1373 (D.C. Cir.
1976), cert. denied 430 U.S. 967 (1977).
52 Although Slatton’s name appears as the author of the memo, it
evidently drew on the contents of the Siegel article, and may have been
drafted by him.
53 Whether it is appropriate to conclude that the Charging Parties en-
dorsed the point of view espoused in the Siegel article depends on
whether he was acting within the authority conferred as their agent in
this matter. Given the Charging Parties’ support of the proposal estab-
lishing the countercampaign, their approval of Siegel’s retention to
represent AOBA in the JFJ campaign, their contributions to the SEIU
legal defense fund, and their failure to refute the contents of the article,
it is fair to conclude that the Charging Parties may be held responsible
for the views expressed therein. See Star Kist Samoa Inc., 237 NLRB
238, 246 (1978).
54 In Linden-Lumber, supra, the court held that an employer pre-
sented with authorization cards purporting to demonstrate the union’s
claim of majority status, has no obligation to recognize the union.
2. The barring letters
Lastly, as further proof that the owners, AOBA and Arent,
Fox were engaged in a conspiracy to oppose the JFJ campaign,
Respondents point to barring letters which the Charging Parties
issued at AOBA’s direction, prohibiting SEIU members and
their supporters from entering their buildings. To properly
evaluate Respondents’ claim, it is necessary to consider the
events which preceded the issuance of the barring letters.
As Slatton’s unrefuted testimony makes clear, property own-
ers began notifying him that the police were failing to respond
promptly to reports of disruptive demonstrations taking place
outside and within their buildings. Consequently, Slatton and
counsel met with a police official to establish appropriate pro-
cedures which owners or managers might invoke in seeking
police assistance should such intrusions recur. Based on a po-
lice recommendation, AOBA prepared a model barring letter
which it urged its members to issue. Thereafter, the Charging
Parties, and 26 other companies, sent such letters to Hessey. In
addition to Slatton’s testimony, documents were introduced
into evidence establishing a clear connection between the SEIU
demonstrations and the owners’ interest in putting an end to
intrusions within their buildings. The barring letters themselves
say nothing about demonstrations outside the buildings; they
proscribe only activity which was set to take place within the
premises. Given the circumstances leading up to the issuance of
the barring letters, I am persuaded that they were designed to
discourage further disruptive conduct, not to impede lawful
union activity.
In certain respects, the letters went beyond what was neces-
sary to accomplish the Charging Parties’ stated objective of
excluding disruptive demonstrators from their premises. They
prohibited entry even if only one person associated with the JFJ
campaign was involved, whether or not that individual was a
janitorial employee working at the building or a union staff
member, without regard for the purpose of the entry. For exam-
ple, under the terms of the barring letter, a SEIU supporter who
entered the WSLP lobby to patronize one of the retail shops
located there could be charged with criminal trespass. For this
reason, the Honorable Henry Kennedy of the Superior Court for
the District of Columbia granted partial summary judgment on
Respondents’ motion to overturn the ban, finding that it consti-
tuted unlawful discrimination on the basis of source of income
under the D.C. Human Rights Act in that it precluded entry by
anyone associated with the JFJ campaign even if for a business
purpose unrelated to union activity. The letters also drew no
distinctions between demonstrators who were union personnel
and those who were employed by the cleaning contractors ser-
vicing the respective buildings.
In issuing the barring letters, the Charging Parties partici-
pated in a coordinated effort; yet, it does not follow that they
were enmeshed thereby in a concerted movement to oppose
union organization. In light of Respondents’ forays within vari-
ous buildings in the downtown area, I am persuaded that the
Charging Parties’ motives were primarily defensive; in other
words, they sent the letters to prevent intrusive demonstrations
inside their facilities. Supporting this conclusion are the barring
letters themselves. In clear terms they prohibit SEIU activists
from entering the targeted buildings; they did not purport to
proscribe organizing activities which occurred in public places
on adjacent sidewalks.
In Service Employees Local 32B–32J (Dalton Schools), 248
NLRB 1067 (1980), the union contended that the secondary
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674
employer had surrendered its neutrality by promising the local
that any contract reached with the primary contractor would be
applied retroactively if the unlawful picketing ceased. In reject-
ing the union’s contention, the administrative law judge, with
Board approval stated: “No precedent is advanced to support
the view that a neutral’s efforts, however fruitless, to seek relief
from a union and get out from under unlawful picketing some-
how aligns the neutral with the primary so as to justify picket-
ing the former.” Id. at 1069. This statement is equally applica-
ble to the instant case.
3. Conclusion
If this case had been tried in the court of public opinion,
there might be some who would conclude that in reality, the
Charging Parties possessed ultimate control over the janitors’
wages. They also might agree with the Respondents that build-
ing owners and managers were not disinterested neutrals as that
term is defined in laymen’s terms, having no interest in Re-
spondents’ labor dispute with the primaries, and that to assume
otherwise elevates form over substance. Thus, they would con-
clude that WSLP and Lenkin were legitimate targets in the JFJ
campaign.
Of course, this case was tried in an administrative forum
governed by a statute and precedents which strictly circum-
scribe a labor union’s secondary activity. Existing law rests on
the premise that no secondary employer is wholly unconcerned
in a labor dispute since the primary employer’s increased labor
costs can be passed on to it. Given this premise, a demanding
burden of proof confronts respondent unions which hope to
prove a loss of neutrality.
Here, the Respondents were required to establish that the
Charging Parties, through AOBA or otherwise, actively exer-
cised significant control over USSI’s and Red Coats’ labor
relations. Sears II, 467 F.2d at 399–400. Respondents did not
meet this exacting standard. The evidence presented did not
establish that WSLP or Lenkin had significant bonds with USSI
or Red Coats, respectively, which allowed the Charging Parties
to dictate or determine their labor policies. While the primary
and secondary employers in this case contributed to the same
legal fund, received advice from the same legal counsel, and
attended training sessions and meetings together, they engaged
in these activities independently and voluntarily in defense of
their individual interests. It is quite likely that the Charging
Parties and the secondary employers had identical and hostile
views toward the SEIU organizational drive, for they each ac-
tively participated in AOBA’s countercampaign by contributing
to a common fund which paid retained counsel for services
which included advising them of their legal rights and respon-
sibilities, keeping them informed about Respondents’ tactics,
and offering representation during meetings with Union offi-
cials. Affirmatively, the Charging Parties, among others, issued
and then retracted barring notices, which by their terms, were
designed to protect their properties from invasive demonstra-
tions. However, under present precedent, none of the foregoing
actions are sufficient to establish that WSLP and Lenkin had
the sort of relationship with the secondary employers which
would warrant their loss of neutral status pursuant to Section
8(b)(4)(B). Thus, it follows that the Respondents have failed to
produce sufficient evidence to sustain their contentions that the
Charging Parties forfeited their neutral status. Accordingly, the
General Counsel’s and the Charging Parties’ Motions for Par-
tial Summary Judgment are granted.
V. CONCLUDING FINDINGS REGARDING THE JOINT EMPLOYER
ALLEGATIONS
In its second affirmative defense, Respondents submit that
Lerner, as managing agent for the Washington Square building,
was a joint employer of the USSI daytime cleaning crew, and,
therefore, secondary allegations relating to SEIU activity at that
site should be dismissed.55 In support of this defense, Respon-
dent relies wholly on the testimony of one day-shift janitor,
Francis Adigun. He testified that Cynthia Carr, Washington
Square maintenance supervisor, assigned him his duties,
checked on his performance, provided him with supplies and
frequently asked him to substitute for absent WSLP cleaners at
which time he would use WSLP equipment.
I have no doubt that Adigun testified truthfully.56 However,
while I credit his testimony, it does not follow that Carr exer-
cised such significant control over his or any other janitor’s
terms and conditions of employment as to convert WSLP into a
joint employer with USSI. A review of the record reveals that
Lerner’s involvement in supervising USSI employees was
minimal. No one associated with WSLP hired, disciplined, or
terminated USSI employees. USSI alone handled such matters
and USSI alone made the decision to transfer Adigun to Wash-
ington Square from another location. While Carr directed
Adigun to his workstation and pointed out the nature of his
duties when he first reported to work at the Washington Square
building, she did not exercise much discretion in doing so, for it
may be inferred that he was filling a vacancy. By Adigun’s own
testimony, when problems arose, Carr contacted his supervisor,
Allen, who would visit the building as often as necessary to
resolve them.57 Similarly, in Charlotte Union Bus Station, 135
NLRB 228 (1962), no joint employer relationship was found
where, inter alia, bus station personnel reported complaints to
contractor’s management, not to its employees. Moreover, the
fact that Carr checked the areas which Adigun cleaned did not
necessarily make her his supervisor. Few building managers
who must satisfy their lessees, would do less to insure that a
cleaning service with which it had contracted was fulfilling its
obligations in a satisfactory manner. See Teamsters Local 732,
229 NLRB 392, 403 (1977).
In providing some supplies to the USSI day-shift cleaners,
and in asking Adigun to substitute for absent WSLP workers,
Carr did exercise some authority which bears the earmarks of a
joint employer relationship. However, it appears from Adigun’s

