Service Employees Local 87 (Trinity Maintenance)

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 715 (N.L.R.B. 1993)

715
312 NLRB No. 120
SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
1 We deny the Charging Parties’ motion to strike the Respondent’s
exceptions as being without merit. We find it unnecessary to pass
on the General Counsel’s motion to strike a portion of the Respond-
ent’s brief because we find no merit in the argument the Respondent
advances in the paragraph in question.
2 The Board’s established policy is not to overrule an administra-
tive 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). To the extent that Charging Party IMA Commer-
cial Properties has excepted to some of the judge’s credibility find-
ings, we have carefully examined the record and find no basis for
reversing the findings.
We correct the inadvertent error in the judge’s decision in the last
sentence of the 12th paragraph of sec. IV,B,2 where he refers to
May 20 and 22 as March 20 and 22.
3 The General Counsel has excepted to the judge’s failure to find
certain 8(b)(4)(i)(B) violations as alleged in the complaint. We find
it unnecessary to pass on the issue of whether the judge properly dis-
missed these complaint allegations because the finding of the addi-
tional violations sought by the General Counsel would be cumulative
and would not affect the Order. In this connection, we note that the
Charging Parties affected by these exceptions are specifically named
in the Order and the broad order will apply to all other persons.
We also find it unnecessary to pass on the General Counsel’s ex-
ception to the judge’s failure to find an 8(b)(4)(ii)(B) threat. