Service Employees Local 32B-32J (Pratt Towers)

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 317 (N.L.R.B. 2001)

SERVICE EMPLOYEES LOCAL 32B-32J (PRATT TOWERS) 317
Local 32B-32J, Service Employees International Un­
ion, AFL–CIO and Pratt Towers, Inc. Case 29–
CC–1285
December 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On May 16, 2000, Administrative Law Judge Jesse
Kleiman issued the attached decision and on May 26,
2000, he issued an errata to his decision. The Charging
Party (also referred to as Pratt), filed exceptions and a
supporting brief, and the Respondent (also referred to as
the Union), filed cross-exceptions with a brief in support
and in answer to the exceptions. The Charging Party
filed a letter brief in answer to the cross-exceptions.
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 rulings, find­
ings,1 and conclusions only to the extent consistent with
this Decision and Order.
This case arises in the context of the Parties’ unsuc­
cessful negotiations for an initial contract and an ensuing
strike. The complaint alleges that the Union’s contract
proposal contained a picket line clause prohibited by
Section 8(e) of the Act, that the Union engaged in a
strike in order to force or require Pratt to enter into an
agreement containing that clause prohibited by Section
8(e), and that therefore the strike violated Section
8(b)(4)(ii) and (A). The judge found that the picket line
clause was prohibited by Section 8(e). He nevertheless
recommended dismissal of the Section 8(b)(4)(ii) and
(A) allegation because he found the General Counsel
failed to prove that an object of the strike was to force or
require Pratt to enter into an agreement containing the
picket-line clause.
For the reasons the judge gave, we agree that the
picket-line clause was prohibited by Section 8(e). Unlike
the judge, however, we find, based on established Board
precedent, that an object of the strike was to force or re-
quire Pratt to enter into a contract containing the picket-
line clause, and that therefore the Respondent violated
Section 8(b)(4)(ii) and (A).
1 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
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.
I. FACTUAL BACKGROUND
On April 21, 1998,2 the Board certified the Union as
the exclusive collective-bargaining representative of full-
time and regular part-time building service employees
employed by Pratt. The Union and Pratt subsequently
met on four occasions in an unsuccessful attempt to ne­
gotiate a collective-bargaining agreement.
At the first meeting on August 26, Union Representa­
tive Ira Sturm presented Pratt with alternative contract
proposals. Pratt, with some reluctance, selected one of
the proposals (called the Independent Agreement), as the
starting point for negotiations. That proposal contained
the following picket-line clause:
Article IV, Section 5
No employee covered by this agreement should be re­
quired by the Employer to pass picket lines established
by any Local of the Service Employees International
Union in an authorized strike.
During the four bargaining sessions, the parties agreed to
various changes in the Independent Agreement, but dis­
agreed as to other provisions. The parties did not discuss
the picket-line clause during any of the bargaining sessions.
At the end of the final bargaining session on January 7,
1999, the Union stated that, if Pratt did not accept the
proposal then on the bargaining table, the Union would
strike. It is undisputed that the Union’s proposed con-
tract included the picket-line clause.
After Pratt refused to sign the proposed contract, the
Union struck on February 22, 1999. Union Business
Agent Daniel Gross testified that an object of the strike
was to get Pratt to sign a collective-bargaining agree­
ment. During the strike, the strikers informed the Union
that they wanted to return to work. Gross replied that
“he would prefer [the strikers] to stay out for a little
longer because we would have a better chance of getting
a contract signed.”
II. THE JUDGE’S DECISION
As stated above, although the judge found that the
picket line clause in the Independent Agreement was
prohibited by Section 8(e), he nevertheless concluded
that the General Counsel failed to prove a violation of
Section 8(b)(4)(ii) and (A).3 The judge reasoned as fol-
2 All dates refer to 1998 unless otherwise specified.
3 Sec. 8(b)(4)(ii) and (A) provides in relevant part as follows:
(b) It shall be an unfair labor practice for a labor organization or its
agents—
(4) . . . (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:
337 NLRB No. 44
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lows. The parties knew that the Independent Agreement
contained the picket-line clause, but this clause was
never a topic of discussion or controversy during the
negotiations. Rather, the parties disagreed over other
contract terms, and it was those disagreements that pro­
voked the strike. Therefore, the General Counsel failed
to prove that an object of the strike was to compel Pratt
to agree to the picket-line clause. The judge cited Long­
shoremen ILA Local 1418 (New Orleans Steamship
Assn.) , 235 NLRB 161, 169 (1978), and ABC Outdoor
Advertising, Inc., 169 NLRB 113, 116 (1968), as support
for his decision.
III. ANALYSIS AND CONCLUSIONS
In its exceptions, the Charging Party argues, inter alia,
that the cases the judge cited are not apposite and that
Board precedent actually supports its position that the
Union violated Section 8(b)(4)(ii) and (A). As discussed
below, we agree with the Charging Party.
Two decisions upon which the judge relied, New Or-
leans Steamship Ass., and ABC Outdoor Advertising are
clearly distinguishable from this case. In New Orleans
Steamship Ass., the Board affirmed the decision of the
administrative law judge that a violation of Section
8(b)(4)(ii) and (A) requires evidence that an employer
was coerceed into entering into an agreement prohibited
by Section 8(e). The Board concluded in agreement with
the judge that the union had not violated Section
8(b)(4)(ii) and (A), even though the union and an em­
ployer association had entered into an agreement prohib­
ited by Section 8(e), because the parties had entered into
the agreement voluntarily. 235 NLRB at 169. There-
fore, the required element of coercion was absent. Here,
by contrast, it is undisputed that the Union engaged in a
strike to obtain an agreement. Further, it is well estab­
lished that a strike constitutes “coercion” within the
meaning of the statute. Ets-Hokin Corp ., 154 NLRB
839, 842 (1965), enfd. 405 F.2d 159 (9th Cir. 1968), cert.
denied 395 U.S. 921 (1969). At issue in ABC Outdoor
Advertising, was whether a respondent discharged an
employee in violation of Section 8(a)(3). The Board
affirmed an administrative law judge’s finding of the
violation and the judge’s rejection of the respondent’s
argument that the discharge was lawful because the em­
ployee participated in an illegal strike to compel the re­
spondent to enter into an agreement prohibited by Sec­
tion 8(e). As found by the judge, although the union had
at one point in bargaining proposed a contract provision
prohibited by Section 8(e), the union “abandoned [that
provision] entirely” and replaced it with a lawful provi­
(A) forcing or requiring any employer . . . to enter into any
agreement which is prohibited by Section 8(e).
sion before the strike began. ABC Outdoor Advertising,
169 NLRB at 116. In this case, however, the Union
never changed its position on the unlawful picket line
clause.