55 Respondents’ second affirmative defense is that “WSLP, or its
principals, exercise sufficient control over, and are sufficiently involved
in, the performance of janitorial duties at 1050 Connecticut Avenue,
N.W., Washington, D.C. by employees being paid by USSI to forfeit
any claim to neutral status.
Respondents also alleged in their fifth affirmative defense that Len-
kin and Red Coats were joint employers. Since Respondents introduced
no evidence to prove this contention, the Charging Parties’ motion to
dismiss this defense is granted.
56 Any difficulty that Adigun had in answering questions was due to
the fact that he was foreign born, and perhaps uneducated. It was ap-
parent, from his entire aspect, that he answered questions to the best of
his ability.
57 The General Counsel and Charging Parties struggled to prove that
another USSI janitor at the 1050 location, James Taylor, was a supervi-
sor. Yet, although he was on site, no one in WSLP’s management
turned to him when problems arose. Although he alone possessed a key
to USSI’s suboffice in the building, and delivered timecards each week
to the central office, these functions reveal little more than that he was a
trusted employee.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 675
testimony, that he was the only USSI employee whom Carr
occasionally asked to fill in for absentees. More than this is
needed to prove that WSLP and USSI were joint employers.
Adigun was only one of five USSI janitors who worked on the
day shift at the same time that three WSLP maintenance work-
ers also were on the job. In contrast, 50 to 60 USSI janitors
worked on the night shift at Washington Square with no other
WSLP cleaning employees or supervisors on the scene.58
Surely, the tail would be wagging the dog if the experience of
one employee sufficed to prove the presence of a joint em-
ployer relationship here. A loss of neutrality cannot hang on
such a slender reed. In fact, the relationship of USSI janitors to
WSLP employees and supervisors was not unlike that found at
many common worksites. In such circumstance, one independ-
ent contractor may exercise some supervision over another
contractor’s work with out eliminating the independent status
of each, or making the employees of one contractor the em-
ployees of the other. See NLRB v. Denver Building &
Construction Trades Council, 341 U.S. 675, 689–90 (1951).
VI. CONCLUDING FINDINGS AS TO THE 8(B)(4) VIOLATIONS
A. Applicable Legal Principles
Having decided that WSLP and Lenkin are entitled to neutral
status, the next question to be resolved is whether the Respon-
dents engaged in prohibited conduct, for a proscribed objective
within the meaning of Section 8(b)(4)(B)(i) and (ii).59 Broadly
speaking, 8(b)(4)(i) addresses union appeals which are calcu-
lated to induce or encourage employees to withhold their ser-
vices from their employer, while (ii) turns on whether the un-
ion’s conduct threatened, coerced, or restrained and normally is
thought to apply to the secondary employer.
If read literally, the phrase “any individual employed by any
person” in subsection (i) could apply to any employee, includ-
ing the highest officials of a business. However, the Supreme
Court clarified the scope of the provision by ruling that “the
applicability of subsection (i) turns upon whether the union’s
appeal is to cease performing employment services or is an
appeal for the exercise of managerial discretion” which would
fall within the ambit of subsection (ii). NLRB v. Servette, Inc.,
377 U.S. 46, 50 fn. 4 (1964).
The Court also considered the meaning of the words “induce
or encourage,” and determined that they “are broad enough to

58 WSLP security guards were on duty at night and distributed keys
to the USSI workers. However, this does not evidence integrated opera-
tions as much as it indicates the sort of coordination which is necessary
when different groups of employees work at a common situs.
59 The relevant language in Sec. 8(b)(4)(i) and (ii) provides:
Section 8(b) It shall be an unfair labor practice for a labor organiza-
tion or its agents—
(4)(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, transport,
or otherwise handle or work on any goods . . . or to perform any
services; or (ii) to threaten, coerce or restrain any person engaged
in commerce or in an industry affecting commerce, where in ei-
ther case an object thereof is:
(B) forcing or requiring any person to cease doing business
with any other person, or forcing or requiring any other employer
to recognize or bargain with a labor organization as the represen-
tative of his employees.
Some of the activities also are alleged to have violated Sec. 8(b)(1)(A).
The text of this provision is quoted in this decision.
include in them every form of influence and persuasion.” Elec-
trical Workers IBEW v. NLRB, 341 U.S. 694, 701–702 (1951).
Presumptive evidence of inducement or encouragement will be
found where a union pickets at entrances used by neutral em-
ployees without complying with the Moore Dry Dock stan-
dards. See, e.g., Teamsters Local 139 (Ready Mixed Concrete),
200 NLRB 253, 254 (1972), Los Angeles Building & Construc-
tion Trades Council (Silver View), 216 NLRB 307, 308 (1975).
Cf. William Burns Detective Agency, supra at 437 (Board re-
fused to find 8(b)(4)(i) violation where union neutralized im-
pact of picketing at trade show by notifying other unions that
their members were free to continue working at exhibit hall and
by failing to seek strike sanctions).
Under certain circumstances, words alone (either written or
oral) may induce or encourage secondary boycotts. For exam-
ple, in NLRB v. Electrical Workers IBEW Local 3, 477 F.2d
260, 265 (2d Cir. 1973), a union agent told members that in his
opinion, working with strike replacement workers would be a
violation of trade union principles. Subsequently, a number of
those members refused to handle goods distributed by the re-
placements. The court held that the agent’s request for coopera-
tion was an inducement or encouragement. See also Hoffman
Construction Co., supra, 292 NLRB at 562 (union violated
8(b)(4)(i) by distributing leaflets to neutral employees and tell-
ing them their unions supported picketing); Painters Local 48
(Hamilton Materials), 144 NLRB 1523 (1963), enfd. 340 F.2d
107 (9th Cir. 1965), cert. denied 381 U.S. 914 (1965) (state-
ment to secondary supervisor that primary was unfair was un-
lawful inducement).
With respect to both subsections, the General Counsel must
prove that at least one of the union’s objectives was to force or
require any person, “to cease doing business with any other
person.” The phrase, “cease doing business” is not literally
construed to require a total termination of a business relation-
ship between the secondary and primary employers. It also
includes conduct which is intended or likely to disrupt or alter
the business dealings between the two. See NLRB v. Operating
Engineers Local 825, 400 U.S. 297, 304–305 (1971); C.D.G.
Inc., supra; Rollins Communications, supra; New Beckley Min-
ing Co., supra. This proposition holds true even where a neu-
tral may have no direct relationship with the primary but is
being pressured to intercede in the union’s dispute. See Team-
sters Local 732 (Servair Maintenance), 229 NLRB 392, 400
(1977); Iron Workers Local 272 (Miller & Solomon Construc-
tion), 195 NLRB 1063 (1972), enfd. 479 F.2d 920 (D.C. Cir.
1973).
Provisos to Section 8(b)(4) exempt from primary picketing
and “publicity, other than picketing,” if the publicity is for the
purpose of truthfully advising the public, including consumers
and members of a labor organization, that the picketed person
distributes products obtained from an employer with whom the
labor organization has a primary labor dispute.
Determining whether a union’s activities had a lawful objec-
tive is particularly problematic where, as here, the primary
employees work at a secondary employer’s premises. In con-
fronting the recurring problems associated with picketing at a
common situs, the Supreme Court pointed out in Denver Build-
ing Trades Council v. NLRB, 340 U.S. 675, 692 (1951), that the
Board must take into account the

dual Congressional objectives of preserving the right of labor
organizations to bring pressure to bear on offending employ-
ers in primary labor disputes and of shielding unoffending
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676
employers and others from pressures in controversies not their
own.

In light of these sometimes conflicting objectives, the Board
has long relied on the following oft-quoted Moore Dry Dock
guidelines to determine whether the union’s intent in engaging
in picketing at the secondary situs is primary and lawful or
unlawful because it has a proscribed secondary object:60
(a) The picketing is strictly limited to times when the situs
of dispute is located on the secondary employer’s premises; (b)
at the time of the picketing the primary employer is engaged in
its normal business at the situs; (c) the picketing is limited to
places reasonably close to the location of the situs; and (d) the
picketing discloses clearly that the dispute is with the primary
employer.
The controlling factor underlying these criteria is the re-
quirement that the picketing “be conducted so as to minimize
its impact on neutral employers insofar as this can be done
without substantial impairment of the effectiveness of the pick-
eting in reaching the employees of the primary employer.”
Nashville Building & Construction Trades Council (H. E.
Collins Contracting), 172 NLRB 1138, 1140 (1968), enfd. 415
F.2d 385 (6th Cir. 1970). In short, neither party’s rights are
absolute and unqualified.
It is the General Counsel’s burden to prove that a union has
not complied with the Moore Dry Dock standards. Electrical
Workers IBEW Local 970 (Interox America), 306 NLRB 54
(1992). However, if a union’s activities meet these guidelines,
its conduct is presumed to be primary and lawful. Id. Because
the standards are not to be applied in a rigid, mechanistic man-
ner, failure to comply will not be regarded as proof of illegality
per se. Rather, the Board and the courts look to the “totality of
the circumstances” to ascertain whether the union’s purpose
was to enmesh the neutral in its labor dispute. Whether the
union acted with unlawful intent “is measured as much by the
necessary and foreseeable consequences of its conduct as by its
stated objective.” Mine Workers (New Beckley Mining), 304
NLRB 71 (1991). In considering the “totality of the circum-
stances, the Board takes into account any evidence which sheds
light on the union’s objectives, including statements and con-
duct prior to the unlawful picketing. See NLRB v. National
Assn. of Broadcast Employees (ABC), 631 F.2d 944, 950–51
(D.C. Cir. 1980); Laborers Local 332 (C.D.G. Inc.), 305 NLRB
298 (1991); Electrical Workers 441 IBEW (Rollins Communi-
cations), 222 NLRB 99 (1976), enfd. 569 F.2d 160 (D.C. Cir.
1977).
B. Application of Legal Principles to Facts of this Case
An analysis of the evidence in this case begins with the rec-
ognition that the Respondents were well aware of the distinc-
tions which the law draws between primary and secondary
employers. They understood full well that their primary labor
dispute was with USSI and Red Coats, among others. At the
same time, the record suggests that the SEIU was convinced
that the law was out of sync with reality; that power over the
janitors’ terms and conditions of employment was concentrated
in the hands of a relatively small band of property owners, in-
cluding the Charging Parties. Pursuant to their perspective, the
Respondents decided early on to bring pressure to bear on
building owners through a variety of tactics.

60 Sailors Union (Moore Dry Dock), 92 NLRB 547, 549 (1950).
Of course, not all conduct directed at secondary employers is
outlawed by Section 8(b)(4). Distinctions must be drawn “more
nice than obvious” between lawful and unlawful secondary
acts. Electrical Workers v. NLRB, supra at 674. In drawing such
distinctions, two questions must be answered: (1) did the Re-
spondents use proscribed means; that is, did their conduct in-
duce or encourage any person to strike or refuse to perform any
services, or did it threaten, coerce, or restrain any person; and if
so, (2) was the Unions’ purpose to force or require any person
to cease doing business with a primary employer or require that
the primary recognize and bargain with it. In resolving these
questions, I find sufficient evidence which shows that the Re-
spondents often aimed their activities directly at the Charging
Parties and other neutral persons to coerce them into ceasing to
do business with the primaries or require that USSI and Red
Coats grant recognition to Local 525.
1. The October 19 visit was not unlawful
As detailed in the fact statement above, six of Respondent’s
emissaries visited Washington Square’s offices with a letter for
Building Manager Reed. Ignoring the receptionist’s request to
wait in the reception area, they trailed her into another em-
ployee’s office. Although six people are not needed to bear the
weight of one letter, and although they went where they were
not invited, the delegation was neither disorderly nor impolite.
Their visit was brief and they departed as soon as they left the
letter for Reed.
None of the delegation members asked anything of the two
women in the Washington Square office other than to transmit
the unopened letter to their supervisor. Thus, it cannot be said
that they urged the two women to withhold their services either
by oral or written communication. Further, the letter contained
no threat or promise of penalty in the event the building man-
ager failed to acquiesce to Hessey’s written request that she
help resolve the SEIU’s labor dispute with the janitorial con-
tractors; she was free to ignore the letter if she chose. Under
these circumstances, I find no evidence that Section 8(b)(4)(i)
or (ii) was violated.61
2. Respondents were not engaged in picketing prior to
October 30
Paragraph 13 of the amended consolidated complaint alleges
that Respondents engaged in unlawful picketing from October
25 until on or about November 14 at the Washington Square
building. The General Counsel submits that the Respondent’s
activities from October 25 to 29 were presumptively unlawful
because the pickets failed to carry placards identifying USSI as
the primary employer with whom it had a labor dispute, as the
fourth Moore Dry Dock standard requires. The General Counsel
and the Charging Parties further assert that because Respon-
dents’ signs were deficient prior to October 30, thereafter, they
were required to identify the primaries on every sign, a duty
they failed to observe and thus, continued to violate the fourth
Moore Dry Dock guideline.
SEIU Organizer Brown admitted that none of the signs car-
ried prior to October 30 identified USSI.62 However, he
61 Even if I were to find the presence of six people in the office coer-
cive, neither of the two Lerner employees had the authority to terminate
the Charging Party’s business relationship with USSI.
62 Remick believed some signs read USSI but he had difficulty sepa-
rating out one day’s picketing from another. Therefore, I find Brown’s
recollection more reliable.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 677
claimed that October 25, 26, and 29 early evening assemblies in
the vicinity of the Washington Square building were after-work
gatherings or meetings, not picketing, as he understood that
term.
The evidence is scant as to exactly what occurred on these
dates. Brown indicated that the group discussed issues and
shouted slogans. WSLP Security Police Chief Remick stated
that some 20 to 25 individuals generally were involved in what
he termed picketing. Yet, he also said they were grouped at the
intersection of Connecticut Avenue and L Streets. He did not
say that the patrolling, parading, or marching took place. In
fact, he did not explain precisely what he meant when using the
word “picketing.” A handbill distributed earlier that day merely
advertised the 5 p.m. meeting as prestrike civil disobedience
training, but no specific information was presented regarding
the substance of other gatherings on October 26 and 29.
The threshold question is whether the prestrike, late-
afternoon events, constituted picketing as the General Counsel
contends, or meeting/rallies as Respondents allege. If they are
the former, and the pickets failed to carry signs identifying
USSI, then, under Moore Dry Dock, the activity presumptively
ran afoul of Section 8(b)(4)(B)(i) and (ii).
No bright line exists which conveniently and invariably dis-
tinguishes picketing at a common site from other forms of
group activity such as rallies or demonstrations. As the Su-
preme Court lamented in Thornhill v. State of Alabama, 310
U.S. 88 (1940), “the vague contours of the term ‘picket’ are
nowhere delineated” in the statute.” However, some guidance
may be found in an early case, Service Employees Local 399
(William Burns Detective Agency), 136 NLRB 431 (1962). In
that case, the Board found that although union members were
not carrying signs or wearing identifying union insignia, and
did not speak to passersby, they, nevertheless, were engaged in
picketing to protest the employment of nonunion security
guards when groups of 20 to 70 persons patrolled in an ellipti-
cal path at the only entrance to an arena in which a trade show
was being staged. In reaching this conclusion, the Board relied
on the fact that the patrolling was in tight formation, which
gave the appearance of conventional picketing and impeded
access to trade show patrons. Further, the Board found the
number of pickets who engaged in the patrolling much greater
than required for handbilling or publicity purposes, thereby
posing an additional restraint on those who might wish to enter.
Id. at 436–437. Similarly, in Omaha Building Trades Council
(Melvin Simon & Associates), 284 NLRB 328, 335 (1987),63
the Board adopted the judge’s conclusion that patrolling con-
verted a rally into routine picketing at a common situs. More
recently, in Laborers Local 332 (C.D.G., Inc.), supra, 305
NLRB 298, the Board was not persuaded that a parade permit
legitimized a union’s conduct where 300 to 400 union members
completely surrounded a common situs building, blocked all
entrances for about one-half hour and then held a rally at which
members held signs calling for better employment conditions
and distributed handbills. On these facts, the Board found that
“the conduct amounted to restraint and coercion” against the
neutral building owner and manager to pressure them into per-
suading a subcontractor to employ Local 332 members. Id.
However, patrolling is not an irrevocable element of picket-
ing as shown by the Board’s ruling in Mine Workers (New
Beckley Mining), 304 NLRB 71 (1991). In that case, the pri-

63 Enfd. 856 F.2d 47 (8th Cir. 1988).
mary employer, a coal mining company, hired replacement
workers during the course of a strike and lodged then in a
nearby motel. One day at 4 a.m., between 50 and 140 people,
including agents of the union, gathered in the motel’s parking
lot for a noisy rally during which a union spokesperson, told the
motel manager they were offended that replacements had taken
their jobs and that he should refuse to house them. Declaring
that the “mass activity” constituted picketing in violation of
Section 8(b)(4)(ii), despite the absence of picket signs and pa-
trolling, the Board reasoned that

[T]he activity in question was related to and in furtherance of
the labor dispute. . . . the crowd’s large size and its partici-
pants milling about in the inn’s parking lot while shouting,
“How you doing scabs” and “why don’t you go home,” had
all the attributes of mass picketing, attributes that . . . were ac-
centuated by the timing of the crowd’s arrival at the inn in the
predawn.

Id. at 72. In addition, the Board noted that the demonstrators
object was not, as they claimed, simply to talk to the strike
replacements. Rather, “the pickets sought their removal from
the establishment” demanding that the motel manager oust
them. Id. at 72. The Board concluded that the crowd’s conduct
was nothing short of picketing in violation of Section 8(b)(4)
since their object was “to exert improper influence on a neutral
party”. Id. at 72.
The conduct of the JFJ supporters at the early evening gath-
erings prior to October 30 bears little resemblance to that of the
picketers described in any of the cases cited above. Aside from
Remick’s laymanesque use of the word “picketing,” there is no
evidence that the 20 to 25 participants in these gatherings were
patrolling, marching, or parading. Further, there were far fewer
persons present than were involved in any of the cited cases.
No one testified that the assembled individuals were confronta-
tional, that handbills were distributed, or that blocking occurred
which impeded pedestrians. No evidence was presented that
any demonstrator entreated other individuals to withhold their
services. In short, while the Respondents may have staged the
rallies in part to give the Charging Parties a hint of things to
come, they did not engage in conventional picketing on these
few occasions prior to October 30. See Typographical Union
No. 16 (Alden Press), 151 NLRB 1666, 1669 (1965) (The
Board found no picketing in violation of Sec. 8(b)(4)(i) and
(ii)(B) although individuals carried placards and patrolled while
handbilling where general parading at “shopping centers and
public buildings was not designed to dissuade customers or
others from patronizing the establishments . . . nor was it in-
tended to halt deliveries or to cause employees to refuse to
perform services, and it did not in fact produce such results.”)
While I do not find that the Respondents’ 5 p.m. gatherings
or rallies qualify as picketing, the Unions’ conduct later in the
evening on October 25 tells a different tale. Approximately 70
JFJ supporters converged on the Washington Square site at 8
p.m. and walked in a circle for 1-1/2 hours while carrying
picket signs and noisemakers. Given Brown’s unqualified
statement that the Unions’ placards prior to October 30 did not
identify any primary employer, it follows that at least on one
occasion prior to the advent of the strike, the Respondents
failed to comply with the fourth Moore Dry Dock criterion
thereby presumptively violating Section 8(b)(4)(B)(i) and (ii).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678
3. Brown’s comments were not threatening
The complaint also accuses Brown of making two separate
coercive statements on October 25. Specifically, paragraphs 12
and 14 allege that during the early evening rally, he warned that
two owners of WSLP would be sorry for their treatment of
janitors, and later that night, attempted to provoke a fight with a
security guard.
I find Brown’s comment to the effect that Abramson and
Lerner would regret their shabby treatment of janitors too am-
biguous to warrant an inference that a threat was intended. If,
for example, Brown had indicated that the pickets would en-
gage in picketing to be specifically directed again WSLP or its
individual owners, such a threat against a secondary clearly
would be unlawful. An unadorned comment that the owners
would be sorry is simply too vague to support a finding that
Brown meant the Respondents would engage in unlawful sec-
ondary tactics proscribed by Section 8(b)(4). See Ozark Interi-
ors v. Local, 136 LRRM 2251, 2253–2255 (W.D. Mo. 1990);
Plumbers Local 32 v. NLRB, 912 F.2d 1108, 1110 (9th Cir.
1990).
As for the accusation that Brown attempted to provoke a
fight, it is uncontroverted that on the night of October 25, as the
picketing was ending, Brown backed into Melvin and then
accused him of assault, when all that the guard did was avert a
minor collision. Doubt exists as to what else Brown said to the
guard because of internal inconsistencies between Melvin’s
pretrial affidavit and his trial testimony. On direct examination,
Melvin asserted that Brown (who was an estimated 60 pounds
lighter than the guard) challenged him to a fight, while the chief
of security was standing by. But in his affidavit, given closer in
time to the incident, Melvin simply stated that Brown dared
him to lock him up. Given this inconsistency, and in the ab-
sence of any clarification from Chief Remick, I find it improb-
able that Brown challenged Melvin to a fight and more likely
that he challenged him to lock him up.
Brown may have backed into the security guard accidently,
but calling a simple touching an assault was not inadvertent.
Rather, it was an overstatement so out of proportion to the of-
fense as to suggest an ulterior motive.64 In accusing Melvin of
assaulting him and then daring the guard to lock him up, Brown
appArent,ly was attempting to provoke a confrontation in
which he could play the victim of Lerner’s heavy-handed secu-
rity force. Brown’s conduct was not particularly laudable, but I
do not find that it was designed to encourage or induce Melvin
to withhold his services. Quite the reverse—Brown was at-
tempting to bait the guard so that he would carry out his duties.
Since Brown’s remark was delivered to a fairly low-level em-
ployee and no evidence was presented that it was communi-
cated to officials with authority to disrupt Washington Square’s
business relationship with USSI, it cannot be regarded as an
appeal to management discretion. Thus, I do not find that
Brown’s conduct in either instance discussed above offended
Section (b)(4)(B)(i) and (ii).65
Apart from Respondents’ violation of the duty to identify the
primary employer with whom it had a labor dispute during
night time picketing on October 25, I do not find that the Un-
64 A simple touching may constitute an assault in the law of torts, but
Brown was not a lawyer.
65 It follows that Brown’s remark was not, as alleged in the com-
plaint, a threat of violence which restrained or coerced the security
guard within the meaning of Sec. 8(b)(1)(A).
ions’ conduct prior to October 30 was unlawful. Moreover, I do
not find that Respondents’ failure to comply with the fourth
Moore Dry Dock guideline on one occasion justifies invoking a
presumption that thereafter, every sign carried by Respondents
had to identify the primary employers involved in the labor
dispute. To hold Respondents to a different standard when the
General Counsel stipulated on the record that the picket signs
were not in issue after October 30 flies in the face of the
Board’s repeated admonition that the Moore Dry Dock guide-
lines are not to be applied in a rigid manner.
4. Picketing from November 7 to 14 did not comply with
Moore Dry Dock
The General Counsel and the Charging Party contend that
from November 7 to 14, Respondents also defied the first
Moore Dry Dock criterion by picketing at Washington Square
at times when they had reason to know that USSI employees
were not scheduled to work; therefore, they must have had a
cease-doing-business objective.
To prove this contention, the General Counsel and the
Charging Parties rely on a letter sent by WSLP counsel advis-
ing Respondent that USSI employees were no longer working
at the building during the hours of 6 to 10 p.m. They also point
to WSLP Property Manager Reed’s testimony that she in-
formed tenants and security guards that the janitors’ starting
time would be shifted from 6 to 10 p.m., and then to midnight,
based on USSI’s notice to her.
Respondents contend that the proof adduced by the General
Counsel and the Charging Parties is defective for several rea-
sons. First, Respondents note that both the Charging Parties
letter and Reed’s testimony were admitted as hearsay and not
for the truth of the matter asserted; hence, no competent evi-
dence was introduced to prove that USSI employees were not
working when the picketing took place.
Respondents correctly assert that the letter regarding the
USSI employees’ hours was admitted solely to establish that
such notice was sent to them. Thus, neither the Government nor
the Charging Parties affirmatively proved that the revised
schedules actually were implemented. This issue might have
remained in evidential limbo were it not for the testimony of
one eyewitness—security guard Kenneth Melvin, who, on
cross-examination, recalled that the janitors’ schedule was al-
tered sometime after October, so that their shift started at a
much later hour. Moreover, the letter of November 7, while not
constituting definitive proof that the scheduling change oc-
curred, at least put Respondents on notice that such a change
was planned, thereby shifting to them the duty to determine
whether the night-shift janitors actually were present during the
picketing. Compare Plumbers Local 5 (H.L. Robertson & Asso-
ciates), 171 NLRB 251, 256 (1968), with Electrical Workers
IBEW Local 302 (ICR Electric), 272 NLRB 920, 924 (1984).
The Respondents presented no evidence that at that time they
attempted to confirm whether or not the workers were on site.66
Consequently, the Charging Parties’ notification letter, together
with Reed’s and Melvin’s testimony and Respondent’s failure
to present any contradictory proof, gives rise to an inference
that a scheduling change was implemented close to the date the
66 At the hearing, Respondents introduced a few timecards which
appeared to show that several USSI employees may have been working
at the facility in the latter part of the afternoon after November 7. How-
ever, Respondents failed to show that they had any information about
the presence of employees at the time the picketing actually took place.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 679
Unions received notice. It follows that by continuing to picket
from November 7 to 14, after being informed that no USSI
employees would be working at the site, Respondent’s chose to
ignore the first and second Moore Dry Dock dictates.
Respondents also argue that even if picketing ensued at times
that the janitors were not on the premises, it does not necessar-
ily follow that the first Moore Dry Dock standard was breached.
Rather, Respondents argue that it was sufficient that USSI
maintained an office and equipment at Washington Square,
with access available at all times to its managers and supervi-
sors, in anticipation of the employees’ return.
The cases Respondents cite to support this proposition are
factually distinguishable from the circumstances present here.
Consider, for example, Carpenters Local 345, 183 NLRB 1109
(1970), where the Board held that the union was engaged in
lawful picketing of a primary’s office on a Saturday when none
of its employees was present, since the evidence showed that
the office normally was opened on that day and the union was
not advised to the contrary. Similarly, in each of the other cases
which Respondents cite, the unions were given no notice that
the primaries’ employees would be absent from a common situs
during the period of time the picketing took place. See, e.g.,
Electrical Workers IBEW Local 640 (Timber Building), 176
NLRB 150, 151 (1960), Electrical Workers IBEW Local 861,
145 NLRB 1163, 1165 (1964). In the latter cases, it was in
conjunction with the primary employees’ anticipated return to
work following intermittent or sporadic absences of short dura-
tion, that their employers continued to store equipment at the
common site. Cf. Electrical Workers IBEW Local 595 (Hay-
ward Electric), 261 NLRB 707, 709 (1982) (leaving material at
common jobsite does not establish primary employer’s pres-
ence where union was specifically advised that employees
would not be working until further notice).
In contrast, the Respondents in this case received formal no-
tice that the primary employees would not be present during the
hours that picketing continued. Moreover, the USSI employees
were not intermittently or sporadically absent; rather, their
scheduling change was fixed and regular. Given these distinc-
tions, I find that Respondents reliance on the above-cited
precedents is misplaced.
Finally, Respondents submit that they should be permitted to
picket during the normal, prestrike hours whether or not the
USSI employees were at work, for to comply with the first
Moore Dry Dock principle and picket late at night would de-
prive them of the opportunity to appeal to the public. In making
this argument, the Respondents draw a parallel to Board prece-
dent which holds that a union need not be confined to picketing
at a reserved gate when it is located at so remote a site as to
effectively eliminate the union’s ability to bring its labor dis-
pute to the public’s attention. By analogy, Respondents argue
that the principle which proscribes locating a reserved gate at a
remote or inaccessible site also should apply where an em-
ployer purposely alters its employees’ shift schedules to defeat
the union’s ability to convey its message to the public. Com-
pare H. L. Robertson & Associates, Inc., 171 NLRB 251 (1968)
with Electrical Workers IBEW Local 453 (Southern Sun Elec-
tric), 237 NLRB 829, 830 (1978), enfd. 620 F.2d 170 (8th Cir.
1980). (Board held reserved gates were improperly established,
unjustly impairing effectiveness of Respondent’s lawful picket-
ing to convey message to Southern Sun personnel, suppliers,
visitors, and general public.) See also Electrical Workers IBEW
Local 50 v. NLRB, 756 F.2d 888, 891 (D.C. Cir. 1985) (case
remanded to Board to reconsider whether union was obliged to
confine picketing to a reserved gate effectively hidden from
public view).67 Respondents’ point is well taken and I find no
way to reconcile it with the two lines of cases referred to above.
However, as a judge of first instance, I am bound by Board law
which compels continued adherence to Moore Dry Dock. Re-
spondent’s argument must be taken elsewhere.
It is not difficult to perceive why Respondents continued to
picket at Washington Square during the evening rush hour
without verifying whether the USSI employees were on the
scene. Simply stated, Respondents chose to picket at times
which would maximize their ability to reach not only the pub-
lic, but also Washington Square’s owners and tenants, and by
so doing, persuade them to intervene in the primary dispute.
See Service Employees Local 254 (United Building Mainte-
nance), 173 NLRB 280 (1968); H. E. Collins Contracting Co.,
supra, 172 NLRB 1140. It follows that by picketing at the
Washington Square building between the evening hours of 6 to
10 p.m. after November 7, Respondents failed to comply with
the Moore Dry Dock guideline that such activity should take
place when the primary employer is engaged in its normal
business at the situs and thereby violated Section 8(b)(4)(B)(i)
and (ii).
5. Picketing and blocking at Washington Square
was unlawful
Respondents officially commenced a strike against USSI and
Red Coats, among other janitorial contracting firms, on October
30. Throughout the next several weeks, as alleged in the
amended consolidated complaint, and as described in the fore-
going statement of facts, union agents and JFJ advocates en-
gaged in a range of activities which were designed to enmesh
the Charging Parties and other neutrals in a labor dispute
which, legally speaking, was not their own.
Respondents began the second day of the strike, October 31,
by patrolling at the entrance to the parking garage of the Wash-
ington Square building in a manner which impeded access to a
number of cars. Although some drivers managed to gain entry,
they were the exception rather than the rule. The pickets evi-
dently intended to block the entrance for they timed their pa-
trols to coincide with the approach of each car. Further, when a
car chanced to get by, Brown pounded on the roof of the next
car. His gestures must be regarded as harassment, if not intimi-
dation, of the facility’s patrons. Then, when AFL–CIO Orga-
nizing Director Bensinger left his locked car at the garage en-
trance in a curious, slantwise position, access became totally
restricted. Respondents failed to call Bensinger as a witness and
produced no other evidence which might suggest that his act
was inadvertent. These gaps in the evidence lead me to infer
that Bensinger deliberately blocked access to the garage.
Respondents’ actions on this occasion are not justified sim-
ply because the possibility existed that a few USSI janitors who
worked the daytime shift at Washington Square could enter the
building through the parking garage. In light of unrefuted tes-
timony that the janitors were never known to use the garage, it
strains credulity to believe that location was selected because it

