Service Employees Local 32B-32J (Nevins Realty)

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 392 (N.L.R.B. 1993)

392
313 NLRB No. 48
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The judge erroneously stated the Respondent’s position on the ju-
risdiction issue. We note that the Respondent’s posthearing brief to
the judge concedes that the Board’s assertion of jurisdiction over the
parties is proper in this matter.
2 On those occasions when Nevins hired a helper, the relationship
covered the helper as well.
3 Golden had a contract with the Laborers.
4 See, e.g., Carpenters Local 419 v. NLRB, 467 F.2d 392 (D.C.
Cir. 1972), enfg. 190 NLRB 143 (1971). In that case, while attempt-
ing to organize the employees of certain installers of home floor-
covering material, including Sears carpeting, the union picketed
Sears. The Board found that Sears was a neutral party to the union’s
dispute with the installers. In upholding the Board’s finding, the
court emphasized that no Sears employee had ever performed any
floorcovering installations.
In finding a violation, Member Raudabaugh also relies on the fact
that the grievance had an unlawful secondary objective. See his posi-
tion set forth in Plasterers Local 337 (Marina Concrete), 312 NLRB
1103 fn. 8 (1993).
Local 32B-32J, Service Employees International
Union, AFL–CIO and Nevins Realty Corp.
Case 29–CC–1030
November 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 17, 1992, Administrative Law Judge
Edwin H. Bennett issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs, and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order.
The judge found that the Respondent violated Sec-
tion 8(b)(4)(ii)(B) by exerting coercive pressure against
a neutral employer in furtherance of its ongoing labor
dispute with a cleaning subcontractor whose employees
are represented by another union. Unlike our dissenting
colleague, we fully agree with the judge’s analysis and
find that the Respondent’s conduct was directed at a
neutral party and was, in fact, coercive.
On May 15, 1991, Nevins Realty Corp., a manager
of commercial office buildings in Brooklyn, New
York, subcontracted the cleaning services at one of its
buildings to Golden Mark Maintenance Service Indus-
tries, Inc., an independent cleaning contractor. At the
time, the Respondent had a bargaining relationship
with Nevins, covering a superintendent.2 The Respond-
ent also had a separate bargaining relationship with
Guardian, the immediate predecessor to Golden. This
relationship covered four employees. Golden refused to
hire the four employees of Guardian, and did not
maintain the wages and benefits of the Guardian-union
contract.3 Thus, there was a primary labor dispute be-
tween Golden and the Respondent. On May 17, the
Respondent pressured Nevins to have Golden hire the
four Guardian employees and maintain their existing
wages and benefits. When this tactic failed, the Re-
spondent made a similar hiring request on Golden a
few days later. Then, on June 5, the Respondent filed
an arbitration demand against Nevins over Golden’s re-
fusal to hire the Guardian employees. The Respondent
claimed that Nevins had breached the subcontracting
clause of the parties’ contract.
For the reasons given by the judge, we find that re-
sorting to arbitration against Nevins over the selection
of Golden was not aimed at resolving a dispute involv-
ing Nevins’ employees but rather was done to satisfy
the Respondent’s interests elsewhere. In particular, an
object of the Respondent’s pressure was to disrupt
Nevins’ business dealings with Golden because the lat-
ter does not employ members of, or have a contract
with, the Respondent. Contrary to the dissent’s view,
this secondary object is apparent on examination of the
basis for the Respondent’s grievance. In arguing a
work preservation claim, the Respondent relied on the
subcontracting clause of the parties’ contract. How-
ever, the language of that clause makes it clear that it
pertains only to the subcontracting of work ‘‘per-
formed by employees covered by this Agreement.’’
Here, there is no question that the cleaning work con-
tracted out to Golden had always been performed by
employees of various independent cleaning contractor
companies and that the superintendent and the helper
of Nevins had never been responsible for any duties
similar to those performed by the employees of the
cleaning contractor. Thus, the Respondent’s contractual
claim is not reasonably based on the language of the
contract, and its work preservation defense to the in-
stant 8(b)(4)(B) allegation is similarly without a
colorable basis.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local 32B-32J, Service
Employees International Union, AFL–CIO, Brooklyn,
393SERVICE EMPLOYEES LOCAL 32B-32J (NEVINS REALTY)
1 Although there is no allegation regarding New York City’s com-
mercial activities, I take official notice of the fact that the operations
of the city generally and at the location have an impact on com-
merce and that it is appropriate to assert jurisdiction over both gov-
ernmental units since, ‘‘it is well settled that the Board’s discre-
tionary jurisdictional standards may be met in an 8(b)(4)(B) proceed-
Continued
New York, its officers, agents, and representatives,
shall take the action set forth in the Order.
MEMBER DEVANEY, dissenting.
Contrary to my colleagues, I would dismiss the
8(b)(4)(ii)(B) allegation because I find no unlawful co-
ercion directed at a neutral employer.
It is undisputed that the Respondent Union’s de-
mand for arbitration was unaccompanied by any un-
lawful secondary activity, including strikes or threats.
Rather, in accord with our national labor policy favor-
ing grievance/arbitration resolutions, the Union filed a
grievance directed only at Nevins, the entity that was
required by the building tenants’ leases to provide the
actual cleaning services in question. The grievance was
premised on the Union’s arguable theory that the par-
ties’ subcontracting clause was intended to apply to
work covered by the contract’s unit description and
that the clause was not restricted to the actual job clas-
sifications in existence or employees employed at Nev-
ins at any particular time. The fact that the Union’s in-
terpretation of the contract clause was ultimately re-
jected by the judge does not make it any less defen-
sible. See my dissent in Carpenters Local 745 (SC Pa-
cific), 312 NLRB 903 (1993).
Aqqie Kapelman, Esq., for the General Counsel.
Ira Sturm, Esq. (Manning, Raab, Dealy & Sturm), for the
Respondent.
Stuart Bochner, Esq. (Horowitz & Pollack, P.C.)., for the
Charging Party.
DECISION
STATEMENT OF THE CASE
EDWIN H. BENNETT, Administrative Law Judge. On June
11, 1992, a hearing was conducted in this case based on a
complaint which issued on September 30, 1991, and a charge
filed by Nevins Realty Corp. (Nevins) on June 24, 1991, and
served on June 27, 1991, on Local 32B-32J, Service Employ-
ees International Union, AFL–CIO (the Union). The principal
issue to be decided is whether or not the Union violated Sec-
tion 8(b)(4)(ii)(B) of the Act by seeking, through arbitration,
to require Nevins to cease doing business with Golden Mark
Maintenance Ltd. (Golden), a cleaning contractor it had re-
tained to perform services at one of its buildings. Subsidiary
to this ultimate question are the following issues: (1) Was the
Union’s sole dispute a primary one with Nevins over the
latter’s alleged violation of a ‘‘work preservation’’ clause in
the collective-bargaining agreement, which in turn raises
such issues as the identity of the principal work unit, the na-
ture of the work performed, or fairly claimed, by the Union
and whether or not the so-called right of control test applies?
(2) Is resort to arbitration in this case coercive conduct? and
(3) Is this complaint time barred by Section 10(b) or the dis-
pute otherwise barred from resolution by the Board by virtue
of an earlier prior settlement to which the Board must defer?
Finally, are the operations of New York City and New York
State, the tenants of Nevins in the building affected by the
labor dispute, subject to the Board’s jurisdiction?
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel and Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Nevins, a New York corporation located in Brooklyn, New
York, owns, operates, and manages commercial rental prop-
erties including the six-story building involved herein located
at 350 Livingston Street, Brooklyn, New York (also bearing
the address of 333 Schermerhorn Street) (the Building). An-
nually, Nevins derives gross revenue in excess of $100,000,
of which in excess of $25,000 is derived from the New York
State Department of Motor Vehicles (DMV), an agency of
the State of New York. The State, through its office of gen-
eral services, leases most of the Building for occupancy by
DMV and, to a lesser extent, by the division of parole. The
only other lessee, of 1-1/2 floors, is the New York City Gen-
eral Services Administration for occupancy by its human re-
sources administration. Thus, the only tenants in the Building
are three agencies of the State and city of New York.
Golden, a New York corporation located in Staten Island,
New York, is in the business of providing cleaning and
maintenance service to commercial customers located in New
York State. It annually performs such services valued in ex-
cess of $50,000 for enterprises which are themselves directly
engaged in interstate commerce meeting a Board standard for
the assertion of jurisdiction exclusive of indirect outflow or
indirect inflow.
It is admitted and I find that Nevins and Golden, and each
of them, is an employer engaged in commerce and in an in-
dustry affecting commerce within the meaning of Section
2(1), (2), (6), and (7) and Section 8(b)(4) of the Act. Re-
spondent, while admitting that New York State engages in
sufficient business and commercial activities that would sat-
isfy one of the Board’s standards for asserting jurisdiction,
exclusive of an indirect standard, nevertheless maintains that
in a secondary boycott case the Board cannot assert jurisdic-
tion where it rests on the business of a government agency.