There is no precedential support, then, for the judge’s
finding that the Union’s strike did not have as an object
forcing or requiring Pratt to enter into an agreement pro-
scribed by Section 8(e). Teamsters Local 559 (Anopol­
sky & Son.) , 145 NLRB 722 (1963), meanwhile, strongly
supports a contrary result.
In Anopolsky, at the parties’ second bargaining session,
the employer questioned whether Section 8(e) prohibited
a picket line clause in the union’s contract proposal, and
the union promised to check with its attorney about the
clause’s legality. The parties at no time thereafter dis­
cussed the clause. Eventually, the union struck to com­
pel the employer to sign the union’s contract proposal,
which included the picket line clause. Like the judge in
this case, the Anopolsky judge found that the picket line
clause was prohibited by Section 8(e), but he neverthe­
less recommended dismissal of the Section 8(b)(4)(ii)
and (A) allegation, using essentially the same reasoning
as the judge here. Pointing to disagreements during bar-
gaining about the union’s economic demands, the
Anopolsky judge found that the union’s insistence that
the employer sign the contract to avoid a strike referred
only to those demands. Because the parties had not re­
ferred to the illegal picket line clause after the employer
raised questions about it and the union promised to check
with its attorney, the judge held that the General Counsel
had failed to show that an object of the union’s strike
was to compel inclusion of the illegal clause in a contract
with the employer. Anopolsky, 145 NLRB at 729–730.
While the Anopolsky Board agreed with the judge that
the picket line clause was unlawful under Section 8(e), it
rejected the judge’s reasoning on the Section 8(b)(4)(ii)
and (A) issue and concluded that the strike violated the
Act. Emphasizing that the union insisted the employer
sign the contract and began the strike when the employer
refused to do so, the Board concluded that the strike was
intended to force the employer to sign the specific con-
tract the union had proposed, which, at all relevant times,
included the clause prohibited by Section 8(e). Anopol­
sky, 145 NLRB at 723–724.
The facts here are not materially distinguis hable.4 The
Union proposed an agreement containing a picket line
4 We are not persuaded by the judge’s attempt in fn. 20 of his deci­
sion to distinguish Musicians Local 16 (Bow & Arrow Manor), 206
NLRB 581, 590 (1973), enfd. 512 F.2d 991 (D.C. Cir. 1975). We find
that Bow & Arrow supports the finding of a Sec. 8(b)(4)(ii) and (A)
violation in the instant case. The union in Bow and Arrowengaged in a
strike in an effort to force the employer to sign an agreement that con-
SERVICE EMPLOYEES LOCAL 32B-32J (PRATT TOWERS) 319
clause prohibited by Section 8(e). The Union insisted
that Pratt sign the contract or else the Union would
strike. When Pratt refused to sign the contract, the Union
began a strike. The strike was to compel Pratt to sign a
contract, which, at all relevant times, included the clause
prohibited by Section 8(e). Accordingly, we find that the
Union’s strike, which began on February 22, 1999, had
as an object forcing or requiring Pratt to enter into an
agreement proscribed by Section 8(e), and that such con-
duct violated Section 8(b)(4)(ii)(A) of the Act.5
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s conclusion
of law 3.
“3. The picket-line clause, article IV, section 5 of the
Independent Agreement is violative of Section 8(e) of the
Act.”
2. Substitute the following for the judge’s conclusion
of law 4:
“4. The Respondent did not violate Section 8(e) of the
Act because the parties did not enter into an agreement.”
3. Add the following for the judge’s conclusion of law
5.
“5. The Respondent, Local 32B-32J, violated Section
8(b)(4)(ii) and (A) of the Act by engaging in a strike that
had as an object forcing or requiring Pratt to enter into an
agreement prohibited by Section 8(e).”
ORDER
The National Labor Relations Board orders that the
Respondent, Local 32B-32J, Service Employees Interna­
tional Union, AFL–CIO, its officers, agents, and repre­
sentatives, shall
1. Cease and desist from
(a) Engaging in a strike or in any other way threaten­
ing, coercing, or restraining Pratt Towers, Inc., where an
object thereof is to force or require Pratt Towers, Inc., to
enter into any agreement prohibited by Section 8(e) of
the Act.
tained a picket line clause prohibited by Sec. 8(e). As here, the parties
in Bow & Arrow did not discuss the picket line clause during bargain­
ing. The Board, with court approval, concluded that the union violated
Sec. 8(b)(4)(ii) and (A).
5 Our decision is supported by other cases as well. See, e.g., Team­
sters Local 294 (Rexford Sand & Gravel Co.), 195 NLRB 378, 382
(1972) (union violated Sec. 8(b)(4)(ii) and (A) by threatening to picket
employer with an object of forcing employer to enter into union’s form
contract, which contained picket -line clause prohibited by Sec. 8(e);
parties had not discussed picket-line clause during negotiations); Team­
sters Local 445 (Edward L. Nezelek), 194 NLRB 579, 585 (1971) (un­
ion violated Sec. 8(b)(4)(ii) and (A) by picketing employer with an
object of forcing employer to enter into agreement containing picket-
line clause prohibited by 8(e); parties had not discussed picket-line
clause during negotiations), enfd. 473 F.2d 249 (2d Cir. 1973).
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 offices and meeting halls copies of the at­
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including 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.
(b) Sign and mail sufficient copies of the notice to the
Regional Director for posting by Pratt Towers, Inc., if
willing, at all places where notices to its employees are
customarily 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 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

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 engage in a strike or in any other way
threaten, coerce, or restrain Pratt Towers, Inc., where an
object thereof is to force or require Pratt Towers, Inc., to
enter into any agreement prohibited by Section 8(e) the
National Labor Relations Act.
LOCAL 32B-32J, SERVICE EMPLOYEES
INTERNATIONAL UNION, AFL–CIO
6 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 Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Amy S. Krieger, Esq., for the General Counsel.

Ira A. Sturm, Esq. (Raab, Sturm & Goldman, LLP), for the

Respondent Union.
Kevin J. McGill, Esq. and Jennifer M. Crook, Esq. (Clifton
Budd & De Maria, LLP), for the Employer.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. Upon the basis
of a charge filed by Pratt Towers, Inc. (the Employer or Pratt
Towers), on April 12, 1999, against Local 32B-32J, Service
Employees International Union, AFL–CIO (the Respondent
Union or Local 32B-32J), a complaint and notice of hearing
was issued on May 17, 1999, alleging that the Respondent Un­
ion had violated Section 8(b)(4)(ii) and (A) of the National
Labor Relations Act (the Act). By answer timely filed, the Re­
spondent Union denied the material allegations in the com­
plaint.
Inasmuch as consolidated Cases 29–CA–22657, 29–CA–
22660, and 29–CA–22666 (the CA cases), and Case 29–CC–
1285 (the instant or CC case), involved some of the same wit­
nesses and parties, by Order dated May 17, 1999, the CA cases
and the CC case were directed to be heard consecutively, with
the CC case to follow the trial of the CA cases. A trial was
held before me in Brooklyn, New York, in the CA cases from
July 15 through August 13, 1999, with the CC case then being
heard by me on August 16, 1999, after the conclusion of the
CA cases.1
Subsequent to the close of the CC case, the General Counsel,
the Employer, and Local 32B-32J filed briefs addressing the
issues in Case 29–CC–1285.2
On the entire record and the briefs of the parties, and on my
observation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Employer, a New York corporation, is engaged in the
operation of a 23-story, 326-unit residential cooperative apart-
1 At the hearing, counsel for the General Counsel in the CC case
moved to incorporate by reference, the record evidence in the CA cases
into the CC case record, and requested that one decision issue covering
both the CA cases and the CC case. There being no opposition I
granted the motion and request. Subsequent to the close of both the CA
cases and the CC case, new complaints issued in Cases 29–CA–20312,
and 29–CA–23137 involving Pratt Towers and Local 32B-32J. At the
request of the parties, these cases were assigned to me for trial. Since
Case 29–CC–1285 is a statutory priority case, upon notice to all parties
and without any objection being raised I have decided instead to issue a
separate decision in Case 29–CC–1285.
2 Subsequent to the close of the trial in this matter and submission of
briefs by all the parties, the Respondent Union filed a formal “Motion
to Dismiss Complaint” and a “Memorandum of Law” in this case alleg­
ing that the “General Counsel has failed to establish a prima facie viola­
tion of the Act under established Board law, even if all facts were read
in a light most favorable to the General Counsel’s theory.” Both the
General Counsel and the Employer filed replies in opposition to that
motion. By order dated March 24, 2000, I reserved decision on this
motion the merits of which will be considered in this decision.
ment building located at 333 Lafayette Avenue, Brooklyn, New
York, its principal office and place of business. During the past
year, the Employer, in the course and conduct of its business
operations derived gross revenue in excess of $500,000, and
purchased and received at its Brooklyn facility goods, supplies,
and materials valued in excess of $5000 directly from points
located outside the State of New York. The complaint alleges,
Local 32B-32J admits, and I find that the Employer is now, and
has been at all times material herein, an employer and a person
engaged in commerce and in an industry affecting commerce
within the meaning of Section 2(1), (2), (6), and (7) and Section
8(b)(4) of the Act.
II. THE LABOR ORGANIZATI ON INVOLVED
The complaint alleges, the parties admit, and I find that Lo­
cal 32B-32J, at all times material, has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that by engaging in a strike the object
of which was to force or require the Employer to enter into an
agreement with Local 32B-32J containing a picket line clause
prohibited by Section 8(e) of the Act, the Respondent violated
Section 8(b)(4)(ii) and (A) of the Act.
A. The Evidence
1. Background
Prior to April 21, 1998, the Employer’s building service em­
ployees were represented by Local 2, New York State Inde­
pendent Union of Building Service Employees and Factory
Workers (Local 2). Pursuant to a stipulated election agreement
an election by secret ballot was held on April 7, 1998, with
both Local 2 and Local 32B-32J on the ballot. A majority of
the ballots being cast in favor of Local 32B-32J, on April 21,
1998, the Respondent Union was certified as the exclusive
collective-bargaining representative of all full-time and regular
part-time building service employees employed by Pratt Tow­
ers, Inc., at 333 Lafayette Avenue, Brooklyn, New York, ex­
cluding guards and supervisors as defined in the Act.
Pratt Towers and Local 32B-32J met on four separate occa­
sions: August 26, September 24, October 27, 1998, and on
January 7, 1999, to negotiate a collective-bargaining agree­
ment. The Employer’s principal spokesman was Kevin McGill,
Esq.,3 and the Respondent Union’s chief negotiator and sole
participant at these bargaining sessions was Ira Sturm, Esq.4
3 At all the bargaining sessions McGill was accompanied by Eunice
Johnson the Employer’s on-site property manager, and a representative
from Pratt Towers’ board of directors. Valerie Brooks, president of the
board attended the August 26, 1998 meeting while the Board’s vice
president, John Porter, attended the other three meetings. McGill is an
experienced labor attorney with approximately 20 years’ experience
negotiating contracts, including a predecessor agreement to the 1997
Independent Agreement with Local 32B-32J.
4 Sturm is also an experienced labor negotiator with 20 years’ ex­
perience representing the Respondent Union in negotiations with vari­
ous Employer Associations and employers negotiating apartment house
contracts every 3 years since 1980, and about 14 or 15 Realty Advisory
Board (RAB) contracts every 2 years.
SERVICE EMPLOYEES LOCAL 32B-32J (PRATT TOWERS) 321
None of the unit employees attended or played any role in these
negotiations.
2. The August 26, 1998 meeting
The first negotiation meeting between the parties was held
on August 26, 1998. Present were Kevin McGill, Esq., Eunice
Johnson, and Co-op President Valerie Brooks for Pratt Towers,
and Ira Sturm, Esq., for Local 32B-32J. This being in the na­
ture of an introductory session, the parties set forth some of
their positions in generalities but did not engage in any substan­
tive bargaining or make any formal proposals. McGill briefly
described Pratt Towers as a residential apartment building of
low and middle income rentals subject to New York City’s
Mitchell Lama program. Sturm now explained to the Em­
ployer’s representatives the Real Estate Advisory Board’s con-
tract with Local 32B-32J, (the RAB contract), as well as the
Respondent Union’s form Independent Apartment House
Agreement of 1997 (the Independent Agreement). Sturm fur­
ther explained that the Real Estate Advisory Board is a mul­
tiemployer association which negotiates a master pattern
agreement containing wages and terms and conditions of em­
ployment on behalf of its members and does not permit any
change in the terms of the agreement. Sturm then explained
that the Independent Agreement drafted by Local 32B-32J, was
similar to the RAB contract except in certain areas like the
expiration language in the “Evergreen” clause and the “Reduc­
tion-in-Force” provision. There was some discussion about the
disparity between the wage rates in the RAB contract and the
employees’ present wage rate.
Sturm testified that as an “offer in lieu of negotiation” Local
32B-32J gave Pratt Towers the option of entering into either the
RAB contract, or the Independent Agreement. Although Sturm
testified that he gave the Employer a third option, “to bargain
an agreement from scratch” as was his standard procedure
when negotiating contracts, both McGill and Johnson testified
that Sturm never gave them such an option.5 McGill testified
5 McGill also testified that Pratt Towers, in fact, was never given the
option to bargain from scratch at any time during the entire negotiation
period. While McGill took no notes of this first meeting, Sturm did.
The record shows that no where in Sturm’s notes which he made con­
temporaneously during the negotiations, including the August meeting,
is there any reference to the phrase “bargain from scratch” as an option
given to the Employer during the negotiations between the parties.
Moreover, while the Union’s business agent Daniel Gross, testified that
he exhibited copies of both the RAB and the Independent Agreement to
Pratt Tower’s employees to show them what 32B-32J was offering the
Employer for them, he never testified that he told them that the Union
had also offered Pratt Towers the option to bargain from scratch, or any
words to this effect. Additionally, noting McGill’s constant protest,
throughout the negotiations, about what he referred to as “outrageous”
clauses in the Independent Agreement (i.e., the Evergreen Clause,
Contract Arbitrator Clause, Reduction-in-Force Clause, medical insur­
ance fund costs, etc.), it would seem improbable that Pratt Towers
would not consider to negotiate from scratch rather than the Independ­
ent Agreement, which McGill also felt created a financial hardship for
Pratt Towers, if such a choice had been offered by Sturm.
However, it should be noted that while I may disbelieve Sturm re­
garding this part of his testimony, I do not discredit all of his testimony,
given in the CC or the CA cases. A trier of fact is not required to ac­
cept the entirety of a witness’ testimony, but may believe some and not
that inasmuch as Pratt Towers could not afford the RAB con-
tract, the Employer’s only realistic option was to choose the
Independent Agreement as the starting point for negotiations.
McGill protested that the entire Independent Agreement cre­
ated a financial hardship for Pratt Towers. Sturm proposed that
Pratt Towers could have the option to negotiate wages or take
the wage increase in the Independent Agreement plus a $10
catchup until wages reached the industry rate. Medical costs
was an Employer concern since 32B-32J’s health plan costs
were 60 to 70 percent higher than the cost of its employees
previous coverage under Local 2’s plan. The parties were also
concerned that the employees had no medical coverage at pre-
sent, and this was also a topic of discussion. McGill suggested
using the American Arbitration Association (AAA), since the
Independent Agreement specifically provides for arbitration via
the Office of the Contract Arbitrator (OCA), and the Respon­
dent Union, and the RAB have exclusive authority jointly to
select the arbitrators thus effectively negating Pratt Towers
input in the choice of an arbitrator under its own collective-
bargaining contract. The Respondent Union rejected McGill's
proposal. Additionally, both McGill and Sturm indicated their
unhappiness with some of the arbitrators listed in both the form
RAB and Independent Agreement.
The Employer also expressed “great concern” over the re­
duction-in-force provision of the Independent Agreement
(RIF). Under this clause the Employer was required to obtain
written permission from the Respondent Union’s president
before it could reduce its staff size. Pratt Towers wanted the
flexibility to determine its staff needs and suggested that if staff
were reduced from eight to six employees, Pratt Towers might
be able to afford the contract. The parties adjourned with the
agreement to “consider the situation.”
3. The September 24, 1998 meeting
The second negotiation session took place on September 24,
1998. Attending this meeting were Kevin McGill, Eunice
Johnson, and Co-op Vice President John Porter for the Em­
ployer and Ira Sturm representing Local 32B-32J. The parties
discussed the economics of the contract. McGill again ex-
pressed great concern about the cost of Local 32B-32J’s medi­
cal plan as provided for in the Independent Agreement and
proposed to offset this by “attriting” one position and no wage
increase for the term of the agreement or payment into the pen­
sion and other union funds. Local 32B-32J rejected the Em­
ployer’s proposal.
Sturm proposed that the wage increase go into effect on
April 21, 1999 (the annual date of the Independent Agreement),
with a $10 catchup and that the Employer start payments into
all of what a witness says. Americare Pine Lodge Nursing, 325 NLRB
98 (1997); Brinkman Southeast, 261 NLRB 204 (1982); Giovanni’s,
259 NLRB 233 (1981); Maxwell’s Plum , 256 NLRB 211 (1981). As
Chief Judge Learned Hand stated in NLRB v. Universal Camera Corp.,
179 F.2d 749, 754 (2d Cir. 1950):
It is no reason for refusing to accept everything that a witness says,
because you do not believe all of it; nothing is more common in all
kinds of judicial decisions than to believe some and not all.
Moreover, the above would also be applicable to the testimony of
McGill and Johnson as will be discussed in other parts of this decision.
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union funds in November 1998. The Employer rejected
this as too expensive. Moreover, the parties discussed the re­
duction-in-force issue with the Employer wanting to fix its own
staffing needs. The Respondent Union took the position that
the unit, remain at eight not six employees. Sturm testified that
the Employer made no counterproposal regarding wages at this
meeting. The parties also discussed the arbitration clause. The
Employer proposed to select two arbitrators, Bernard Young
and Howard Edelman, from among the list of arbitrators in the
Independent Agreement. The Respondent Union did not re­
spond to this proposal at that time.
4. Pratt Towers’ October 8, 1998 letter
By letter dated October 8, 1998, from McGill to Sturm, Pratt
Towers set forth its proposal for a collective-bargaining agree­
ment indicating that the parties should “work from the standard
1997 apartment house agreement.” This letter continues:
There are numerous provisions in this agreement we would
like to negotiate out, but we recognize that if we were to take
a hard and fast position with so many of these items that we
will not conclude an agreement any time in 1998. Having
said that, we are unable to agree on the following provisions
of the apartment house agreement:
1. The wage scale.
2. The health plan contributions.
3. The annuity plan contributions.
4. The pension plan contributions.
5. The Office of the Contract Arbitrator.
6. The no reduction-in-force clause.
7. The “roll-over” or “evergreen” clause which ap­
pears to be camouflaged within in the sale and transfer
clause.
8. The union security clause may not be legal. We
have no objection to a legally sufficient Union security
clause.
9. The inclusion of security guards in the unit descrip­
tion.
Wages—We are prepared to offer the following: an
increase in base weekly wages of $20.00 for each classifi­
cation and for each of the three years of the contract. This
is basically the $15.00 increase recently negotiated in 1997
plus a $5.00 per week “catch-up.”
Health and Welfare Benefits—We are prepared to offer
an annual contribution of $3,500 which is the amount we
had been contributing to the Local 2 Welfare Fund. This
annual contribution would be for each of the three years of
the agreement.
Annuity Fund—We have no proposal for any contribu­
tions to the annuity fund.
Pension Fund—We offer an annual contribution of
$338.04 (@ 28.17 per month).
Contract Arbitrator—We propose Howard Edelman
and Elliot Shriftman to serve on a rotating basis.
Reduction-in-Force—Our proposal is for the deletion
of all language restricting the Employer’s right to reduce
staff, if necessary.
Term of the Contract—The contract term we propose
is three years from the execution date of the contract. We
do not agree that the contract will remain in full force and
effect notwithstanding the expiration date, as appears to be
the case in the evergreen clause contained in your sale and
transfer provisions.
Security Guards—delete the above-described proposal
is an attempt to harmonize our financial situation with the
expectations of our employees that they will be covered by
a relatively standard industry agreement. The financial
burdens contained in the 1997 apartment house agreement
are not something that we can accept in toto. Nonethe­
less, we have attempted to give our employees the numer­
ous protections and prerogatives [sic] contained in the In-
dependent Agreement. Naturally, we are willing to dis­
cuss this with the Union and to answer any of your ques­
tions or hopefully respond to any of your concerns.
Therefore, by this October 8 letter, Pratt Towers informed
the Respondent Union that while it did not like all of the provi­
sions in the Independent Agreement, it was amenable to accept­
ing all of the terms of the Independent Agreement except for
those major disputed items listed above in McGill’s October 8
letter. Moreover, the record demonstrates and the Employer
admitted that what McGill set forth in his October 8, 1998 letter
to the Respondent Union constituted the Employer’s offer to
Local 32B-32J. As McGill and Johnson both testified, Pratt
Towers’ proposal to the Respondent Union was the Independ­
ent Agreement with the exception of the nine enumerated items
listed above.6 However, no mention is made therein concerning
the Employers’ opposit ion to the picketing clause (art. IV, sec.
5), in the Independent Agreement.
5. The October 27, 1998 meeting
The third negotiation session between the Parties with the
same respective representatives occurred on October 27, 1998.
McGill again raised the issue of the expense of the Respondent
Union’s medical plan as a major problem for Pratt Towers.
McGill proposed that the Employer be permitted to participate
in the “Suburban Plan,” a medical plan provided for in Local
32B-32J contracts with Long Island and New Jersey employers.
The “Suburban Plan” costs less than the medical plan in the
Independent Agreement. Local 32B-32J rejected this proposal
because it would raise too many problems.
Pursuant to McGill’s October 8, 1998 letter to Sturm, the
Respondent Union agreed to use the standard Independent
Agreement, with certain changes discussed by the Parties.
Local 32B-32J proposed a wage of $15 and a $10 catchup ef­
fective November 1, 1998, with standard increases “up to
scale;” an effective date of November 1, 1998, for payment to
“funds and everything else;” and exclusion of security guards
from the unit. The Parties agreed that Howard Edelman would
6 While McGill admitted on numerous occasions that Pratt Towers
proposed and agreed to all provisions of the Independent Agreement
except for the nine enumerated items in the October 8 letter, McGill
contradicted this testimony by also testifying that Pratt Towers did not
agree to any of the specific items in the Independent Agreement that
were not discussed. I do not credit McGill’s contradictory testimony
concerning this. See fn. 5 supra.
SERVICE EMPLOYEES LOCAL 32B-32J (PRATT TOWERS) 323
serve as contract arbitrator and discussed how to pay for his
fees. The Employer and the Respondent Union also discussed
the “Reduction-in-Force” and the “Evergreen” clause issues.
Local 32B-32J refused to agree to the Employer’s proposal to
“change” or to delete these clauses from the contract. McGill
testified that Sturm stated at the October meeting that there
were only two variables that would be permitted from the Inde­
pendent Agreement—retroactivity and wage increases.7
6. The January 7, 1999 meeting
The parties same representatives met for a fourth and last
negotiation session on January 7, 1999. By this time Pratt
Towers and Local 32B-32J had agreed that the security guards
would be excluded from the contract’s coverage with the par-
ties continuing to negotiate from the Independent Agreement.
Sturm presented a wage proposal of a $15 increase to start on
November 1, 1998, with contract increases and a $10 catchup
beginning on April 21, 1999. Local 32B-32J proposed that the
Employer contribute to the Union’s funds effective January 1,
1999, and agreed to provide a separate rider for the building
superintendent with a different expiration date from the Inde­
pendent Agreement. Moreover, the Respondent Union rejected
Pratt Towers proposals to eliminate the Evergreen Clause, to
enter into a 3-year contract, change or eliminate the reduction-
in-force language, change the arbitrator proposal, and join the
Union’s “Suburban” medical plan. McGill stated that the Em­
ployer could, reluctantly, live with the OCA language in the
contract.
Thus, by the end of this meeting Sturm had proposed the In-
dependent Agreement language with modifications. McGill
asked Sturm, what, if anything, would occur if Pratt Towers did
not accept the proposed agreement, and Sturm replied that the
Respondent Union would have no alternative but to strike the
building. It is conceded by both parties to the negotiations that
certain clauses of the Independent Agreement were never dis­
cussed during the negotiations including article IV, section 5
(“the picket-line clause”).
According to the testimony of Pratt Towers’ witnesses,
Sturm now told McGill that he wanted the Employer to sign the
contract that evening. McGill advised Sturm that he was
obliged to take back the Respondent Union’s last offer to Pratt
Towers’ board of directors for its consideration. This was the
first that Sturm had been made aware that Pratt Towers’ repre­
sentatives at the negotiations had no authority to agree to a
contract. McGill testified that he believed Sturm responded to
this comment, “Look, its on the table tonight and there’s no
guaranty that if you accept it after tonight that it will be there
any more.” McGill testified:
This was towards the end of the meeting and [Sturm] said,
Look, the only thing that we can do for you is on the wage in-
creases and the implementation dates, and if you’re not pre-
7 While Sturm testified that McGill actually made this statement,
both Sturm’s notes of this bargaining session states, “U only variables
from U perspective is amount of increase and retroactivity,” and
McGill’s notes reflect “Ira says, there are basically two variable—
retroactivity—wage increase, amount of it” and that these were the
“only variables.”
pared to accept that as is, we will have no other choice but to
strike the building.8
McGill also testified that Sturm had reiterated that Pratt Towers
had to take the Independent Agreement “as is” that evening
more than once. However McGill also admitted that he knew
that “as is” meant the Independent Agreement with changes
that the parties had discussed. McGill asked Sturm if he could
give Pratt Towers some notice before a strike would occur, but
Sturm replied no, why should he do that? McGill told Sturm
that he would try, and call him the following day and the meet­
ing then ended.
Johnson testified that Sturm had said, “I would like to have
[Pratt Towers] sign this agreement tonight.” She also testified
that she recalled Sturm saying that Pratt Towers had to sign the
agreement “as is.” However, Johnson admitted that at the con­
clusion of the January 7 negotiation session the Respondent
Union’s proposal included the Independent Agreement with
changes concerning wages, medical plan, reduction-in-force,
and effective dates of the agreement.
Sturm’s testimony directly contradicts that of Pratt Towers’
witnesses. Sturm testified that he didn’t think he said that Pratt
Towers had to sign an agreement that night, but instead had
said, “[T]his is a deal that’s on the table tonight, you can either
accept it or reject it, but if you turn it down I’m not guarantee­
ing that this deal will be on the table tomorrow.” He also may
have said, “Well, the offer may not be available after tonight . .
. and if you make another offer there’s no guarantee the Union
will accept it.” Additionally, Sturm denied that he had told
McGill at the January 7 negotiation meeting that Pratt Towers
had to sign the contract “as is.”9
In sum, the Respondent Union’s last offer was the Independ­
ent Agreement with the following changes: the effective date
of the wage increases be moved to April 21, 1999, a wage
catchup period, a separate superintendent rider allowing the
Employer more flexibility, a different expiration date, and an
effective date of January 1, 1999, for contributions to the pen­
sion and welfare funds. However, the parties remained ada­
mant as to their other positions, the Employer regarding the
items contained in its October 8, 1998 letter, and the Respon­
dent Union as to those unresolved issues in the Independent
Agreement vis-à-vis this letter. The parties failed to reach a
final agreement, and both Sturm and McGill testified that after
the January 7 bargaining session, they believed that the parties
had reached an impasse in negotiations.10
The record evidence clearly shows that the Employer on Oc­
tober 8, 1998, proposed to the Respondent Union the Independ-
8 In his notes of this bargaining session McGill reflected, “Ira says
we have to take the Ind K as is or he will strike the building. Ask for
notice, Ira says he will not give notice.”
9 Interestingly, in his notes in reference to the Respondent Union’s
response to Pratt Towers’ proposal to reduce the maintenance unit from
eight to six, Sturm noted “Unit stays as is.”
10 The evidence shows that on January 7, 1999, the parties had
reached impasse on wages, medical, and other benefits funds, contract
arbitrator issue, reduction-in-force language, the Evergreen clause, and
the union-security clause whose legality McGill questioned, while other
contract clauses, such as the picket-line clause, were never discussed or
challenged.
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent Agreement, with nine modifications thereof, and thus
agreed to all terms in the Independent Agreement except for the
nine items listed in its October 8 letter. It is undisputed that the
Employer nor the Respondent Union raised the subject of
picket lines and the picket-line clause (art. IV, sec. 5), in the
Independent Agreement nor was it discussed by the parties at
any time during the entire course of the contract negotiations.
McGill admitted that had the parties reached agreement on the
nine items listed in his October 8 letter to Sturm, the agreement
would have included the picketing clause. Moreover, Johnson
testified that other than wages, benefits, the arbitrator, and the
length of the contract, Pratt Towers was aware of no other is-
sues that might have caused Local 32B-32J to go out on strike.
7. The strike
On February 22, 1999, Pratt Towers’ employees went out on
strike at the insistence of Local 32B-32J. Sturm testified that it
was not an object of the strike to obtain the picketing clause in
the collective-bargaining agreement between the parties. Sturm
stated that the purpose of the strike was to achieve agreement
on issues that were in dispute, such as the effective date of the
contract, wage rates, and the date of implementation of any
wage increases, whether the Employer would contribute to the
Union’s funds and when, the length of the contract, whether the
contract would include the Evergreen clause, Reduction-in-
force language, whether the length of the contract would coin­
cide with the Independent Agreement or be for 3 years as the
Employer proposed, and whether the arbitrator would be How­
ard Edelman or OCA.11
Moreover, Union Business Agent Daniel Gross testified that
he had informed the unit employees that while the Independent
Agreement would be the basis for any settlement, Local 32B-
32J had sanctioned a strike because the parties had reached
impasse. Gross admitted that an object of the strike was to get
Pratt Towers to sign a collective-bargaining contract. In fact
when the striking employees indicated that they would like to
return to work sometime after the commencement of the strike,
Gross testified that he told them, “Yes, I would’ve liked you to
have stayed out longer because it probably would’ve helped us
get the contract signed, but its your decision, and I, you know,
you have to make your own decision on it.”12
8. Credibility
As to the credibility of the witnesses in this case, after care-
fully considering the record evidence, I have based my findings
on my observation of the demeanor of the witnesses, the weight
of the respective evidence, established and admitted facts, in­
herent probabilities, and reasonable inferences, which may be
drawn from the record as a whole. Gold Standard Enterprises,
234 NLRB 618 (1978); V & W Castings, 231 NLRB 912
(1977); Northridge Knitting Mills , 223 NLRB 230 (1976).
11 McGill agreed that it was “essentially correct” that after October
8, 1998, there was no dispute raised as to any of the items or any of the
terms contained in the 1997 Independent Apartment House Agreement
except for the nine items that were listed in the October 8 letter.
12 Striking employee Theorgy Brailsford testified that upon advising
Gross that he wanted to return to work from the strike, Gross said,
“[H]e would prefer us to stay out for a little longer because we would
have a better chance of ge tting a contract signed.”
Both the General Counsel and Pratt Towers assert that the
Respondent Union’s main witness, Ira Sturm, was not a reliable
witness because of his inconsistent, evasive and shifting testi­
mony, and should be discredited. The Respondent Union main­
tains, in effect, the same about the General Counsel’s key wit­
nesses, Kevin McGill and Eunice Johnson. Interestingly
enough, as the record shows, both the General Counsel and
Pratt Towers on the one hand and the Respondent Union on the
other, have some merit to their allegations. Therefore as the
occasion arises, I will discuss the issue of witness credibility as
it effects the circumstances presented in the light of any addi­
tional evidence such as documentary or other reliable evidence.
B. Analysis and Conclusions
The complaint alleges that the Respondent Union violated
Section 8(b)(4)(ii) and (A), herein 8(b)(4)(A), of the Act, by
engaging in a strike the object of which was to force or require
Pratt Towers, Inc., to enter into a collective-bargaining agree­
ment with it containing a picket line clause prohibited by Sec­
tion 8(e) of the Act.
A strike by a union to compel an employer to agree to a pro-
vision in a collective-bargaining agreement that would violate
Section 8(e) of the Act constitutes a violation of Section
8(b)(4)(A) of the Act.13 Section 8(e) of the Act provides, in
pertinent part, that
It shall be an unfair labor practice for any labor organization
and any employer to enter into any contract or agreement, ex-
press or implied, whereby such employer ceases or refrains or
agrees to cease or refrain from . . . doing business with any
other person, and any contract or agreement entered into . . .
containing such an agreement shall be to such extent unen­
forceable and void . . . .
Section 8(b)(4)(A) makes it an unfair labor practice for a la­
bor organization to induce or encourage employees to engage in
a strike or to threaten, coerce or restrain any person where an
object thereof is:
forcing or requiring any employer or self-employed person to
join any labor organization or to enter into any agreement
which is prohibited by section 8(e).
It is undisputed that the Independent Agreement which Local
32B-32J asked Pratt Towers to sign at the January 7, 1999 ne­
gotiations session contained the following clause, article IV,
section 5, herein referred to as the “picket line clause.” This
clause reads:
No employee covered by this agreement should be required
by the Employer to pass picket lines established by any Local
of the Service Employees International Union in an author­
ized strike.