67 But see Electrical Workers IBEW Local 970 (Interox America),
306 NLRB 54 (1992), Board held that under unusual circumstances
involved, union had to confine its picketing to a reserved gate which
admittedly limited its access to the public, where the gate was not es-
tablished in bad faith and the only other available site would enmesh
neutrals.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680
was the situs of Respondents’ labor dispute with USSI. Where
picketing takes place at a common situs, a union is obliged to
picket or conduct other activities in a manner which is least
likely to produce secondary effects. Interox America, supra.
Here, rather than trying to minimize the impact of its picketing
on neutral persons, Respondents actions were designed to have
the opposite effect. Tenants and other neutrals clearly were
Respondents’ targets. Accordingly, I find that the purpose and
intended impact of the conduct described above was to induce
employees such as the garage attendants to withhold their ser-
vice in violation of Section 8(b)(4)(i). See (Iron Workers Pa-
cific Northwest Council Hoffman Construction), supra, 292
NLRB 562 at fn. 2. In addition, the blocking clearly was in-
tended to have a coercive effect on motorists, parking employ-
ees, and indirectly the Charging Party to pressure them into
ceasing to do business with USSI. Thus, Section 8(b)(4)(ii) also
was violated.
6. The trashing incidents were unlawful
A day later, Respondents’ actions became more flagrant. At
high noon on November l, while a sizable number of picketers
were marching outside Washington Square, demonstrators en-
tered the building and hurled trash bags filled with shredded
paper in the Washington Square lobby. The melee got com-
pletely out of hand. As Security Chief Remick attempted to
waylay the demonstrators, one of them punched him in the
face. Another demonstrator struck the property manager with a
sack while still another trash bag fell or was hurled over a rail-
ing and grazed the head of a customer entering a retail shop on
the lower level. While these assaults probably were inadvertent,
this does not excuse Respondents which must be held liable for
the foreseeable consequences of their acts. New Beckley Mining
Corp., supra.
No one was injured during similar picketing and trashing in-
cidents at the Lenkin properties at 1130 and 1133 Connecticut
Avenue. There, as at Washington Square, pickets amassed out-
side the buildings, then entered with and spilled the shredded
paper contents throughout the lobbies.
The Respondents submit that their actions at these locations
were presumptively primary in nature because the General
Counsel failed to prove that Red Coats employees were not on
duty at the times in question. However, Lenkin’s contract with
Red Coats was admitted into evidence and showed that the
janitors’ normal hours of duty were from 5:30 to 11 p.m. week-
days. In addition, the property managers at the Lenkin buildings
confirmed that to their knowledge, these were the Red Coats’
hours. With the production of this uncontroverted evidence, the
burden shifted to the Respondent to prove otherwise. They
attempted to meet this burden by showing that the property
managers lacked personal knowledge of the janitors’ hours.
That showing could lessen the weight attached to their testi-
mony, but falls short of affirmatively proving that Red Coats’
employees actually were present at times other than those
specified in the contract. Consequently, Respondents failed to
prove that they complied with the fourth Moore Dry Dock
commandment during their picketing-cum-trashing forays at
the Lenkin buildings on Connecticut Avenue, supporting the
conclusion that they had a secondary objective.
SEIU Organizer Lerner certainly was referring to the trash-
ing incidents when he commented during a subsequent radio
broadcast interview that “we find again and again . . . that the
tenants are upset by it (the trashing). Many are sympathetic and
. . . say to their building owner, we want this settled.” (Tr.
1017–1019.) There could be no plainer acknowledgement of a
secondary intent than this. In short, Respondents staged these
happenings with the certain knowledge that they would incon-
venience tenants and others entitled to the peaceable use of the
buildings.
7. The assaults were unprovoked
Respondents were careful to schedule the trashing episodes
for the noon hour when they surely knew that a substantial
number of pedestrians and building occupants would be in the
vicinity. They also could have anticipated that security guards
would try to prevent such activity. To suggest, as Respondents
do, that Chief Remick provoked his own assault during the
trashing incident, when he merely was attempting to do his job,
is a classic example of transferred blame. Clearly, the injuries
which befell Remick, Reed, and a tenant’s customer were fore-
seeable consequences of Respondents invasion of Washington
Square.
8. The handcuffing protest was unlawful
A week later, noon-hour picketing accompanied another
publicity gimmick: JFJ demonstrators handcuffed themselves
across the main entrances to the Washington Square building,
making ingress or egress exceedingly difficult. Respondents
dispelled any doubt about their objectives on this occasion
when the crowd of 80-odd picketers chanted, “shut ‘em down.”
G.C. Exhs. 50 and 51. There can be no doubt that Respondents
demonstrated their willingness to pursue secondary objectives,
even at the risk of having some supporters arrested.
No doubt, Respondents planned the trashing and handcuffing
incidents to focus public attention on the JFJ campaign. How-
ever, in staging these dramatic scenes, Respondents clearly had
a more limited audience in mind—the employees, tenants, and
patrons of the targeted buildings. They were the ones to bear
the brunt of Respondents’ interference, intimidation, and coer-
cion. The adverse impact on neutrals of Respondents’ actions at
the three Connecticut Avenue buildings could have been fore-
seen as the likely consequences of a strategy that went beyond
the pale of symbolic protest. As such, the trashing incidents, the
assaults, and the handcuffing demonstration violate both Sec-
tion 8(b)(4)(i) and (ii).
9. Blocking the L Street garage was unlawful
On the day after the trashing, picketing at another Abram-
son-owned building again bore witness to Respondents’ secon-
dary intent. On November 2, a half dozen demonstrators
marched slowly across the entrance to a garage which was part
of a building owned by Tower Construction at 1707 L Street.68
Although some cars were able to enter, others drove away.
USSI employees cleaned the building but were not responsible
for the garage which was operated and maintained by Monu-
ment employees. Therefore, by concentrating their picketing at

68 Respondent contends that there was insufficient evidence to con-
nect the Unions to the activity at the 1707 building since the only wit-
ness to the incident, a Monument supervisor, testified that the picket
signs read “Justice for jobs, we can’t live off of $4.70 an hour.” Re-
spondents seem to seek an evidentiary standard strict enough to convict
a felon. However, burdens of proof in administrative hearings are less
stringent. Here, allowing for the fact that memories fade over time, I
find that the language which the supervisor recalled was close enough
to the text which admittedly appeared on JFJ placards to conclude that
Respondents were responsible for the picketing at 1707 L Street.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 681
the garage entrance, impeding motorists’ access to the parking
facility, and urging an irate patron to complain to management,
the pickets indicated that they were far less concerned with
USSI than they were with neutral garage patrons and Monu-
ment management, who, if sufficiently provoked, might act as
Respondents’ surrogates in bringing pressure to bear on the
Charging Party. Here, too, Respondents’ conduct is proscribed
by Section 8(b)(4)(i) and (ii).
C. The Impact of De Bartolo on Respondents’ Activities
As detailed above, Respondents carried the JFJ campaign to
suburban Maryland, specifically to the homes of Albert and
Ronald Abramson, to White Flint Shopping Mall, Lenkin head-
quarters, and the Indian Springs Athletic Club. Since the pri-
mary employers had no connection to these properties, the Re-
spondents’ actions clearly were directed to the owner, and thus,
were secondary in nature.
Respondents vigorously deny that their conduct on these oc-
casions served purposes condemned by Section 8(b)(4). In-
stead, they maintain that in each instance, JFJ supporters were
engaged in peaceful vigils and handbilling. Hence, they argue
that these activities were protected by the Supreme Court’s
ruling in Florida Coast Building & Construction Trades Coun-
cil v. De Bartolo, 485 U.S. 568 (1988).
In De Bartolo, a union distributed handbills at the entrances
to a shopping mall, urging a consumer boycott of neutral busi-
nesses as long as a nonunion contractor was permitted to con-
struct a building there while paying substandard wages. The
Supreme Court held that Section 8(b)(4) did not proscribe such
peaceful handbilling where there were no other nonspeech ele-
ments such as “violence, picketing or patrolling and only an
attempt to persuade customers not to shop in the mall.” In
reaching this conclusion, the Court distinguished peaceful
handbilling which merely attempts to persuade, from picketing
whose very purpose is to exert influence and produce conse-
quences different from other modes of communication. Id.
Following De Bartolo, the Board has approved union hand-
billing in a variety of situations. See, e.g., Laborers Local 332
(CDG, Inc.), 305 NLRB 298 (1991); Plumbers Local 32 (Ra-
mada Inc.), 302 NLRB 919 (1991); and Service Employees
Local 399 (Delta Air Lines), 293 NLRB 602 (1989). These
cases, together with several advice memoranda issued by the
General Counsel, offer some guidance as to the circumstances
under which handbilling may be conducted without offending
the Statute.
First, the Board has posited that handbilling is not to be re-
garded as coercive simply because picketing either precedes or
follows it, even where no hiatus occurs between the two. Thus,
in CDG some 100 members of a local union engaged in hand-
billing over 3 days at the entrances to an office building, with
the secondary object of pressuring the landlord to cease doing
business with C.D.G., a contractor which had a labor agreement
with another union. On the fourth day, 300 to 400 persons,
many of whom carried signs, participated in the Laborers’
march and rally around the building. When the rally ended, 20
members remained to distribute handbills. The Board held that
only the march and rally constituted unlawful restraint and
coercion under Section 8(b)(4).
Second, the Board’s Division of Advice has concluded that
picketing and other activities such as rallies and parades do not
offend the Act if they are incidental to handbilling, designed to
convey a message, and conducted in a nonconfrontational man-
ner. Carpenters Local 745 (Sheraton Corp.), GCM Advice
Memo (Jan. 23, 1991); Service Employees Local 77 (Empire
Industrial Maintenance), and Service Employees Local 77
(JMB Property Management) (May 27, 1988). This conclusion
rests on the Board’s long held view that it is the element of
confrontation between union members and employees, custom-
ers, or suppliers trying to enter an employer’s premises that
converts lawful into proscribed picketing. See Alden Press, 151
NLRB 1666 (1965). As discussed below, Respondents’ reliance
on De Bartolo and its progeny to legitimize their conduct is
misplaced in all but two of the following incidents.
1. The demonstrations at the Abramson homes were coercive
On the evening of November l, some 50 demonstrators as-
sembled on the street and circular driveway chanting slogans
outside the senior Abramson’s home while a six-person delega-
tion knocked on his door to deliver a letter. The police re-
sponded to Abramson’s call and escorted the group off the
property so that he was able to leave unimpeded. The demon-
strators had other handbills, apparently intended for Abram-
son’s neighbors, which questioned his dealing with a janitorial
firm that violated workers’ rights.
Two weeks later, on the evening of November 14, approxi-
mately the same number of demonstrators paraded and chanted
slogans on the street outside Abramson’s home while holding
candles, with a police escort nearby. A handbill was left at the
house which stated, inter alia, that Abramson could hire clean-
ing contractors who paid better wages.
The foregoing incidents do not warrant protection under De
Bartolo. Unlike the handbilling which took place in that case,
the demonstrations at the Abramson residence involved har-
assment, the threat of confrontation, and coercion. In De Bar-
tolo and subsequent cases, the handbilling and other activities
took place on public property in commercial areas, during day-
light hours, with a relatively small number of people circulating
the leaflets to anonymous passersby. Here, by way of contrast,
a large number of people, far more than necessary to deliver a
letter, descended on a quiet residential neighborhood at night to
target a specific individual. Although only six individuals actu-
ally approached Abramson’s door on the first visit to his home,
the noisy crowd close by made their presence known. That
Abramson refused to open the door to the delegation does not
dispel the potential for confrontation created by their uninvited
visit. It would be naive to believe that the Respondents were
oblivious to the embarrassing, even humiliating, impact of their
demonstration.
The second demonstration at Abramson’s home was not
converted into a lawful assembly because the Respondents
secured the presence of the police and conducted their vigil on
the street with lighted candles. Compare C.D.G., Inc., supra,
where the Board found that obtaining a parade permit did not
conceal the fact that the union actually was engaged in picket-
ing. The threat of confrontation may arise even in the absence
of a personal encounter. On this occasion, the fact that none of
the demonstrators approached Abramson’s door does not neu-
tralize other intimidating aspects of the demonstration. The
appearance at night of a large crowd in a residential neighbor-
hood is, in itself, intimidating. Although no picket signs were
displayed, the crowd was engaged in activity which had the
earmarks of secondary picketing, as demonstrated by their
numbers, their choice of location, their parading, and their
chanting slogans related to their primary labor dispute. These
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682
circumstances bear some similarity to those described in New
Beckley Mining Corp., supra, where the Board found that

[T]he crowd’s large size and its participants milling about in
the inn’s parking lot while shouting, “How you doing scabs”
and “why don’t you go home,” had all the attributes of mass
picketing, attributes that in this case were accentuated by the
timing of the crowd’s arrival at the inn in the predawn.

It is well settled that picketing (or other coercive conduct)
violates Section 8(b)(4) if its object is to exert improper influ-
ence on a neutral party. Id. Respondents did not venture into the
suburbs at night to communicate with the public at large. Their
central purpose was to reach Abramson who, Respondents were
convinced, had the power to insist that USSI recognize and
bargain with them under threat of canceling their contract.
Handbilling and demonstrating at night in front of a private
residence in a quiet suburban neighborhood is qualitatively
different from engaging in those same activities during daylight
business hours at the entrance to a shopping mall as in De Bar-
tolo, or at a downtown commercial building as in C.D.G. Re-
spondents reasonably could foresee that their visit would harass
and embarrass Abramson in front of his neighbors and, thus,
would have a coercive effect.
Moreover, the handbills which may have been intended for
distribution to Abramson’s neighbors on November 1, were
critical of his contracting with a janitorial firm that paid low
wages; the leaflet which came to his attention on November 14
suggested he could hire other contractors who offered a higher
payscale.69 When evaluated in light of Respondents’ entire
campaign strategy and conduct, the handbills offer telling evi-
dence of secondary intent. In the final analysis, it is the method
the Respondents chose to deliver their message to the owner of
Washington Square which deprives them of first amendment
protections. Respondents were seeking to exert undue pressure
on the Charging Party so that it would cease doing business
with USSI, an objective forbidden by Section 8(b)(4)(ii)(B).
However, it cannot be said that Respondents were attempting to
induce or encourage Abramson to withhold his services from
the Charging Party and thus, I decline to find that subsection (i)
was violated.
Respondents’ conduct at Ronald Abramson’s home on No-
vember 16, did not differ materially from the demonstration at
the residence of the senior Abramson. Here, too, 40 to 60 per-
sons congregated at night outside a private home. Only a few
demonstrators approached the door to deliver a handbill sug-
gesting that Abramson was a greedy exploiter. From the per-
spective of Ronald Abramson’s 9-year-old son, the situation
was frightening. The Respondents are in a poor position to deny
any responsibility for the boy’s reaction when it was reasonably
foreseeable that a child might be in the younger Abramson’s
home, and, with a child’s curiosity, come to the door to see
what was going on. As a parent, Abramson had every right to
feel even more coerced by conduct which intimidated his child
than if he had borne the brunt of the encounter himself. For the
reasons set forth above with respect to the demonstrations at the
elder Abramson’s home, I find that the Respondents’ actions at
Ronald Abramson’s home violated Section 8(b)(4)(ii)(B).
Given the presence of the Abramson’s housekeeper, a finding
that subsection (i) was violated also is appropriate here.

69 No evidence was introduced to prove that these handbills actually
were distributed to Abramson’s neighbors or others.
2. De Bartolo does not exempt Aspen Hill or Arent, Fox
intrusions
Respondents expedition to the Aspen Hill Racquet Club and
Fitness Center two nights later was an exercise in rowdy behav-
ior. It will be recalled that after taking part in the noontime
handcuffing event at Washington Square, Brown led 40 to 60
demonstrators by bus and van to the Club, which was owned in
part by the Lenkins. Six members of the group passed out
handbills to patrons, interrupting and interfering with them as
they attempted to exercise. At the same time, Brown, with the
other demonstrators in tow, remained at the reception desk and
facetiously inquired about Club memberships. Brown refused
to leave when asked to do so and threatened legal action if staff
members did not provide their proper names. Outside the Club,
Brown refused to intervene when it appeared a fight might
occur between some of the demonstrators and Club personnel.
By no stretch of the imagination can the demonstrators’ in-
vasion of the athletic facility be viewed as “peaceful handbill-
ing not involving nonspeech elements.” De Bartolo, supra, 128
LRRM at 2004. It is highly unlikely that Respondents’ real
purpose had much to do with distributing handbills, for such a
straightforward task could have been accomplished with far
fewer people and the leaflets could have been left at the recep-
tion desk. A more plausible explanation exists for Respondents’
conduct: the demonstrators chose to travel some distance to
purposely disrupt the operations of the Lenkin-owned Club in
order to coerce Club personnel and patrons and thereby put
pressure on Lenkin. Respondents also are liable for inducing
the Athletic Club’s employees to withhold their service from
their employer.
On the morning of November 15, Respondent’s president,
Sweeney, and several other union officials, met with the Arent,
Fox attorneys who represented the Charging Parties. Two hours
later, picketing began anew outside the Washington Square
building which houses the Arent, Fox firm. During the course
of the picketing, SEIU demonstrators entered the firm’s offices
for what proved to be a far more disruptive and intrusive inci-
dent that the one which took place at Aspen Hill.
A law firm may invite the public to its quarters, but this does
not grant visitors license to occupy the premises for mischief
unrelated to a legitimate business purpose. Here, as many as 20
to 30 SEIU demonstrators left the picket line to swarm noisily
through the halls of the law firm, opening doors to offices and
meeting rooms without regard to requests that they remain in
the reception area and with no respect for notions of privacy or
decorum. The Respondents’ purpose evidently was to send a
message to the Charging Parties’ attorneys who they regarded
as the masterminds of the anti-JFJ campaign and principals in
their labor dispute. Based on all the circumstances in this case,
it is fair to infer that the unspoken message the Respondents
meant to convey was that attorneys who thwarted the Respon-
dents’ goals were not immune from harassment. Such a mes-
sage is not entitled to Constitutional protection. If Respondents’
purpose was to communicate with the Charging Parties’ attor-
neys as claimed, union officials had ample opportunity to do so
that very morning when Sweeney met with counsel. In reality,
the demonstration had little to do with persuasive speech; rather
it was a purposeful attempt to disrupt the lawyers, administra-
tive staff, and clients so as to enmesh the firm in the primary
labor dispute. Thus, this escapade also violated Section
8(b)(4)(i) and (ii)(B).
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 683
3. Handbilling at 2301 M Street and Lenkin headquarters
was not coercive
The facts pertaining to Respondents’ handbilling at an Abram-
son owned building on M Street N.W. and at Lenkin’s corporate
headquarters in Bethesda, Maryland, are quite different from
those relating to the above-described demonstrations, and lead to
different legal conclusions.
On November 2, 40 to 50 demonstrators wearing Justice for
Janitors uniforms marched to a corner near the entrance of the
building at 2301 M Street N.W., a complex partially owned by
Lenkin. Brown arrived ahead of the others and left a stack of
handbills just inside the door of the apartment vestibule. During
the course of the rally, Jay Hessey delivered a brief speech which
the crowd punctuated with noisemakers and cries of “Down With
Eddie Lenkin.” After 20 or 30 minutes the group left. Although
the group walked in single file to their rallying point, no evidence
was offered that once there, they continued to march, picket, or
patrol in any fashion. Nor was there any evidence that they car-
ried picket signs. Moreover, the General Counsel’s sole witness
to this event admitted that the demonstrators did not block access
to the building. They did wear clothing which linked them to the
JFJ campaign. However, this identification was no more notice-
able than the large yellow hands imprinted with the union’s name
discussed in CJA Local 745 (Sheraton Corp.), 18 AMR 28023
(NLRB Advice Memorandum, Jan. 23, 1991) or the red T-shirts
bearing the JFJ logo referred to in Service Employees Local 77
(Empire Industrial Maintenance), 15 AMR 25114 (NLRB Ad-
vice Memorandum, May 27, 1988). In the latter matter, 30 SEIU
demonstrators yelled and rang cow bells as they marched in an
area close to a building managed by the Charging Party. Yet, the
Advice Memo concluded that without proof of confrontation and
in the absence of evidence that the demonstrators induced anyone
to engage in a work stoppage, their activity was not unlawful.
Here, as in that matter, “one of the necessary conditions of pick-
eting, a confrontation in some form between union members and
employees, customers or suppliers who are trying to enter the
employer’s premises” is absent. Alden Press, supra at 1669.70
Indeed, it is unclear that the demonstrators even saw the guard
who testified about their demonstration. Consequently, I find that
Respondents’ conduct on this occasion was protected activity
within the meaning of De Bartolo.
On November 6, a Lenkin employee personally observed
only two individuals distributing handbills during regular work-
ing hours in Lenkin’s Bethesda, Maryland headquarters. The
evidence does not show that the two were noisy or confronta-
tional. Their only misdeed appears to be that they did not leave
the building as promptly as they might have at the request of a
Lenkin employee.
That same employee later saw seven persons leave the build-
ing, but there is no evidence that the other five ventured past
the entrance and roamed the building, for no one reported see-
ing them at any time prior to their departure. There was no
picketing, patrolling, parading, or chanting. Apparently, the
entire episode lasted 10 to 15 minutes. To be sure, the handbill-
ing did not take place in a completely open public space, as in
De Bartolo. At the same time, the commercial office building
was not a private dwelling nor posted against solicitations.
These facts do not justify a finding that Respondents’ engaged

70 I recognize that opinions from the Board’s Division of Advice do
not constitute controlling precedent. However, I find the analysis sound
and, therefore, rely on it as persuasive, if not binding.
in coercive or restraining conduct within the meaning of Sec-
tion 8(b)(4).
D. An Object of Respondents’ Coercive Activity was Proscribed
by Section 8(b)(4)(B)
The General Counsel must prove not only that the Respon-
dents threatened, coerced, or restrained neutral employers, but
also that the purpose of such conduct was to “(B) forc[e] or
requir[e] any person . . . to cease doing business with any other
person.”
It is well settled that the “cease doing business” phrase in
Section (b)(4)(B) is liberally construed and may be applied to
situations other than those in which a secondary employer has
severed all business ties with the primary. Thus, in Burns &
Roe, supra at 304–305, the Supreme Court found that conduct
designed to pressure the neutral to change its work assignment
policies “was unmistakably and flagrantly secondary.” The
statute also prohibits secondary conduct intended to disrupt or
interfere with the business of a neutral person, even where no
direct relationship exists with the primary if the purpose is to
pressure the neutral to intercede in the union’s dispute. Long-
shoremen ILA v. Allied International Inc., 456 U.S. 212 (1982);
Teamsters Local 732 (Servair Maintenance), 229 NLRB 392
(1977).
In the absence of direct evidence as to a union’s objective,
the Moore Dry Dock standards provide a convenient way to
determine whether picketing at a common situs actually is
aimed at the secondary employer. As I found above, the Re-
spondents violated the fourth Moore Dry Dock precept on one
occasion prior to the commencement of the strike—that is, on
the evening of October 25, when a large group of demonstrators
picketed at the Washington Square building carrying signs that
failed to identify USSI as the focus of the labor dispute. Subse-
quently, after November 7, when the Respondents were notified
that the work schedule for the USSI janitors at Washington
Square was altered, they continued to picket at that site through
November 14, thereby failing to comply with the first and sec-
ond Moore Dry Dock requirements that picketing take place at
times when the primary employer is engaged in its normal
business at the common situs. Consequently, a presumption
arose that the picketing on these dates had an unlawful secon-
dary purpose. Having failed to rebut the presumption, it follows
that Respondents’ activity on these occasions violated Section
8(b)(4)(ii)(B).
The General Counsel contends in his brief that there was no
labor dispute which involved janitorial employees at 1130
Connecticut Avenue or 2301 M Street; therefore, when Re-
spondents engaged in activities at those buildings, they flouted
the third Moore Dry Dock criterion which requires that picket-
ing take place reasonably close to the situs of the dispute with
the cleaning contractors.
The General Counsel appears to assume that a labor dispute
is synonymous with a strike. In fact, even where the primary’s
employees do not strike, a labor dispute may exist and a union
may lawfully picket as long as the primary employer is engaged
in its normal business at the picketed site. In the instant case,
Respondents had struck Red Coats, the contractor at 1130 Con-
necticut Avenue. Although janitorial employees assigned to
that building did not participate in the strike, this did not pre-
clude lawful picketing there.
As for picketing at the building on M Street, the General
Counsel did not establish that janitors employed by either of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 684
primary employers were not on duty at the time. Therefore, no
presumption can be drawn that the Respondents violated the
third Moore Dry Dock precept by picketing at 2301 M Street.
In any event, even if Respondent had engaged in conduct con-
demned by Moore Dry Dock at these two locations, it would
have no bearing on whether they violated the third criterion at
Washington Square.
Thus, a Moore Dry Dock presumption of unlawful intent is
well founded solely with respect to Respondents’ picketing on
the evening of October 25 and after November 7 at Washington
Square. However, more direct proof of secondary objectives
proscribed by Section 8(b)(4) comes from Respondents’ own
words. From the outset of the JFJ campaign, Respondents writ-
ten materials repeatedly urged owners and other neutrals to
intercede in SEIU’s labor dispute with cleaning contractors.
Standing alone, such entreaties would not be unlawful. When
read in the context of the entire JFJ campaign, they cannot be
regarded as isolated statements devoid of secondary implica-
tions. Rather, they expose Respondents’ overall strategy which,
from the beginning, was to target building owners and manag-
ers as the true source of power over the janitors’ employment
conditions.71 See Burns & Roe, supra at 304–305; Miller &
Solomon Construction Corp., supra, Electrical Workers IBEW
Local 3 (Hylan Electric), 204 NLRB 193, 195 (9173); Rollins
Communications, supra at 101; Electrical Workers IBEW Local
11 (L.G. Electric), 154 NLRB 766 (1965). Thus, when re-
viewed in conjunction with the frequent occasions when JFJ
supporters engaged in patently secondary picketing, a number
of Respondents’ letters, newsletter articles, and handbills attest
to an unlawful secondary intent.
Consider, for example, an article published in a fall 1988
bulletin by the SEIU’s Building Service Division which stated:

Justice for Janitors campaigns have operated according
to a uniform strategy which includes: mass organizing to
win “voluntary recognition” when possible . . . bargaining
master agreements . . . and pressuring building owners,
developers and financiers as well as contractors. [Empha-
sis added.] [G.C. Exh. 59.]

Further, a number of handbills which Respondents distrib-
uted during the strike urge tenants to “call your building man-
ager to assist in finding a fair resolution to this matter.” (See,
e.g., G.C. Exh. 14, 16.) One of the handbills, titled “Update
Day 9 Tenant News,” implied that the cleaning contractors and
building managers were equally responsible for ameliorating
the janitors’ working conditions. (G.C. Exh. 17.) Handbills
apparently intended for neighbors were distributed during the
demonstrations at the Abramsons’ homes which accused them
of contracting with janitorial firms which payed minimum
wages and of reaping tremendous profits at the expense of the
janitors who cleaned their office buildings. The handbill then
stated that “While Abramson is not the janitors’ employer, he
has the power to hire cleaning companies who will pay decent
wages and obey the law.” (G.C. Exh. 34.) The next line, printed
in bold letters, reads, “Why Does A Lawyer Tolerate Continued
Lawbreaking By a Company He Hires?” The leaflet concludes
with a suggestion that the reader contact Ronald Abramson and
help him “straighten out the family real estate business.” Id. By

71 The SEIU conducted extensive research about the real estate hold-
ings of various building owners, apparently in preparation for its JFJ
campaign.
this, the Respondents certainly were implying that neighbors,
total neutrals, should pressure Abramson to sever his business
relationship with an unjust janitorial contractor. To the same
effect are handbills prepared in connection with the demonstra-
tion at the senior Abramson’s home, and others distributed at
the White Flint Mall and the Aspen Hill athletic facility which
urged patrons to complain about the choice of contractor. The
subtext latent in many of these messages was that the building
owners “cease doing business with any other person.”
Respondents’ unlawful objective also may be inferred from
the manner in which they carried out some of their activities.
When JFJ pickets patrolled at the entrance to the Washington
Square parking garage and when Bensinger parked and locked
his car at the head of the garage ramp, Respondents surely fore-
saw the probable consequences: by impeding access, the garage
manager would lose business and motorists attempting to park
there, some of whom probably were tenants of the building,
would be inconvenienced. The picketing which took place at
the garage in the 1701 M Street building was likely to have the
same impact on tenant-motorists and parking garage attendants
and their supervisors. Similarly, Respondents had to anticipate
the inconvenience and disruption of normal activities their
trashing and handcuffing shenanigans would inflict on tenants
and patrons of Washington Square and the buildings at 1130
and 1133 Connecticut Avenue. Further, the foray to the Aspen
Hill Club and the romp through the Arent, Fox offices were
purposefully designed to interfere, if not to halt, normal activity
of neutrals at both locations. There can be no doubt that Re-
spondents were aware that their antics would irritate and frus-
trate all but the most saintly tenants and patrons, to the detri-
ment of their everyday pursuits. It is fair to infer that the Re-
spondents engaged in these activities with the hope that some
would withhold their services, and/or demand that the Charging
Parties remedy the situation. If “the union’s intent is measured
as much by the necessary and foreseeable consequences of its
conduct as by its stated objective,” then an inference that the
Respondents’ objective was unlawful is certainly warranted
here. New Beckley Mining Corp., supra.
At the same time that Respondents were engaged in actions
which adversely affected tenants and potential clients, they also
were letting the Charging Parties know that relief from their
tactics could be obtained by removing the offending employers
or requiring them to come to terms with the SElU’s demands.
In either case, the Respondents were signalling by word and
deed that the Charging Parties “alone, had the power to resolve
the underlying dispute by . . . substantially disrupting their
business arrangements with the primary employers.” Rollins
Communications, supra at 101. In short, Respondents waged a
campaign of secondary pressure aimed at Washington Square
and Lenkin, as well as other neutrals who were incidentally
involved, with the objective of enmeshing them in their labor
dispute with USSI and Red Coats. Such conduct violates Sec-
tion 8(b)(4)(i) and (ii) of the Act.
VII. RESPONDENTS ALSO VIOLATED SECTION 8(B)(1)(A)
The complaint in Cases 5–CB–6712–1 and 5–CB–6712–2
(G.C. Exh. I–V) alleges that Respondents coerced and re-
strained employees in violation of Section 8(b)(1)(A) by con-
duct which also was alleged to have violated Section 8(b)(4).
Namely, the 8(b)(1)(A) allegations accuse Respondents of re-
straining or coercing employees by maintaining an unlawful
picket line from October 25 to November 14, blocking access
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 685
to the WSLP parking garage on October 31, assaulting supervi-
sors and a tenant’s customer manually and with bags of trash on
November 1, and again blocking Washington Square on No-
vember 8 when demonstrators handcuffed themselves to the
doors of the building.
It is well settled that violence or threats of violence aimed at
an employee because of his or her protected activity constitutes
coercion and restraint within the meaning of Section
8(b)(1)(A). A union may be held liable for acts of violence by
picketers where union officials participate in the misconduct or
know of it and fail to disavow it or prevent its recurrence. See
Machinists Local 758 (Menasco Inc.), 267 NLRB 1147 (1983).
Moreover, nonviolent conduct, including efforts to prevent
employees from reporting to work by impeding access to an
employer’s facility also is proscribed by this section. See North
American Meat Packers (Hormel & Co.), 287 NLRB 720, 721
(1987). Even where blocking is not altogether successful, the
act of amassing a hostile crowd at a building’s entrance in a
confrontational manner is, in itself, coercive. Id. Further, al-
though Section 8(b)(1)(A) literally addresses the statutory
rights of employees vis-a-vis unions, the provision also may
apply to nonemployees, such as supervisors, if employees are
present or the incident is likely to come to their attention and
would reasonably tend to restrain them in the exercise of their
Section 7 rights. Id. at fn. 5.
I found above that Respondents’ gatherings prior to the onset
of their strike on October 30 did not constitute picketing. Even
assuming that the contrary was true; that is, that Respondents
were engaged in unlawful picketing by failing to observe the
Moore Dry Dock criteria, for the entire period alleged in the
complaint, I find nothing about such activity which could re-
strain or coerce employees in the exercise of their Section 7
rights.
I also found as a fact that on October 31, SEIU pickets pa-
raded in pairs across the entrance to the Washington Square
garage, purposely keeping many, but not all, cars at bay. Then,
Bensinger parked and locked his vehicle slantwise across the
entrance, totally preventing access to the facility to all but one
intrepid Secret Service employee. These events were witnessed
by the garage attendants, and potential customers of the garage,
some of whom surely worked for employers located in Wash-
ington Square. On November 8, SEIU demonstrators hand-
cuffed themselves to the front doors of Washington Square,
again impeding ingress and egress during the busy noon hour.
Respondents also scattered trashbags throughout the lobby.
They may have engaged in this initiative as a symbolic protest,
but that does not mitigate the effects of their deed. Whether
they flung the sacks about purposely or inadvertently, Respon-
dents cannot evade responsibility for the foreseeable conse-
quences of their actions, including the harm done to a customer
who was struck by a falling sack as she entered a salon on the
lower level. Having acknowledged responsibility for the dem-
onstration, the Respondents may not deny liability for its con-
sequences, particularly when there is no credible evidence that
anyone but SEIU supporters flung the sacks about, causing
them to come apart. Lastly, Respondents’ agents were directly
at fault for the assaults on Security Chief Remick and Property
Manager Reed. Even if no employee witnessed these encoun-
ters, news of these uncommon occurrences was bound to reach
security guards and others employees who worked in the build-
ing.72 While Respondents probably did not want the demonstra-
tors to strike anyone, neither did any SEIU official publicly
condemn such misconduct. In fact, once Brown and others had
completed their protest in the Washington Square lobby, they
moved on to other nearby buildings to carry out similar maneu-
vers, suggesting that Respondents had little interest in prevent-
ing a recurrence of the protesters’ belligerent conduct. In light
of the precedents cited above, little discussion is needed to
conclude that Respondents’ actions on the occasions described
above restrained and coerced employees in contravention of
Section 8(b)(1)(A).
THE REMEDY
Having found no merit to the allegations in Case 5–CB–6558
involving General Maintenance Service Company, I shall rec-
ommend that the complaint be dismissed. Having further found,
however, that the Respondents violated Section 8(b)(1)(A),
(4)(i), and (ii)(B) in the cases involving WSLP and the Lenkin
Company, I shall recommend that they cease and desist from
such practices and take affirmative actions designed to effectu-
ate the Act.
Arguing that Respondents’ unlawful acts were extensive and
egregious, the General Counsel and the Charging Parties seek a
broad cease-and-desist order which would prohibit Respon-
dents from violating the Act in any manner as to all persons in
the Washington, D.C. metropolitan area. Respondents assert
that because they have not previously been found to have vio-
lated the Act, if any order issues, it should be a narrow one
tailored specifically to only those unfair labor practices which
are found to have merit.
In Hickmott Foods, 242 NLRB 1357 (1979), the Board an-
nounced that a broad order is warranted on two grounds: “when
a respondent is shown to have a proclivity to violate the Act or
has engaged in such egregious or widespread misconduct as to
demonstrate a general disregard for fundamental statutory
rights.” Typically, a proclivity to violate the Act is found where
the respondent has a history of prior violations based on similar
unlawful conduct. See, e.g., Iron Workers Local 433 (United
Steel), 293 NLRB 621, 623 (1989).
However, recidivism is not the sole ingredient. which justi-
fies a broad order. A proclivity to violate the Act may also be
based on a respondent’s conduct in the particular case before
the Board if it “exhibits a blatant disregard of the Act and a
clear willingness, if not eagerness to violate it. . . . (as well as) a
high probability of recidivism directed against other . . . con-
tractors” Service Employees Local 77 (Thrust IV), 264 NLRB
628–629 (1982), enfd. 123 LRRM 3212 (9th Cir. 1986) (union
intentionally ignored reserve gate and picketed at times when it
knew no primary employees would be present because of its
admitted interest in organizing entire jobsite). A broad order
also may be appropriate where respondent’s highest officials
are involved in the unlawful conduct. Impact Industries, 285
NLRB 5 (1987), enf. denied on other grounds 847 F.2d 379
(7th Cir. 1988).
In the final analysis, determining whether a broad order is
warranted, and how broad it should be, “turns on the nature and
extent of violations committed by the respondent.” Iron Work-

72 Apart from the beauty salon manager who observed a trashbag
striking her client, there is no evidence, either direct or implied, that
this incident became known to other employees. Accordingly, I am
unable to find that this aspect of the allegation contained in par. 12 of
the complaint constitutes an 8(b)(1)(A) unfair labor practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 686
ers Local 378 (N. E. Carlson Construction), 302 NLRB 200
(1991). Thus, in deciding whether to recommend a broad or
narrow remedial order here, careful consideration must be
given to the nature and number of Respondents’ violations and
an assessment made as to whether they are likely to engage in
similar misconduct in the future against these or other employ-
ers in the metropolitan area.
The evidence reviewed above establishes that Respondents’
unlawful activities were widespread and in certain instances,
flagrant. They picketed for approximately a week at hours
when they had reason to know that the primary employees were
not at work; they trashed the lobbies of three buildings in 1 day,
assaulting a few people in the process. At other times, Respon-
dents prevented access to Washington Square when demonstra-
tors handcuffed themselves to the portals, and blocked ingress
and egress to parking facilities at both at Washington Square
and 1707 L Street, inconveniencing potential patrons and halt-
ing business at both locations. Respondents argument that their
actions were justified because janitors had access to these
building through the parking garages was specious; they knew
or should have known that the janitors did not enter or leave the
building that way. Thus, through various strategies, the Re-
spondents attempted to adversely affect as many neutrals as
possible as a means of bringing pressure to bear on the Charg-
ing Parties.
A number of officials in Respondents hierarchy were respon-
sible for designing and executing many of the JFJ campaign
activities. Take, for example, the trashing incidents during
which three persons were assaulted. Under International Organ-
izer Stephen Brown’s direction, demonstrators invaded subur-
ban athletic club owned in part by Lenkin, while Research Di-
rector David Chu led a disruptive parade of demonstrators
through the law offices of the Charging Parties’ counsel. Fur-
ther demonstrations were carried to the doorsteps of Albert and
Ronald Abramson’s Maryland residences.
This record suggests that unless restrained by a remedial or-
der which reaches beyond the immediate employers named in
the complaint and encompasses the greater Washington, D.C.
metropolitan area, Respondents are willing to adopt tactics
which affect any number of neutrals and carry their campaign
to any location, private or commercial, in which the Charging
Parties have a financial or management interest. Cf. Metropoli-
tan District Council of Philadelphia (E. Reeves, Inc.), 281
NLRB 493, 499 (1986) (order extends to any present and future
jobsites where employees of Charging Parties are working).
At the same time, in fashioning an appropriate order, it is
important to bear in mind that Respondents began their organiz-
ing drive in the fall of 1987; yet, no other remedial orders have
issued against them throughout the 3-year period prior to this
case. Moreover, the 8(b)(i)(A) and 8(b)(4)(i) and (ii)(B) viola-
tions litigated here occurred within a 3-week period in the fall
of 1990. In other words, Respondents’ unfair labor practices
took place during a small fraction of the time that they actively
conducted the JFJ campaign. Additionally, findings that Re-
spondents violated several different sections of the Act rest on
the same conduct.
It also is relevant that Respondents planned and executed a
number of demonstrations in reliance on their construction of
De Bartolo and its progeny. Although a few cases have shed
light on De Bartolo, the Board has not yet had the opportunity
to delineate all the contours of that decision. Similarly, Re-
spondents vigorously and in good faith argued that the Charg-
ing Parties had forfeited their neutral status. If Respondents’
argument had prevailed, they would have had a complete de-
fense to virtually all the 8(b)(4) allegations. Since Respondents’
theory of shared culpability among the Charging Parties and the
primary employers had not been tested at the time they engaged
in the conduct at issue here, they did not have the benefit of a
definitive Board ruling to guide their actions. Without such
certainty, and in the absence of a recidivist history, it would be
unjust to conclude that Respondents exhibited “a blatant disre-
gard of the Act and a clear willingness, if not eagerness to vio-
late it.” (Thrust IV, supra at 528.) In light of these considera-
tions, the remedy in this case will be limited to “like or related
conduct.”
The Charging Parties, but not the General Counsel, urge that
Respondents should be compelled to read the order at manda-
tory meetings of their staffs, publish it in local newspapers, and
announce it on the radio. I have found that Respondents’ upper
echelon officers were personally involved in engineering and
executing the JFJ campaign in Washington and its environs.
Those who participated in the picketing and demonstrations
simply followed their leaders’ cue.73 Given the SEIU officials’
involvement in the campaign, it is inevitable that they and their
staffs will quickly learn of the instant decision. Therefore, it is
not necessary that the Decision and Order be read aloud at
meetings, as the Charging Parties propose. Moreover, newspa-
per and radio accounts would not guarantee that the contents of
the Order reached the right ears. Rather, such a requirement
only would serve to penalize the Respondents. Board orders are
not issued for vindictive purposes. Rather, as the Board ob-
served in Long Construction Co., 145 NLRB 554, 556 (1963),
“The cease and desist order, in conjunction with the utilization
of the contempt procedures provided in the Act, is well de-
signed to prevent the recurrence of the unfair labor practices
and to vindicate public rights.”
CONCLUSIONS OF LAW
1. Respondents are labor organizations within the meaning of
Section 2(5) of the Act.
2. General Maintenance Service Co., Inc., Washington
Square Limited Partnership, and the Lenkin Company Man-
agement, Inc. are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
3. Respondents violated Section 8(b)(4)(i) and (ii) by:
(a) Picketing at the Washington Square Building on the night
of October 25, 1990, while carrying placards that failed to iden-
tify USSI as the employer with whom they had a labor dispute.
(b) Picketing at Washington Square from November 7 to 14,
1990, at times when they knew or should have known that the
primary employees were not working.
(c) Patrolling and parking a locked car in the entrance of the
Washington Square garage in a manner which blocked access
to that facility.
(d) Demonstrating in the lobbies of Washington Square and
at 1130 and 1133 Connecticut Avenue N.W. with trashbags full
of shredded paper which opened and littered the lobbies.
(e) Injuring three persons during the course of the activity re-
ferred to in subparagraph d, above.

73 This is not to imply that the assaults which occurred during the
trashing episode at Washington Square were orchestrated in advance.
To the contrary, it is far more likely that they were unintended and
unfortunate consequences of reckless, but unplanned behavior.
SERVICE EMPLOYEES LOCAL 525 (GENERAL MAINTENANCE CO.) 687
(f) Impeding access to a parking facility at 1707 L Street
N.W. on November 2.
(g) Picketing and/or demonstrating at Ronald Abramson’s
home on November 16.
(h) Demonstrating at the Aspen Hill Athletic Club and the
Arent, Fox law firm.
4. Respondents violated Section 8(b)(4)(ii) by picketing and
demonstrating at Albert Abramson’s home on November 1 and
14.
5. Respondents restrained and threatened employees in viola-
tion of Section 8(b)(1)(A) of the Act by
(a) Blocking access to the Washington Square garage
through patrolling and leaving a locked car at the entrance of
that facility.
(b) Assaulting supervisors and a tenant’s customer during an
unlawful demonstration in the Washington Square lobby.
(c) Impeding access to Washington Square when SEIU pick-
ets handcuffed themselves to the building’s doors.
6. The unfair labor practices described in paragraphs 3 to 5,
above, affect commerce within the meaning of Section 2(6) and
(7) of the Act.
7. The complaint in Cases 5–CB–6558 and 5–CB–6584
should be dismissed.
8. Except as set forth above, the Respondents have not vio-
lated the Act in any other respect alleged in the amended con-
solidated complaints.
[Recommended Order omitted from publication.]