Respondent’s position is wrong as a matter of law. The
Board long has held that in 8(b)(4)(B) cases the jurisdiction
of the Act extends to political subdivisions, as well as to
other persons not qualifying as 2(2) employers, whether
those persons are defined as ‘‘primary’’ or ‘‘secondary,’’ be-
cause it was the intent ‘‘of Congress that the terms of Sec-
tion 8(b)(4)(B) be given full effect in protecting municipal
and state governments from secondary pressures.’’ City of
Juneau, 176 NLRB 889 (1969). Accordingly, as the alleged
secondary activities of the Union would impact on the activi-
ties of New York State and New York City, I find those
governmental units are subject to the Board’s jurisdiction in
this case, and they are persons within the meaning of Section
8(b)(4)(B) of the Act.1
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing by the operations of either the primary employer or the second-
ary employer, or the combined operations of the primary and sec-
ondary employers at the location affected by the allegedly unlawful
conduct.’’ Teamsters Local 400 (Bondis Mother Hubbard Market),
118 NLRB 130 (1957).
II. THE UNFAIR LABOR PRACTICES
As noted, occupancy of the Building by the State and city
of New York began in 1965, since which time a series of
leases have been entered into between Nevins and the var-
ious governmental agencies. A standard feature of those
leases required Nevins to provide the tenants with cleaning
and porter service including such duties as cleaning toilets,
moping, sweeping and waxing floors, and washing the win-
dows. The frequency with which these several services are
to be provided are specified in the leases prepared by the
tenants. To accomplish these cleaning functions Nevins has,
since the opening of the Building, consistently and without
variation utilized the services of independent cleaning con-
tractor companies. The managing official of Nevins respon-
sible for the operation and maintenance of the Building from
its construction to the present is Raymond McKaba, Nevins’
secretary-treasurer from 1961 to 1973, and its president
thereafter. The evidence he gave was entirely credible and
essentially undisputed and the critical facts of this case are
based largely on his testimony and documentary evidence.
McKaba described in detail the unbroken practice of en-
gaging cleaning contractors to provide the various cleaning
services required by the leases between Nevins and its ten-
ants. Generally, these contractors used cleaning crews of
about four individuals who performed their services in the
evening, a fairly common practice in commercial office
buildings. There is nothing in the record to suggest that any
of the various contractors engaged over the years were relat-
ed in any way, by ownership or control, to Nevins, or that
Nevins in any way exercised day-to-day control over the
work performance of the contractors’ employees or influ-
enced the labor relations policies or practices of these com-
pletely independent entrepreneurs.
What also is beyond doubt is that the only persons ever
employed by Nevins at the Building have been one super-
intendent, whose identity has changed from time-to-time and
a superintendent’s helper for the period between 1975 and
1989. The primary responsibilities and duties of the super-
intendent and his helper are to repair and maintain the phys-
ical premises, for example, to repair windows, faucets, and
pipes, change air conditioning filters, and generally maintain
building equipment. In situations where the repair or mainte-
nance was beyond the superintendent’s expertise it was his
responsibility to obtain an outside contractor, e.g., elevator or
boiler repair services.
Neither the superintendent nor his helper are responsible
for, nor did they ever perform, duties similar to those con-
tracted to the outside cleaning companies except on the unex-
pected and rare occasion when an emergency cleaning func-
tion was required in the leased or common areas of the
building. For example, as explained by McKaba, a visitor to
the Building would use a stairway as a toilet, an occurrence
that obviously could not await the arrival of the cleaning
crew in the evening. In addition, although the superintendent
would receive complaints about inadequate cleaning from the
tenants, his sole recourse would be to relay those to the
cleaning contractor for remedy. In no other sense, did Nev-
ins’ employees perform cleaning services in the Building and
in no manner or form did any employee of any contractor
do any maintenance or repair work that was performed by
the superintendent or his helper or was within the scope of
their responsibility. And, it is noted that while Nevins’ leases
with its tenants required that Nevins was required to clean
the leased premises, nothing in those leases compelled Nev-
ins to accomplish that end with its own employees.
In 1965 Nevins entered into a collective-bargaining agree-
ment with the Union and thereafter, until 1987, executed re-
newal agreements on a 3-year basis. McKaba credibly, cor-
rectly, and reasonably testified that these agreements were in-
tended to, and did apply exclusively to the superintendent
and the helper, when there was one, as these were the only
Nevins employees at the Building. Thus, although the 1972–
1975 agreement, the earliest one in evidence, provides that
its terms are applicable to ‘‘all classifications of service em-
ployees under the jurisdiction of the Union,’’ the wages for
categories of ‘‘handyman,’’ ‘‘porter-foremen,’’ ‘‘starters’’
and ‘‘others,’’ which appear on the preprinted form contract,
are crossed out and in its place a ‘‘Rider’’ was inserted pro-
viding wage rates for the superintendent. The 1975–1978
agreement similarly contains a typed insert providing wages
for ‘‘superintendent’’ and ‘‘porter’’ where the various other
categories appear on the preprinted form. McKaba was not
sure what the designation ‘‘porter’’ meant, or why it was
used, but it is certain it was intended to cover the super-
intendent’s helper whose employment began in 1975. The
1978 form contract again sets forth wage rates for various
categories including guards, which had no applicability to
Nevins, and in its place appears the typed Rider for super-
intendent and porter.
The next agreement in evidence entitled ‘‘1987 Office
Agreement’’ is a form agreement which, while providing
wage rates for the classifications not employed at the Build-
ing by Nevins, does not have a typed Rider, as is the pre-
vious contracts, applicable to workers actually employed by
Nevins. There is no explanation for this departure form the
earlier practice noted. I have no difficulty in concluding,
however, despite the casual drafting of contractual language,
that the Union never was the bargaining representative for
any Nevins employees at the Building other than the super-
intendent and his helper who was employed between 1975
and 1989. In this regard not only is McKaba’s testimony
unrefuted, but the Riders providing for coverage over a su-
perintendent and porter use the singular, not plural form, as
is used in the preprinted contracts when designating wage
rates for various job classifications. It also is beyond doubt,
as described more fully below, that the agreements with Nev-
ins did not apply, and were not intended to apply, to any of
Nevins’ building service contractors or their employees.
In addition, the bargaining history subsequent to the 1987
contract puts to rest any lingering doubt concerning the very
limited scope and composition of the Nevins’ bargaining
unit. It is undisputed that Nevins did not sign any post-1987
successor agreement although the Union proffered one for
signature for a period to expire December 31, 1992. On Oc-
tober 30, 1990, Nevins’ attorney at the time wrote to the
Union rejecting the form agreement submitted for execution
because it failed ‘‘to delete any references to any category
other than the superintendent,’’ as was done in the 1972 con-
395SERVICE EMPLOYEES LOCAL 32B-32J (NEVINS REALTY)
tract by a special rider. In addition, the letter informed the
Union that at the time ‘‘the only person covered by this
agreement at the premises, is the superintendent’’ and fur-
ther, ‘‘that no employees of any contractor are covered by
the agreement’’ a reference to a dispute on this issue dis-
cussed below. There is no evidence the Union replied to this
letter or otherwise questioned its contents. Thus, the facts are
indisputable that prior to 1989 the Nevins bargaining unit
consisted of the superintendent and his helper, that after 1989
the superintendent was the only unit employee, and that the
Union’s nonresponse to the October 1990 letter is a fairly
clear indication that even the Union did not seriously take
issue with these facts.
These findings and conclusions are not affected at all by
the Union’s argument that the 1987 agreement automatically
renewed itself thereby obviating the need to secure a succes-
sor agreement in writing. Furthermore, this position is con-
trary to the evidence relied on by Respondent in support. I
reach this issue because it was fully litigated by Respondent
despite the General Counsel’s theory of the case which rests
on the premise that Nevins was subject to an arbitration pro-
ceeding the resort to which, by the Union, constituted coer-
cive conduct under the circumstances. But, if no contract ex-
isted and therefore Nevins was not bound to arbitrate, then
the legality of the Union’s conduct very well might be af-
fected by this additional circumstance. In addition, the con-
tractual provisions relevant to the Union’s claim that the
1987 contract was automatically renewed, even as seen from
the Union’s vantage point, serve to illuminate and reinforce
the conclusions concerning the scope of the Nevins bargain-
ing unit and my findings below that the purported work pres-
ervation provision of the 1987 contract does not apply to the
Nevins’ unit but rather was intended by the Union to regulate
employment conditions elsewhere, namely nonunion cleaning
contractors with whom Nevins sought to do business.
The 1987 agreement, which was signed on January 19,
1988, recites at page 2 in article II(2) that, except as other-
wise provided (a phrase not readily explainable), it is effec-
tive as of January 1, 1987. The expiration of that agreement,
however, varies for different classifications of employees and
is found at different provisions of the agreement. Thus, for
all but two classifications, the expiration date is December
31, 1989, as provided by article VIII at page 5. That same
article, however, sets February 28, 1990, as the expiration
date for guards, and January 31, 1990, for ‘‘former Local
164 Superintendents,’’ a category not otherwise defined.
With regard to other superintendents, the only classification
employed by Nevins after 1989 the expiration date would
seem to appear in article X under a heading ‘‘Paragraph
51—Superintendents.’’ At section II(10) thereof, on an un-
numbered page inserted between pages 14 and 15, it is stated
that ‘‘This agreement covering the Superintendent shall ex-
pire January 31, 1990.’’ By process of elimination, it appears
this provision applies to the Nevins superintendent inasmuch
as article X, paragraph 51, section 1 is the only portion of
the contract providing wage rates for superintendents, not-
withstanding the further provision at article X, paragraph 51,
section II(9) that all of paragraph 51 of article X applies only
to superintendents previously covered under a Local 164
contract. That would appear to be redundant in light of the
expiration date for the same employees set forth in article
VIII, and, if it means what it says, it would leave non-Local
164 superintendents without a wage rate. Moreover, the rea-
son for inserting this otherwise unconnected page in the Nev-
ins contract, would be a mystery. Rather, the inference seems
warranted that it was intended to serve the same purpose as
the riders in the earlier agreements and to provide what the
form agreement lacks, namely specific terms of employment
for the Nevins superintendent.
As difficult as it is to determine an applicable expiration
date from this maze of contractual provisions, it is almost a
Herculean task to find an automatic renewal clause to which
any of these possible expiration dates reasonably would be
connected. The only such provision in the 1987 contract, and
the one relied on by the Union according to the testimony
of Kevin McCullock, assistant to the president of the Union,
is to be found at article VI,1(c), which by its terms provides
for continuation of the agreement on its expiration pursuant
to article VIII, a provision of doubtful applicability inasmuch
as there is not a suggestion in the record to conclude that
the Nevins employee was a ‘‘former Local 164 superintend-
ent.’’ Furthermore, reference to article VI for automatic re-
newal should cause even greater concern, if not a healthy
dose of skepticism. That article, consisting of seven para-
graphs (1,a through c, and 2 through 4), is entitled ‘‘Sale or
Transfer of Building’’ and paragraph 1(c) thereof is an inte-
gral and interdependent part thereof. Without belaboring the
issue, that entire article is devoted exclusively to a variety
of circumstances surrounding the sale or transfer of a build-
ing and the imposition of the agreement on a transferee, and
by its clear and explicit terms would seem, to even a casual
reader, to have no relevance to the Building here which has
been owned and operated continuously since 1965 by Nev-
ins. Therefore, I conclude the Union was not genuinely con-
cerned with any of the terms and conditions of employment
of Nevins’ unit employee but, as its conduct makes abun-
dantly clear, it was seeking to regulate the labor conditions
of Nevins’ cleaning contractors. We turn then to the proxi-
mate events leading to the complaint.
Prior to 1989 the cleaning contractor engaged by Nevins
was a firm call ISS Maintenance (ISS). In about early 1989
McKaba was seeking to replace ISS because of tenant com-
plaints over the poor performance of ISS. In a conversation
with the Union’s representative who serviced the Building,
Tony Poccio, McKaba was told that if he did not replace ISS
with a union contractor who would retain ISS’s union em-
ployees, ‘‘the Union might do something, might walk or
something’’ a euphemism in the parlance of labor relations
for a threatened strike. Although McKaba protested that his
agreement with the Union only covered his superintendent,
and not the contractor, and that ISS’s employees were so in-
competent his lease with the State was in jeopardy, he
deemed it the better part of discretion to heed the threat.
Consequently, Nevins replaced ISS with Guardian Service
Industries, Inc., a union contractor, on September 26, 1989.
Although Poccio had warned against replacing the ISS em-
ployees, they were not retained by Guardian without any evi-
dent protest by the Union. The conclusion is inescapable that
the Union’s focus was on employment opportunities for
members generally, and not at preserving jobs for unit em-
ployees at a specific contractor. This is not to imply that the
Union was entitled to use coercive means against Nevins to
achieve even this object, it was not. The Union’s conduct at
the time of ISS’s replacement by Guardian is noted because
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it tends to demonstrate that the defense of work preservation
not only is inapplicable in this case but is a suspect claim
in any event.
Prompted by the Union’s conduct, Nevins, on October 20,
1989, filed a notice of intention to arbitrate, claiming that by
insisting on a restriction requiring that only union contractors
be engaged to do cleaning services at the Building, the
Union violated article VII of the collective-bargaining agree-
ment (on that date, the 1987 agreement was still in effect
under any of the possible expiration dates), which places cer-
tain limitations on subcontracting ‘‘of work heretofore per-
formed by employees covered by this Agreement.’’ It was
Nevins’ position that only the superintendent was protected
by that article and the Union’s strike threat to extend such
protection to ISS’s employees violated the article.
On November 10, 1989, union counsel wrote to Nevins’
lawyer as follows:
Our firm represents Local 32B-32J, Service Employ-
ees International Union. We have received a copy of a
Notice of Intention to Arbitrate from your firm in con-
nection with the above captioned matter. I would like
to clarify the Union’s position in connection with your
demand for arbitration.
Under the terms of the collective bargaining agree-
ment, in the event the Employer wishes to subcontract
any portion of the work which work comes under the
jurisdiction of the Union, it may do so in accordance
with the subcontracting clause of the Agreement. It ap-
pears that your company had subcontracted portions of
the work and that it now wishes to switch contractors.
Under the Union agreement, the new contractor would
be required to hire the former employees and maintain
the wage and benefit structure. There is no requirement
that the new contractor sign a union agreement.
After several meetings between counsel and the arbitrator
produced no resolution of the dispute, the arbitration demand
was withdrawn by Nevins. McKaba explained that on advice
of his counsel he withdrew the matter because of fear that
the State would terminate its lease if there was any disrup-
tion of the cleaning service. Although Guardian had already
been retained, his counsel also advised him to use a union
contractor, a comment not entirely clear in its meaning under
the circumstances, but of no significance either.
Thus, the arbitrator made no rulings whatsoever, no hear-
ings were conducted, no evidence was presented to the arbi-
trator, and no settlement was entered into and the parties
reached no bilateral understanding of the meaning of article
VII. Nevins simply made a business judgment to capitulate
to the Union’s demand and threat. It is this oral surrender,
on a date which does not appear in the record, that Respond-
ent relies on in support of its double defense that the instant
complaint is time barred by Section 10(b) and by the Board’s
policy of deferral to the arbitral process and settlements
reached pursuant thereto.
After a period of time Guardian’s services proved no more
satisfactory to McKaba than ISS’s, and once again Nevins
proceeded to find a replacement contractor. On May 1, 1991,
McKaba sent a letter to Guardian terminating their services
at the Building on May 31, and on May 15, following oral
negotiations, Nevins retained Golden Mark Maintenance to
begin the cleaning services on June 1, 1991. According to
the credited testimony of Timothy Harper, Golden’s general
manager, Golden began this work with a crew of four em-
ployees who worked from 4:30 p.m. to 1 a.m. and who were
represented by, and worked pursuant to a collective-bargain-
ing agreement with, Local 445 Laborers’ International Union
of North America, AFL–CIO. The Golden employees em-
ployed at the Building were not new hires but rather had
been employed prior to June 1. And further, it is admitted
by Respondent that it has had a labor dispute with Golden
because Golden does not employ members of, or have a con-
tract with, Respondent. In furtherance of this dispute Re-
spondent has leafletted buildings where Golden’s employees
have been performing cleaning services.
On May 17, 1991, in response to Nevins’ retention of
Golden, union counsel wrote the following to Nevins’ law-
yer:
This letter is submitted on behalf of Local 32B-32J,
Service Employees International Union, AFL-CIO. It
has come to the Union’s attention that your client, Nev-
ins Realty Corp., has decided to contract out certain of
the building service work at 333 Schermerhorn Street to
Goldenmark Cleaning Contractors. You may recall that
in November 1989, I clarified to you the Union’s posi-
tion vis a vis the subcontracting clause of the ‘‘Office
Agreement.’’ This provision provides that should your
client subcontract any portion of the work or switch
subcontractors, then the new contractor must be re-
quired to hire the former employees and maintain the
wage and benefit structure. There would be no require-
ment that the new contractor sign a contract with Local
32B-32J.
It is requested that you provide us with proof as to
compliance with the above provision. Should any of the
information summarized above be incorrect, it is re-
quested that you advise the undersigned immediately.
On May 23, 1991, the Union’s assistant to the president
wrote to Golden that it represented the four Guardian em-
ployees at the Building (names and addresses supplied in the
letter) and that an ‘‘unconditional application for continued
employment’’ was made on their behalf. In addition, the let-
ter closed with the following: ‘‘Please contact the under-
signed as soon as possible to commence negotiations for a
Collective Bargaining Agreement to cover these employees.’’