Moreover, it is further undisputed that while Sturm and McGill
were familiar with the contents of the Independent Agreement,
neither the subject of the picket-line clause, nor of any picket
line clause at all, was discussed, objected to, or referred to at
13 Operating Engineers Local 520 (Massman Construction), 327
NLRB 1 (1999); Iron Workers 751 (Hoffman Construction), 292 NLRB
562 (1989), enfd. 913 F.2d 1470 (9th Cir. 1990).
SERVICE EMPLOYEES LOCAL 32B-32J (PRATT TOWERS) 325
any time during the negotiations or by correspondence between
the parties.
The Board has held picket-line clauses similar to that in arti­
cle IV, section 5 of the Independent Agreement, in violation of
Section 8(e) of the Act. As Administrative Law Judge Gordon
J. Myatt stated in Teamsters Local 467 (Mike Sullivan & Assn.),
265 NLRB 1679, 1681 (1982), and affirmed by the Board:
The vice of the language of the clause . . . is that it pro­
tects refusals to cross any picket line, whether primary or
secondary, and, as such, is broad enough to apply to
unlawful secondary picketing. It is irrelevant whether the
Union only intended for the clause to apply to lawful pri­
mary picketing or whether . . . there had been no determi­
nation regarding the type of picketing engaged in at the
jobsite. What is relevant is whether the “picket line”
clause on its face is limited to lawful primary activity or
whether its terms are so broad that it applies to unlawful
secondary picketing as well. In the latter instance, the
clause perforce violates the strictures of Section 8(e).[14]
I find that the language of the clause in the instant case
is overly broad in that it makes no distinction between
lawful and unlawful picketing. It grants an employee the
right to refuse to cross a picket line without any limitation
as to whether the picketing is primary or secondary. The
clause also precludes the employer from discharging or
disciplining an employee for exercising this right of re­
fusal. It follows, therefore, that the clause can be applied
to unlawful secondary picketing without fear of any sanc­
tions being imposed by the employer. Thus, on its face,
the clause is proscribed by Section 8(e) unless it falls
within the “construction industry proviso” relating to “on-
site work.”
In Teamsters, Local 467, supra, the clause in question, article
II, section 1 of the agreement provided:
Any employee may be discharged or disciplined for incompe­
tency, inefficiency, insubordination, or any other good cause;
provided, however, that no employee shall be discharged or
discriminated against for upholding Union principles, includ­
ing his refusal to cross a picket line (provided the Union has
previously notified the employer of such picket line) . . . .
In Laborers Local 300 (Jones & Jones), 154 NLRB 1744
(1965), the picket line clause stated:
IX . . . . It is further agreed that no employee shall be required
to cross any picket line or enter any premises at which there is
a picket line authorized or approved by the [union] . . . . The
Employer . . . agrees that he will not assign or require any
employee covered by this Agreement to perform any work or
enter any premises under any of the circumstances above de-
scribed . . . .
The Board held that since the record in the case supported a
finding that a “further object” of the union’s picketing was to
14 Bricklayers Local 2 (Gunnar I. Johnson & Son), 224 NLRB 1021
(1976), enfd. 562 F.2d 775 (D.C. Cir. 1977); Operating Engineers
Local 12 (Robert E. Fulton), 220 NLRB 530 (1975); Teamsters Local
445 (Edward L. Nezelek), 194 NLRB 579 (1971).
force the Employer to agree to this “picket line” provision, and
the picket-line clause was broad enough to apply to secondary
picketing having no connection with disputes concerning job
site subcontracting, it was prohibited by Section 8(e), and thus,
the picketing by the union to compel the employer to sign a
contract containing such a clause violated Section 8(b)(4)(A) of
the Act.
Moreover, in Painters Local 823 (Independent Painting
Contractors of New Mexico), 161 NLRB 620 (1966), the
picket-line clause read:
Section 5, paragraph 3-a. The employees covered hereby re-
serve the right to respect any picket line established by any la­
bor organization, and it shall not be a violation of this agree­
ment on the employees’ part to refuse to work behind a picket
line.
The Board concluded that since this provision was in violation
of Section 8(e), the union’s threats of economic action to force
the employer to sign an agreement containing such a clause
violated Section 8(b)(4)(A) of the Act.
Similarly, in Teamsters Local 294 (Rexford Sand & Gravel
Co.), 195 NLRB 378 (1972), a picket-line clause reading: “It
shall not be a violation of this Agreement and it shall not be a
cause for discharge or disciplinary action in the event an em­
ployee refuses to go through any picket line,” was found to
contravene Section 8(e) of the Act since in “immunizing from
discipline or discharge ‘an employee (who) refuses to go
through any picket line,’ would support secondary action.”15
The Board found that because this language could support sec­
ondary action, the union, in threatening to picket the employer,
had the object of forcing the employer to enter into a contract
containing this clause, in violation of Section 8(b)(4)(A) of the
Act.
Again, in Teamsters Local 445 (Edward L. Nezelek, Inc.),
194 NLRB 579, 585 (1971), the Board affirmed an administra­
tive law judges’ finding that a picket-line clause stating: “The
Employer shall not discharge or suspend or otherwise discipline
any Employee for refusing to cross a picket line, and such re­
fusal shall not be considered a violation of this Agreement,”
was broad enough to apply to secondary picketing having no
connection with disputes concerning jobsite subcontracting, and
to that extent was prohibited by Section 8(e) of the Act. By
picketing the employer to sign an agreement containing the
picket line clause and other clauses violative of Section 8(e),
the union violated Section 8(b)(4)(A) of the Act.
And in Bricklayers Local 2 (Gunnar I. Johnson & Son, Inc.),
224 NLRB 1021 (1976), the Board found that a picket-line
clause stating, “Refusal to pass through a lawfully permitted
picket line will not constitute a violation of the agreement,”
violated Section 8(e) of the Act because it was “broad enough
to apply to secondary picketing having no connection with
disputes concerning jobsite subcontracting.”16 This clause was
overly broad on its face.
15 See Teamsters Local 55 (Anopolsky & Sons) , 145 NLRB 722
(1963).
16 The Board in Bricklayers Local 2, supra, stated:
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I therefore find from the above and the facts in this case that
the picket line clause at article IV, section 5 of the Independent
Agreement clearly violates Section 8(e) of the Act.17
When ascertaining if an “object” of a strike is unlawful, the
United States Court of Appeals in Electrical Workers Local 480
v. NLRB, 413 F.2d 1085 (D.C. Cir. 1969), held:
We agree that it would be impermissible for the Board to con­
clude from the secondary effect of picketing that it had a sec­
ondary object. The two must be kept separate . . . . A secon­
dary effect is but one evidentiary factor which may shed light
on the object of the actors.
Thus, the fact that a strike occurs is not dispositive of the ob­
jects of the strike even if as a consequence of the strike the
Employer may have entered into an agreement that would vio­
late Section 8(e) of the Act. Moreover, in ascertaining the ob­
ject sought by the strike, it does not matter that the union for­
mulates its objectives as a demand. “The parties well under-
stood what alternative action was expected of the Company as a
condition of the cessation of the picketing, without the neces­
sity of formulating the specific demand. Nor is it of any impor­
tance that not all the objectives of the picketing were proscribed
by Section 8(b)(4)(A).”18
The General Counsel has alleged that Local 32B-32J vio­
lated Section 8(b)(4)(ii) and (A) of the Act by striking where an
object of the strike was to compel the Employer to sign a col­
lective-bargaining agreement containing a picket line clause
which is violative of Section 8(e) of the Act.
However, in Longsoremen Local 1418 ILA (New Orleans
Steamship Assn.), 235 NLRB 161, 169 (1978), in a decision
affirmed by the Board, Administrative Law Judge Arthur Leff
found:
Contrary to the General Counsel’s contention, I find that the
record in this case does not support a finding of a violation of
Section 8(b)(4)(ii)(A), separate and apart from the violation of
Section 8(e) found above. Section 8(b)(4)(ii)(A) to the extent
here pertinent makes it an unfair labor practice for a labor or­
ganization:
to threaten, coerce, or restrain any person engaged in
commerce . . . where . . . an object thereof is:
(A) forcing or requiring any employer . . . to en­
ter into any agreement which is prohibited by
Section 8(e).
It is clear from the legislative history of Section 8(e) that Congress in-
tended to proscribe the entering into of a hot cargo clause as well as its
subsequent enforcement, except to the extent that the construction in­
dustry proviso to that section exempts the entering into of agreements
“relating to the contracting or subcontracting of work to be done at the
site of the construction.”
17 I do not find persuasive, Local 32B-32J’s arguments in its brief
that the picket -line clause in the Independent Agreement was lawful.
See Teamsters Local 467 (Mike Sullivan & Associate), supra, and cases
cited therein.
18 Longshoremen, Local 8 ILWU (General Ore, Inc.), 126 NLRB
172, 173 (1960). Also see, Mine Workers, Local 1854 (Amax Coal
Co.), 238 NLRB 1583, 1587 (1978), “The fact that one of the objec­
tives of the strike was lawful does not, in any way, diminish the fact
that the other objective was unlawful.”
Unlike Section 8(e) which prohibits voluntary agreements,
Section 8(b)(4)(ii)(A) requires independent proof that the em­
ployer party was restrained and coerced.
Moreover, in ABC Outdoor Advertising, Inc., 169 NLRB 113
(1968), Administrative Law Judge Thomas A. Ricci stated in
his decision affirmed by the Board:
In support of its argument that Local 770 was striking unlaw­
fully on April 24, the Respondent rests primarily upon those
Board decisions holding that a union may not strike or picket
to force the employer to agree to a written hot cargo contract
provision. I cannot find on the record here that this was the
purpose of the strike; the true objectives could as well have
been the many company demands from which the Union had
refused to recede . . . . This is supporting indication that the
real disagreement which provoked the strike was a matter of
money . . . . No precedent has been cited for a proposition of
law that whenever a union, at any stage of bargaining negotia­
tions, requests an unlawful hot cargo clause, any strike which
follows is illegal regardless of how the respective positions of
the parties may have changed in the intervening period, and I
do not believe this to be the law.[19]
In the instant case I cannot find that on the record the pur­
pose of the strike was to compel the Employer to agree to the
picket-line clause in the Independent Agreement, as a major
objective thereof, or as it seems to me even one of the apparent
objectives of the strike. The parties each knew full well what
the Independent Agreement contained including the picket-line
clause and yet this clause was never a topic of discussion or
controversy between the parties until the Employer raised it as
an issue after the striking employees sought to return to work
and the Employer filed an unfair labor practice charge with the
Board. Additionally, McGill admitted that the areas of conten­
tion between the parties were those included in his October 8,
1998 letter to Sturm. The evidence herein shows that these
areas in dispute, i.e., wages, benefits, arbitration provisions, and
duration of the contract, were economic and the real disagree­
ment that provoked the strike.
From all of the above, I find and conclude that the General
Counsel has failed to prove that Local 32B-32J violated Section
8(b)(4)(ii) and (A) of the Act by striking where an object of the
strike was to compel Pratt Towers to sign a collective-
bargaining agreement containing a picket line clause violative
of Section 8(e) of the Act. I therefore grant the Respondent
Union’s motion to dismiss the complaint.20
19 Citing MV Liberator, 136 NLRB 13, 20 (1962): In that case the
Board held:
While one of the original objectives of the picketing was renewal of
the Local 33 agreement, which contained an unlawful union-security
clause, . . . the record neither shows that Local 33 was adamant in its
union-security demand, nor that such demands were at any time a ma­
jor objective of the picketing.
20 Pratt Towers cites Musician Local (Bow & Arrow Manor, Inc.),
206 NLRB 581 (1973), in support of its position herein that Local 32B-
32J violated Sec. 8(b)(4)(A) of the Act. However, in that case the
Board found that the union had violated Sec. 4(b)(4)(A) on the basis of
the union’s following actions: The Board stated:
SERVICE EMPLOYEES LOCAL 32B-32J (PRATT TOWERS) 327
CONCLUSIONS OF LAW
We agree with the administrative law judge’s conclusion that Re­
spondent (union) violated Sec. 8(b)(4)(A) of the Act. He concluded
that:
In this case, the Union induced and encouraged members of the Her-
man and Bruce orchestra[s] to cease work for their employers, Her-
man and Bruce, at the manor, unless the Manor executed the Union
Form B agreement covering their working conditions, and further
threatened, restrained, and coerced Herman and Bruce, as employers
and independent contractors, to cease doing business with the Manor
unless the Manor executed the Form B agreement, by inducing and
encouraging their employees to strike, and by threatening Herman and
Bruce with penalties under the Union’s and the Federation [sic] Con­
stitution, By-laws, orders and regulations. It would thus appear that
General Counsel has made out his case in support of the allegation
that the Union engaged in a violation of Section 8(b)(4)(i)(ii)(A) by
seeking to obtain the Form B agreement with a clause of the character
which the Board found unlawful in the Patton Warehouse case. [140
1. Pratt Towers, Inc., is an employer engaged in commerce
within the meaning of Section 2(1), (2), (6), and (7) and Section
8(b)(4) of the Act.
2. Local 32B-32J, Service Employees International Union,
AFL–CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. The picket-line clause, article IV, section 5 of the Inde­
pendent Agreement is violative of Section 8(e) of the Act.
4. The Respondent Union, Local 32B-32J did not violate

Section 8(b)(4)(ii) and (A) of the Act.

[Recommended Order for dismissal omitted from publica­

tion.]
NLRB 1474, enfd. as modified 334 F.2d 539 (C.A.D.C., 1964).] Con­
trast the union’s actions in Associated Musicians, suprawith Local
32B-32J’s conduct in the instant case.