When Nevins failed to respond to the Union’s satisfaction,
a demand for arbitration was made on Nevins by the follow-
ing letter to the contract arbitrator on June 5, 1991:
Local 32B-32J is signatory to the 1987 Independent
Office Agreement covering the above mentioned build-
ing. That agreement designates the Office of the Con-
tract Arbitrator as arbitrator in the event of disputes.
The subcontracting provision of the Collective Bar-
gaining Agreement provides that in the event that a re-
placement contract, or [sic] is hired, the successor con-
tractor shall hire the existing employees and maintain
their wages and benefits. On June 3, 1991, Golden
Mark Maintenance replaced Guardian Cleaning Con-
tractors as contractor in the above building and refused
to hire the former employees.
397SERVICE EMPLOYEES LOCAL 32B-32J (NEVINS REALTY)
It is the position of the Union that the former em-
ployees of Guardian must be maintained in the building
under the same terms and conditions. The Union is de-
manding the immediate reinstatement with full back
pay for all employees plus such other relief as the arbi-
trator deems appropriate. The employer is:
Nevins Realty Corp.
c/o Raymond McKaba
350 Livingston Street
Brooklyn, NY 11217
The full text of the subcontracting provision referred to in
the aforesaid union demand is as follows:
ARTICLE VII—Subcontracting
1. The Employer shall not make any agreement or
arrangement for the performance of work and/or for the
categories of work heretofore performed by employees
covered by this Agreement except within the provisions
and limitations set forth below.
2. The Employer or contractor shall give advance
written notice to the Union at least three (3) weeks
prior to the effective date of its contracting for services,
or changing contractors, indicating name and address of
the contractor.
3. The Employer shall require the contractor to retain
all bargaining unit employees working at the location at
the time the contract was awarded and to maintain the
existing wage and benefit structure. The Union may re-
ject said contractor where the contractor has not made
proper payments to the Health, Pension, Training, Legal
and/or Annuity Funds or has habitually failed to com-
ply with labor agreements with the Service Employees
International Union (SEIU) covering other buildings in
New York City, Nassau and Suffolk Counties and New
Jersey in the industry.
The Employer agrees that employees then engaged in
the work which is contracted out shall become employ-
ees of the initial contractor or any successor contractor,
and agrees to employ or re-employ those employees
working for the contractor when the contract is termi-
nated or cancelled. This provision shall not be con-
strued to prevent termination of any employee’s em-
ployment under other provisions of this Agreement re-
lating to illness, retirement, resignation, discharge for
cause, or layoff by reason of reduction of force; how-
ever, a contractor may not reduce force or change the
work schedule without first obtaining written consent
from the Union.
With respect to all jobs contracted for by the Em-
ployer where members of the Union were employed
when the contract was acquired, it is agreed that the
Employer shall retain at least the same number of em-
ployees, the same employees under the same work
schedule, and assignments including starting and quit-
ting times of each employee.
If the contractor adopts this Agreement and fails to
comply with this Agreement, the Employer shall be lia-
ble severally, and jointly with the contractor, for any
and all damages sustained by the employees as a result
thereof, or for any unpaid Health, Pension, Training,
Legal and/or Annuity contributions. The Employer’s li-
ability shall commence the date it receives written no-
tice from the Union of the contractor’s failure to so
comply.
Any cleaning contractor who performs services for
an owner and/or managing agent who is signatory to
this agreement shall be entitled to the following provi-
sions of this agreement at the signatory building: Se-
niority, Hours, Flexibility, and Work of Absentees.
4. This Article and Article VI are intended to be
work preservation provisions for the employees em-
ployed in a particular building. In the event that the ap-
plication of this Article or Article VI, or any part there-
of, is held to be in violation of law, then this Article
or Article VI, or any part thereof, shall remain applica-
ble to the extent permitted by law.
Discussion
The General Counsel’s brief states the well-established
principle that Section 8(b)(4)(B) expresses
the dual congressional objectives of preserving the right
of labor organizations to bring pressure to bear on of-
fending employers in primary labor disputes 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). As aptly described by Judge Learned Hand in Elec-
trical Workers IBEW Local 501 (Samuel Langer) v. NLRB,
181 F.2d 34, 37 (1950), affd. 341 U.S. 694 (1951):
The gravamen of a secondary boycott is that its sanc-
tions bear, not upon the employer who alone is a party
to the dispute, but upon some third party who has no
concern in it. Its aim is to compel him to stop business
with the employer in the hope that this will induce the
employer to give in to his employees’ demands.
Our task then is to determine whether the Union’s pressure
directed at Nevins was aimed at resolving a dispute involving
Nevins’ employees or was it for a goal of satisfying union
interests elsewhere, in this case the nonunion employer Gold-
en. If the latter, then it can be concluded that an object of
the Union’s conduct was to disrupt Nevins’ business dealings
with Golden. That need not have been Respondent’s only ob-
ject since Section 8(b)(4)(B) is violated if ‘‘any object of
[the coercive activity] is to exert improper influence on sec-
ondary or neutral parties.’’ Electrical Workers IBEW Local
501 (C. W. Pond Electric) v. NLRB, 756 F.2d 888, 892 (D.C.
Cir. 1985); see also NLRB v. Denver Building Trades Coun-
cil, supra.
Analysis of the circumstances here fully supports the Gen-
eral Counsel’s argument that Nevins is a neutral employer
within the meaning of Section 8(b)(4)(B). Thus, the Union
certainly was engaged in a labor dispute with Golden be-
cause it did not employ union members at the Building or
have a union contract. The nature of this dispute manifested
itself in numerous ways. Respondent leafleted Golden, it’s
lawyer wrote to Nevins that Golden was required to employ
Guardian’s employees under the Union’s wages and benefits,
albeit without having to sign a union contract, and the Union
wrote to Golden claiming to represent the Guardian employ-
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Lengthy discussion is not required to conclude this was not a set-
tlement which could be likened to an arbitration award meeting all
of the deferral standards, if, for no other reason, the settlement was
repugnant to the Act. Furthermore, language would be stripped of all
common sense meaning to characterize Nevins’ surrender to a strike
threat as a voluntary settlement. Cases such as Alpha Beta Co., 273
NLRB 1546 (1985), relied on by Respondent are factually inapposite
for the reasons set forth earlier in this decision. Nor does Sec. 10(b)
bar this complaint. While the 1989 incident sheds light on Respond-
ent’s secondary objective, the events giving rise to this complaint
and the violation flowing therefrom are not inescapably grounded on
any time barred events. Indeed, this violation exists even if the 1989
event never occurred. Respondent’s argument to the contrary is with-
out merit. This case presents a new contracting by Nevins to a dif-
ferent contractor which resulted in an entirely new and different
course of conduct by all parties.
ees on whose behalf employment was requested coupled with
a demand for a union contract, a different but more candid
and credible approach to the employment of union members
who are to receive union wages and benefits.
Then, we have the Union’s demand for arbitration claim-
ing that the subcontracting provision of the agreement had
been violated by Nevins because it had not required Golden
to hire the Guardian employees and to maintain their wages
and benefits and seeking by way of relief the establishment
of these conditions and such other relief deemed appropriate
which of course, as testified to by the union representative,
means such relief as the Union would request. In light of the
Union’s letter and the 1989 incident described here, it is rea-
sonable to infer that such other relief would also have in-
cluded a union contract. We can not be blind to the fact that
the Union, if it wanted to protect the wages and benefits of
the Guardian employees as it so vigorously claimed, would
have, of necessity, required a contract. The Union did not
disclaim such relief or disavow wanting those benefits, e.g.,
health and welfare contributions, that require a contract. As
discussed more fully below, this was not a demand to inter-
pret a contract provision, but rather a demand that an arbitra-
tor write a new provision and impose it on Nevins under the
guise of arbitration, which provision would have contravened
Section 8(e).
Additional evidence of the Union’s secondary objective in
resorting to the language of the 1987 contract, is the incident
in 1989 when the Union aborted a similar attempt by Nevins
to replace an unsatisfactory union contractor by threatening
a strike unless any new contractor hired the very employees
Nevins wanted replaced. Despite this preferred union desire,
however, the matter was resolved to the satisfaction of the
Union by Nevins simply securing the services of another
union contractor with new and different employees. The
Union was content with such an outcome notwithstanding
that it sought to bar Nevins from obtaining a new contractor
by invoking the same contract language at issue here. Thus
is revealed the true relief sought by the Union.
In sharp contrast to the Union’s concern with regulating
the employment terms and conditions of Nevin’s contractors
there is not so much as a hint of dissatisfaction with Nevins
over the terms and conditions of any of Nevin’s employees
at any building, particularly the one superintendent who com-
prised the bargaining unit at the Building. That the Union’s
pressure on Nevins was in furtherance of its primary dispute
with Golden simply is beyond argument. Any one of the sev-
eral union actions described above prove this conclusion and,
taken together, the combination of events establishes Nevins
as a neutral or secondary employer, within the contemplation
of Section 8(b)(4)(B). And, it matters not for determining
Nevins’ neutrality whether the Union wanted a contract with
Golden covering the union employees it wanted hired as the
Union sought in its letter to Golden, or simply wanted to dic-
tate to Golden the composition of its labor force and their
terms of employment even without benefit of a contract, as
the Union’s lawyer so disingenuously stated in his letters to
Nevins demanding that Nevins require that any new contrac-
tor hire the unionized employees and maintain their union
benefits. In either situation, the Union was seeking to regu-
late employment conditions at an employer other than Nev-
ins.
Nor does it really matter in resolving Nevins’ status as a
neutral whether the Union genuinely was seeking to secure
jobs for the displaced unionized employees or would have
been equally satisfied if Nevins merely replaced one union
contractor with another union contractor as it did in 1989.
Again, in either instance the Union’s objective was to satisfy
its interests generally rather than at the pressured employer,
Nevins. Although the Union argues that the 1989 incident re-
garding ISS’s replacement by Guardian constitutes a ‘‘settle-
ment’’ of the immediate dispute to which the Board should
defer, and therefore dismiss this complaint, an argument I
find without merit,2 I conclude that it is relevant for a dif-
ferent purpose. Namely to demonstrate that by invoking the
same contract language then as now an object of the Union’s
conduct was to regulate the employment conditions of con-
tractors with whom Nevins could do business to union sig-
natories not merely contractors meeting union standards and
hiring union employees.
We turn then to a fuller discussion of the Union’s arbitra-
tion demand premised on Nevins’ alleged violation of article
VII of the 1987 collective-bargaining agreement, assuming
arguendo that Nevins was a party to that agreement on May
15, 1991, when Nevins retained Golden. The plain unambig-
uous language of subparagraph (1) is that the clause purports
to protect employees covered by the agreement (unit employ-
ees), and only those employees, in the event the principal
employer (Nevins) subcontracts unit work. Thus, the thrust
of the clause, on its face, does not appear to run afoul of
Section 8(e) (it is unnecessary to decide whether or not other
provisions of article VII violate Section 8(e) under the cir-
cumstances herein). Nothing in that clause speaks to protect-
ing jobs or standards of employees employed by a contractor
of Nevins, in this case, Guardian. And, if it did, it would im-
mediately raise 8(e) concerns because its focus would be di-
rected at union interests outside the principal work unit. By
invoking this clause to protect jobs of Guardian’s employees,
the Union was asking the arbitrator to rewrite, under the
guise of interpreting, article VII in such a way as to render
it a provision which would violate Section 8(e), for it is be-
yond doubt that a clause which seeks to protect union inter-
ests generally, or jobs outside the principal work unit, is a
clause with secondary objectives in violation of Section 8(e).
See NLRB v. Maritime Union (Commerce Tankers), 486 F.2d
907 (1973), enfg. 196 NLRB 1100 (1972).
The illegal objective inherent in the arbitration demand is
further manifested in the almost simultaneous letter of the
Union to Golden claiming representative status of its em-
399SERVICE EMPLOYEES LOCAL 32B-32J (NEVINS REALTY)
ployees and requesting a union contract. This one-two punch
by the Union and its counsel, in light of the 1989 incident,
demonstrates that the Union, by resorting to arbitration, was
seeking to convert the so-called work preservation clause
into a union signatory clause, restricting Nevins to engaging
only union cleaning contractors. Absent an 8(e) allegation, it
is not necessary to decide if the unilateral conduct of the
Union constitutes a reaffirmation of an 8(e) clause within the
10(b) period. It is enough for this case that the Union, if suc-
cessful, would at least have had an 8(e) clause imposed on
Nevins because it would have disrupted its business dealings
with others. ‘‘An attempt to cause a significant change in a
secondary person’s method of doing business constitutes a
‘cease doing business’ objective.’’ AGC of California v.
NLRB, 514 F.2d 433, 437 fn. 6 (citation omitted) (9th Cir.
1975).
In addition, this effort of the Union would have resulted
in violations of the Act other than Section 8(e). Surely, Re-
spondent must have intended to accomplish the immediate
and direct consequences of its demand on Golden, which
when coupled with the arbitration demand, would have re-
quired Golden to replace its work crew with Respondent’s
members and sign a union contract, despite the fact it already
employed members of another union (Local 445 Laborers)
under that union’s contract. There is no doubt such intended
results are equatable with an object of Respondent’s conduct.
The net result, of course, is that Golden would have been
compelled to violate Section 8(a)(3) by conditioning employ-
ment on union membership and by signing a union-security
agreement with Respondent, Section 8(a)(2) by recognizing
Respondent under these circumstances, and Section 8(a)(5)
by disregarding its lawful obligations to Local 445 Laborers.
For its part, Respondent would then have been in violation
of Section 8(b)(1)(A) and (2). Accordingly, I find several il-
legal objectives embodied in the arbitration demand and, in
so doing I reject the Union’s major defense that in reality
Nevins was not a neutral but rather a primary employer in
the dispute thereby immunizing union pressure against it
under the accepted doctrine of work preservation as articu-
lated in National Woodwork Mfrs. Assn. v. NLRB, 386 U.S.
612 (1967).
In that case, a general contractor (Frouge) had a union
agreement which provided that its own carpenter employees
would not be required to install doors that had been finished
off the job, work which the jobsite carpenters traditionally
performed. When Frouge ordered prefinished doors, which it
was not required to do by its contract with the project owner,
the union would not allow Frouge’s employees to install
them. The Court concluded that the union’s boycott in sup-
port of the contractual restriction was primary because, in the
words of Justice Harlan, it had as the ‘‘sole objective the
protection of Union members from a diminution of work’’
that ‘‘traditionally had been performed . . . on the jobsite.’’
(386 U.S. at 648.) The analytical framework to be applied
is ‘‘whether, under all the surrounding circumstances, the
Union’s object was preservation of work for Frouge’s em-
ployees, or whether the agreements and boycott were
tactically calculated to satisfy union objectives elsewhere.
Were the latter the case, Frouge, the boycotting employer,
would be a neutral bystander, and the agreement or boycott
would . . . become secondary.’’ (386 U.S. at 644–645, fn.
omitted.)
The Union is correct that National Woodwork, supra, prin-
ciples govern this case but they do so to support a violation,
not to privilege the Union’s conduct. Nevins, unlike Frouge,
did not contract out work which its own employees had tra-
ditionally and historically performed. The record is clear and
uncontradicted that from the day the Building opened in
1965 Nevins always, without interruption, contracted out the
general cleaning work to a series of contractors and that it
is that work exclusively that is the subject of the Union’s
work preservation claim. It is axiomatic that Nevins could
not preserve work for its employees which its employees
never performed and that pressure directed to Nevins there-
fore is pressure against a neutral employer. Confronted by
Respondent’s demands, Nevins had the following options
available; it could have required Golden, as a condition of
doing business, to fire its employees, hire the Guardian em-
ployees, and sign a Union contract as Respondent demanded
of Golden, or failing that, it could have terminated its con-
tract with Golden and reinstated Guardian or retained another
union contractor. In any case, the pressure on Nevins was not
‘‘a shield carried solely to preserve the members’ jobs’’ for
the contracting employer but was a sword used ‘‘to reach out
to monopolize jobs or acquire new job tasks’’ (386 U.S. at
630–631) which quite properly has been long viewed as sec-
ondary activity.
The Union seeks to refute Nevins’ status as a neutral,
unoffending employer, by arguing further that since Nevins
had the right to control the award of the work, indeed had
the right to perform it with its own employees, action di-
rected against Nevins was lawful primary activity in further-
ance of the work preservation language in the contract. I find
no merit to this argument because it is a distortion of the
‘‘right to control’’ test under the factual circumstances of this
case. In NLRB v. Plumbers Local 638, 429 U.S. 507 (1977),
the Supreme Court approved the Board’s utilization of the
‘‘right to control’’ test which, under certain circumstances, is
a method of analysis for finding a union’s objective second-
ary, not primary, despite a contractually valid work preserva-
tion clause. Briefly, that case stands for the proposition that
when an employer has no power to assign to its own em-
ployees work which its own employees traditionally had per-
formed, union pressure on its employer to obtain that work
is considered secondary because of the inexorably logical
conclusion that such pressure tactically is calculated to sat-
isfy union objectives elsewhere. The Court held that mere
existence of a work preservation clause is insufficient to con-
vert such conduct into lawful primary activity. Conversely, if
the targeted employer had the right to control the assignment
of the traditional unit work, then the union’s activity to com-
pel the employer to abide by a valid work preservation
agreement would be primary under the National Woodwork
framework.
But, central to the right to control analysis, and prelimi-
nary to its significance in a given dispute, is a threshold find-
ing that the work in question, the work the union seeks to
preserve, must have been work traditionally done, or fairly
claimable by, the employees of the targeted employer. There
must first be a semblance of validity to the work preservation
claim. The Respondent casually ignores the single,
uncontested, firmly evidenced fact that Nevins’ employees,
the principal work unit, never did the building cleaning work
the Union seeks ‘‘to preserve.’’ It is unit work, not union
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work, that may be preserved, see Plumbers Local 638, 429
U.S. at 517, and National Woodwork, 386 U.S. at 629.
Therefore, having found that the Union was not seeking to
preserve unit work at Nevins, there is no occasion to weave
into the analysis the ‘‘right to control’’ doctrine. It is irrele-
vant to the genuine issues in the case even if there existed
a valid work preservation agreement between Respondent
and Nevins, a finding that I do not make by any means. In
effect, the Union, by arguing that Nevins had the right to
control the disposition of nonunit work, admits that it wanted
Nevins to exercise the power it had to resolve the dispute by
ceasing to do business with Golden. Manifestly, an object of
its conduct was to induce this result. The right to control
doctrine is a refuge for a union seeking to preserve bargain-
ing unit work at the contracting employer. It is not a device
for intruding into the business practices of an employer as
Respondent argues here.
Lastly, the Union’s claim that it only was lawfully seeking
to preserve work fairly claimable, even if not actually done,
by Nevins’ employees has no record support and is without
factual or legal merit. Again, the Union erroneously focuses
on the type of work union members may have done in the
building cleaning trade rather than on the work traditionally
performed by the unit employees at Nevins. Where, as here,
the unit employees have not lost the work they performed,
let alone threatened with such loss, it is a nonsequitur to as-
sert that the work the union wants to preserve is fairly claim-
able by the unit. And where, as here, the principal work unit
has remained intact and unaffected by any change or threat-
ened change in the employer’s method of doing business,
e.g., where no technological changes or subcontracting has
occurred, there is no possible basis for considering what
work, if any, is fairly claimable by the unit. Inasmuch as
Nevins’ employees did not lose work, union efforts to re-
quire Nevins to undertake the cleaning tasks previously per-
formed by contractors, because Nevins controlled the ulti-
mate disposition of the cleaning work, as suggested in the
union brief, would be an impermissible attempt to acquire
work that had been performed outside the bargaining unit.
This case presents a very simple, uncomplicated task on
the issue of work preservation. The nature of the work done
by Nevins’ employees involved superintendent/repair func-
tions while the general cleaning of the Building, from the
day the Building opened in 1965, was done by employees of
contractors in different bargaining units. This practice has
continued without interruption to the present day and the
Union all but admits that the work in dispute in this case is
the cleaning work contracted to Golden. In order to cir-
cumvent this obvious fact the Union argues, in effect, that
the contractor’s work is fairly claimable by Nevins’ unit be-
cause cleaning tasks fall within the Union’s trade jurisdiction
and is capable of performance by the superintendent or help-
er. While this is the only argument available to the Union,
it is contrary to clearly established precedent because it
would focus on the work done by members outside the bar-
gaining unit. See NLRB v. Longshoremen ILA, 447 U.S. 490
(1980), a case involving a complex and difficult task of de-
termining whether or not certain container work done off the
pier was the functional equivalent or sufficiently related to
the type of work previously done by unit employees at the
pier which work was eliminated by technological changes in
the industry. If so, then it could be said the work was fairly
claimable by the unit employees and subject to a lawful
claim of work preservation. Pertinent here is the Court’s ob-
servation that
to determine whether an agreement seeks no more than
to preserve the work of bargaining unit members, the
Board must focus on the work of the bargaining unit
employees, not on the work of other employers who
may be doing the same or similar work. [447 U.S. at
507 (fn. omitted).]
It bears repeating that Respondent here was lawfully entitled
only to preserve work fairly claimable by Nevins’ unit,
which unit was not even threatened with a loss of the super-
intendent’s duties or those of his helper.
Having concluded that an object of Respondent’s arbitra-
tion demand was to force or require Nevins to cease doing
business with Golden, or any other contractor unsatisfactory
to Respondent, we turn to the more troubling issue presented
by the General Counsel’s argument that the arbitration de-
mand constitutes coercive conduct prohibited by Section
8(b)(4)(ii). Article V of the 1987 agreement provides that ei-
ther party can seek arbitration over any dispute or grievance
before one of the contract arbitrators named in the agree-
ment. If either party fails to abide by the award, the other
‘‘party, may, in its sole and absolute discretion, take any ac-
tion necessary to secure such award including but not limited
to suits at law.’’ Pursuant thereto, the Union sent its June 5,
1991 letter to the contract arbitrator claiming, as noted
above, a violation of the subcontracting provision. That letter
demand is alleged as coercive conduct, under the cir-
cumstances and in accordance with the holdings of the Board
in Teamsters Local 705 (Emery Air Freight), 278 NLRB
1303, 1304–1305 (1986), remanded in relevant part 820 F.2d
448 (D.C. Cir. 1987), and of the Board and court in Team-
sters Local 25 (Boston Deliveries), 282 NLRB 910 (1987),
enfd. 831 F.2d 1149 (1st Cir. 1987).
In the first case, certain of Emery’s employees had been
represented by Local 705 while other delivery work had been
contracted to a company (Steping) whose employees were
represented by another union. When Emery changed to a
nonunion contractor (DPD) Local 705 threatened to and did
strike Emery for not using a union contractor, which conduct
had a clear object to force Emery, a neutral, to cease doing
business with DPD. The union also filed a grievance claim-
ing a violation of the collective-bargaining agreement’s re-
quirement that contractors pay the equivalent of union wages
and benefits, which grievance was upheld by a board of arbi-
trators. In evaluating the legality of the grievance the Board
also observed that Local 705 had not performed the work in
question for Emery nor had it represented the employees of
Steping and under those circumstances the grievance could
not be in furtherance of a legitimate work preservation ob-
ject. It thus concluded that the grievance filing was in fur-
therance of the cease doing business object evidenced by the
threat and strike and therefore was itself a violation of Sec-
tion 8(b)(4)(ii)(B).
The instant case has certain parallels as well as distinc-
tions. Here, Nevins, like Emery, never did the work with its
own employees despite having a union contract covering
other of its employees. But, unlike the Emery situation, the
Union here had represented the contractor’s employees.
401SERVICE EMPLOYEES LOCAL 32B-32J (NEVINS REALTY)
3 It also is pertinent to note the court’s reservation and uncertainty
that Bill Johnson’s restrictions are germane to an arbitration proceed-
ing in contrast to a suit instituted in a court of law. Boston Deliv-
eries, 831 F.2d at 1149 fn. 4.
The grievance procedure is, of course, largely a matter of pri-
vate contract. Unlike access to the state courts for purposes of
Continued
However, I believe this circumstance does not undermine in
any way the concept espoused in the overwhelming body of
case law that a lawful work preservation defense can be sus-
tained only where the targeted employer’s unit performed the
work in question. If it were otherwise, Emery would not
have been found to be neutral in its union’s dispute with
DPD. Rather, the only significance to the aforesaid observa-
tion regarding Steping, appears to relate to the legitimacy of
the union’s grievance which at least facially sought to pre-
serve area standards—presumably Steping met those stand-
ards—and the claim that contracting to a totally nonunion
contractor violated those standards. Moreover, it does not ap-
pear that Local 705 sought by way of arbitrable relief that
DPD do more than meet these standards, a far cry from Re-
spondent’s demand which substantially and materially distin-
guishes the instant case from Emery. Furthermore, that obser-
vation was passed over by the court in affirming a violation
predicated on the strike and threat against Emery, a neutral
employer. In addition, the court remanded the case to the
Board to determine if the demand for arbitration would have
resulted in an 8(e) violation.
The Emery court agreed with the Board that the Supreme
Court’s decision in Bill Johnson’s Restaurant, 461 U.S. 731,
737 fn. 5 (1983), would not protect a grievance filed for an
illegal object where for example the ‘‘remedy could not law-
fully be imposed under the Act,’’ assuming arguendo the ap-
plicability at all of Bill Johnson’s to a grievance as distin-
guished from a lawsuit. Teamsters Local 705 v. NLRB, 820
F.2d 448, 452 (D.C. Cir. 1987). However, the court took
issue with the Board’s failure to explicitly find an object of
the grievance to be secondary in which case ‘‘the contract
provision sought to be enforced must itself have been ille-
gal,’’ in light of the grievance board’s conclusion that the
clause was no more than an area standards agreement. Ibid.
It is significant that in discussing whether or not the clause
had a legitimate work preservation object the court did not
hold that the Steping unit employees could be protected by
enforcing a contract against Emery. Rather, the court reiter-
ated that: ‘‘In determining the agreement’s legality, the
Board must, to be sure, consider whether it had a legitimate
work preservation objective, or was instead directed at affect-
ing the fortunes of non-bargaining unit employees.’’ Id. at
452–453.
I believe that the Emery decision, both by the Board and
court, are persuasive in finding a violation in this case in
light of my earlier conclusion that the clause as applied to
Nevins by way of an arbitration demand had a secondary ob-
ject as well as other objectives illegal under the Act. The Re-
spondent invoked a clause that was not applicable to Nevins
in the first place inasmuch as Nevins was not subcontracting
its own work and, unlike the Emery union, Respondent here
was not even pretending to protect area standards but rather
was seeking to acquire work for union members outside the
principal work unit by trying to impose a union signatory
agreement. This object renders irrelevant the fact that Re-
spondent’s members had performed the work as employees
of Nevins’ contractors since they had not been employed in
the Nevins’ bargaining unit.
In Boston Deliveries, supra, the union filed grievances for
pay in-lieu-of performing work which it claimed should have
been done by Boston’s unit employees rather that by Bos-
ton’s customer, Sears. In support of the grievance, and to
bring pressure on Boston in order that Boston pressure Sears
to change its work assignments, the union struck and pick-
eted Boston. The grievance was upheld by an arbitration
panel. The Board found all of the conduct coercive and vio-
lative of Section 8(b)(4)(i) and (ii)(B) but expressly refused
to find that the grievance filing and processing alone violated
the Act. The Board decision therefore neither supports nor
invalidates the General Counsel’s theory. However, the court
specifically addressed and rejected the union’s argument on
appeal that it was improper for the Board to include griev-
ance filing as a form of coercive conduct and made several
telling observations instructive to the resolution of the instant
matter.
The court noted the well-established principal that Section
8(b)(4)(ii) interdicts ‘‘any form of economic pressure of a
compelling or restraining nature’’ and ‘‘a contract clause,
however innocuous on its face, cannot be implemented by
striking a secondary employer.’’ Teamsters Local 25 (Boston
Deliveries) v. NLRB, 831 F.2d 1149, 1153 (1st Cir. 1987)
(emphasis in original, citations omitted). The court then pro-
ceeded to apply the portion of Bill Johnson’s, supra, dealing
with lawsuits filed with an improper motive and without a
reasonable basis, rather than focus on footnote 5 which ex-
cludes from protection suits filed for an illegal object, the
basis on which Emery was decided. The court concluded that
the Union’s objective was so clearly secondary and without
even a colorable contract claim that it could be characterized
both as improper and insubstantial or baseless and thus with-
out a reasonable basis. Id. at 1154. While it affirmed the
Board’s holding that the grievances were properly held to be
coercive as part of the entire course of conduct, the language
of the court strongly suggests that in similar circumstances,
grievances alone will be viewed as coercive.
In Teamsters Local 776 (Rite Aid), 305 NLRB 832 (1991),
affd. 141 LRRM 2176 (3d Cir. 1992), which involved a law-
suit to enforce an arbitration award contrary to a Board unit
finding, the Board restated that under Bill Johnson’s, law-
suits are not immune from constituting an unfair labor prac-
tice if, wholly apart from motive, they are filed for an illegal
object. Additionally, lawsuits filed for a retaliatory motive
and lacking a reasonable basis in fact or law similarly are
not immune from such finding. Under the particular facts in
Rite Aid, illegal objective was defined as ‘‘where the Board
has previously ruled on a given matter, and where the law-
suit is aimed at achieving a result that is incompatible with
the Board’s ruling.’’ Id. at 835. In Emery, supra, both the
Board and court also defined a lawsuit for an illegal objec-
tive as one seeking a ‘‘remedy that could not lawfully be im-
posed under the Act,’’ and as discussed above, that is the sit-
uation we are faced with here.
Nevertheless, the court reasoning in Boston Deliveries,
supra, concluding that Bill Johnson’s, did not protect the
type of unreasonable grievance Respondent pursued in this
case, loses none of its relevance and remains applicable with-
in the Rite Aid framework.3 Improper, if not retaliatory, mo-
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suit, the processing of grievances is not implicative of the same
concerns of comity, federalism, and First Amendment rights
which occupied the attention of the Bill Johnson’s Court. E.g.,
461 U.S. at 741–743. Thus, a strong argument can be made that
the Board’s condemnation of the union’s course of conduct in
this case need not measure up to the stringent Bill Johnson’s
benchmark. Inasmuch as we find that the grievances in this case
were filed to achieve an impermissible end and without any rea-
sonable hope of success, see text post, we simply note the dis-
tinction and leave for another day the generic question of wheth-
er some other (less rigorous) standard ought to apply when a
party to a labor dispute grieves rather than sues for allegedly im-
proper purposes.
4 The same situation that was applicable in Rite Aid where an
8(b)(3) violation turned on an earlier unit determination.
tive can be found in the fact that the arbitration had no
achievable legitimate purpose or goal. It sought only the ille-
gal purpose of imposing a hot cargo clause on Nevins and
creating a disruption of its business and commercial activities
by resort to a secondary boycott. The absence of a reason-
able basis both in fact and in law is evidenced by the follow-
ing findings. The contract clause Respondent relied on in its
arbitration demand does not reasonably apply to its dispute
with Nevins. The clause purports to prevent the contracting
employer from subcontracting unit work which, of course,
can not apply to Nevins’ effort to retain a new contractor to
do nonunit work. Thus, the dispute simply is not arbitrable.
Moreover, it is not arbitrable because of my finding that
there was no collective-bargaining agreement in existence be-
tween the parties at the time the dispute arose. Nor is there
any basis for finding that the dispute remained arbitrable be-
cause it arose under the expired agreement thereby surviving
its expiration. Litton Business Systems v. NLRB, 111 S.Ct.
2215 (1991). Accordingly, although the distinction between
an improperly motivated and unreasonably based arbitration
can be a blurry one, as the facts here would indicate, the
analysis supports a conclusion that Respondent’s arbitration
can be so described and that this case is removed from spe-
cial protection under all of the Bill Johnson’s standards.
Teamsters Local 483 (Ida Cal), 289 NLRB 924 (1988), and
Hotel & Restaurant Employees Local 274 (Warwick Cater-
ers), 282 NLRB 939 (1987), are factually inapposite and
clearly distinguishable. Those cases involved reasonable at-
tempts to clarify unit descriptions pursuant to applicable con-
tract language. Such efforts did not violate Section 8(b)(3)
because the fact findings requested of the arbitrators would
not have necessarily violated any statutory policy. A favor-
able arbitration ruling in the instant case would have resulted
only in consequences inimical to the Act, a situation which
could have been further exacerbated by the right of the
Union under the contract to enforce such arbitration award
by nonjudicial self-help. See Sheet Metal Workers Local 48
v. Hardy, 332 F.2d 682, 686 (5th Cir. 1964). Unlike those
cases, the instant arbitration required consideration of a ques-
tion of law, not merely a factual determination, that could
only be decided by resort to the statute and the body of case
law developed under Section 8(b)(4) and Section 8(e).
Arbitrators normally do not consider public policy, nor are
they particularly expert in such matters, but rather confine
their consideration to their view of contractual language in
a given factual context. Permitting arbitration to proceed in
an 8(b)(4) setting, even to judicial confirmation, where the
same matter is alleged as a violation, can have irreparable
and economically damaging consequences of enormous mag-
nitude as was graphically illustrated in Maritime Union v.
Commerce Tankers, 457 F.2d 1127, 1131 (2d Cir. 1972), set-
ting aside enforcement of an arbitration award in violation of
Section 8(e) noting that the arbitrator failed to consider the
8(e) issues and also reversing the District Court’s refusal to
grant a temporary injunction under Section 10(one) barring
enforcement by the union of the hot cargo provision. See
also NLRB v. Maritime Union, 486 F.2d 907, 910 (2d Cir.
1973), enfg. Maritime Union (Commerce Tankers), 196
NLRB 1100 (1972), where the court details the unhappy
aftermath of an improvident arbitration award. The lesson to
be drawn I believe is that, at least in the context of a meri-
torious 8(b)(4) charge, it would be sheer folly to permit an
unreasonable arbitration for an illegal object to proceed to
enforcement at which time only ashes remain to be salvaged,
as was the situation in Commerce Tankers when Section 8(e)
was relied on to attack the effects of the improper arbitration
award. It well may be that the reservations expressed by the
courts in Emery, supra, and Boston Deliveries, supra, about
applying the restrictive standards of Bill Johnson’s, supra, to
a grievance and arbitration proceeding are ripe for consider-
ation, perhaps in this case, although I am of the view ex-
pressed above that even under those standards, Respondent’s
arbitration demand was unlawfully coercive.
Perhaps the most comprehensive recent discussion of the
issue is to be found in Longshoremen ILWU Local 7 (Geor-
gia-Pacific), 291 NLRB 89 (1988). While that case dealt
with arbitration as a form of coercion in the context of a ju-
risdictional dispute arising under Section 8(b)(4)(D), I glean
from the body of that decision a willingness to find a viola-
tion under the circumstances of the instant case. In Georgia-
Pacific the Board distinguished between time-in-lieu-of pay
grievances filed before, from those filed after, an award of
work made under Section 10(k). As to the former, the Board
found no violation of Section 8(b)(4)(ii)(D) but did find such
violation with respect to post 10(k) grievance filing ‘‘because
at that point the grievance filings lacked a reasonable basis
and reflected an improper motivation to undermine the
Board’s 10(k) award.’’ 291 NLRB at 92. See also Teamsters
Local 85, 224 NLRB 801 (1976). In distinguishing the two
situations the Board (291 NLRB at fn. 10) noted the Con-
gressional preference for private resolution of jurisdictional
disputes which underlies the statutory scheme and the inter-
play of Sections 8(b)(4)(D) and 10(k). Therefore, it found not
applicable to pre-10(k) situations those cases finding viola-
tions of Section 8(b)(4)(ii)(B) based on grievance filing, in-
cluding Emery, supra, and AGC of California v. NLRB, 514
F.2d 433 (9th Cir. 1975). The warranted inference is that
noncompliance with post 10(k) awards implies the same kind
of illegal objective (or improper and unreasonable one) as is
present in an 8(b)(4)(B) case where object is determined
without resort to any prior proceeding.4 In such situation, the
dispute is not contractual but rather statutory, and arbitration
can not be classified as an arguably reasonable method of
resolution. The clear lesson is that arbitration, under certain
circumstances, constitutes a form of coercion interdicted by
Section 8(b)(4)(ii) and that Section 8(b)(4)(B) reflects a Con-
gressional policy, in tandem with Section 8(e), to prohibit
parties from voluntarily arriving at a cease doing business
403SERVICE EMPLOYEES LOCAL 32B-32J (NEVINS REALTY)
5 The Board concluded that it did not have to consider the work
preservation issues because the means used to enforce a contract not
violative of Sec. 8(e) as applied—only money damages were sought
in arbitration—could not be considered coercive under Sec.
8(b)(4)(ii).
object. This reflects a policy poles apart from one which en-
courages parties to voluntarily resolve jurisdictional awards
or even unit questions (cf. Ida Cal, supra, and Warwick Ca-
terers, supra).
Indeed, in Georgia-Pacific, 291 NLRB at 93 fn. 11, Chair-
man Stephens considered it an open question (now before us)
as to whether or not arbitration before the 10(k) awards
might not constitute a violation of Section 8(b)(4)(B) because
of the arguable cease doing business object indirectly present
in filing grievances for a monetary penalty. The Chairman
reasoned that in order to avoid such penalty the employer
would be limited to doing business only with contractors
who employ union members to do the disputed work, a cir-
cumstance almost identical to the instant case. A fortiori, a
grievance which directly seeks to accomplish this forbidden
object, violates the Congressional intent underlying Section
8(b)(4)(B), and harmonizes that section of the Act with Sec-
tion 8(e). A contrary result would create an unacceptable ten-
sion between those two sections. The full Board panel, id.
at fn. 12, joined Chairman Stephens in noting that grievances
which are not arguably meritorious, e.g., post Section 10(k)
and those where the Board can make such determination as
in an 8(b)(4)(B) case, could be unlawful.
It also is significant that Chairman Stephens found support
for his views in the Ninth Circuit opinion in AGC of Califor-
nia, supra. In that case the court reversed the Board’s hold-
ing (207 NLRB 698) that a grievance for limited monetary
damages against a neutral employer was not coercive be-
cause the contract as applied did not violate Section 8(e). Al-
though that Board decision is factually distinguishable from
the instant case and therefore not binding here, the court dis-
cussion does offer an analytical approach very much support-
ing a violation in this matter. Also, as noted by Chairman
Stephens, that Board case was decided before the Supreme
Court decision in Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731, implying that the precedential value of the Board
decision is questionable in any event. The Ninth Circuit
traced the history of work preservation and right of control
doctrines to conclude that an employer who installed sinks
manufactured with certain prefabricated piping work claimed
by his union was a neutral, and that by seeking pay, through
arbitration, its members supposedly would have earned had
they installed the piping, the union did engage in 8(b)(4)(ii)
conduct.
Having done the analysis the Board declined to under-
take,5 and having concluded, contrary to the Board, that an
object of the grievances were secondary and the clause as ap-
plied therefore violated Section 8(e), there was no reasonable
basis for not finding arbitration in furtherance of such ob-
jects, unlawfully coercive. AGC of California 514 F.2d at
438–439. Citing well-established authority that ‘‘coerce’’ in
Section 8(b)(4)(ii) includes ‘‘any form of economic pressure
of a compelling or restraining nature’’ it required no great
leap of logic to bring within that definition arbitration, even
for money damages equal to lost pay. ‘‘The desired effect’’
the court noted, was to pressure the neutral employer ‘‘to
pressure others to change their business practices.’’ Ibid. In
my judgment this reasoning applies to the case at hand
where, we will recall, the Respondent through pressure on
Nevins sought not only backpay for work its members pre-
sumably would have done had Golden not been awarded the
cleaning contract, but a collective-bargaining agreement with
Golden, as well. And, of overriding importance, Respondent
sought an arbitration award requiring that Nevins cease doing
business with Golden thereby effectively imposing on Nevins
a provision, which if written by the parties, would have vio-
lated Section 8(e). In accordance with the foregoing discus-
sion and mindful ‘‘that the Act’s language should be con-
strued broadly when necessary to give effect to its spirit,’’
Teamsters Local 812 (Canada Dry Distributors), 302 NLRB
258 (1991), Respondent’s demand for arbitration violated
Section 8(b)(4)(ii)(B).
CONCLUSIONS OF LAW
1. Nevins Realty Corp. (Nevins) and Golden Mark Mainte-
nance, Ltd. (Golden) are persons and employers engaged in
commerce and in an industry affecting commerce within the
meaning of Sections 2(1), (2), (6), and (7) and 8(b)(4)(ii)(B)
of the Act.
2. New York State and New York City and their various
agencies, including New York State Office of General Serv-
ices, Department of Motor Vehicles, and the Division of Pa-
role and New York City General Services Administration
and Human Resources Administration are persons engaged in
commerce and in an industry affecting commerce within the
meaning of Sections 2(1), (6), and (7) and 8(b)(4)(ii)(B) of
the Act.
3. Local 32B-32J, Service Employees International Union,
AFL–CIO (Respondent) is a labor organization within the
meaning of Section 2(5) of the Act.
4. By resorting to arbitration against Nevins where an ob-
ject thereof is to force or require Nevins to cease doing busi-
ness with Golden, New York State, New York City, and
other persons, Respondent has threatened, coerced, and re-
strained Nevins in violation of Section 8(b)(4)(ii)(B), which
conduct and activity affects commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section
8(b)(4)(ii)(B) of the Act, I shall recommend that it cease and
desist therefrom as well as take certain affirmative action de-
signed to effectuate the purposes of the Act. Respondent
shall be required to withdraw the arbitration demand giving
rise to this case and reimburse Nevins for all reasonable ex-
penses and legal fees, with interest, incurred in defending
against the arbitration demand, see Rite Aid Corp., 305
NLRB 832–835 fn. 10 (1991). Interest shall be computed in
the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Inasmuch as the violation stems from the policy of the
Union to interpret and apply its industrywide collective-bar-
gaining agreement in a consistent and uniform manner
throughout the industry and in light of the similar action
against Nevins at an earlier time, I shall recommend a broad
order protecting parties to the union contract in addition to
Nevins.
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Local 32B-32J, Service Employees Inter-
national Union, AFL–CIO, Brooklyn, New York, its officers,
agents, and representatives, shall
1. Cease and desist from seeking to enforce or apply,
through arbitration, any collective-bargaining agreement with
Nevins Realty Corp., or any other person having an agree-
ment with it who is engaged in commerce or in an industry
affecting commerce, where an object thereof is to force or
require Nevins, or any such other person, to cease doing
business with Golden Mark Maintenance, Ltd., the State of
New York, the city of New York or any other person.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw the demand for arbitration filed against Nev-
ins on June 5, 1991.
(b) Reimburse Nevins for all reasonable expenses and
legal fees with interest incurred in defending against the arbi-
tration demand.
(c) Post at its business office copies of the attached notice
marked ‘‘Appendix.’’7 Copies of the notice, on forms pro-
vided by the Regional Director for Region 29, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(d) Furnish the Regional Director for Region 29 signed
copies of such notice for posting by Nevins, if willing, at its
premises.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT seek to enforce or apply, through arbitra-
tion, any collective-bargaining agreement with Nevins Realty
Corp., or any other person having an agreement with us who
is engaged in commerce or in an industry affecting com-
merce, where an object thereof is to force or require Nevins,
or any such other person, to cease doing business with Gold-
en Mark Maintenance, Ltd., the State of New York, the City
of New York, or any other person.
WE WILL withdraw the demand for arbitration we filed
against Nevins on June 5, 1991, and reimburse Nevins for
all reasonable expenses and legal fees with interest incurred
in defending against the arbitration demand.
LOCAL 32B-32J, SERVICE EMPLOYEES INTER-
NATIONAL UNION, AFL–CIO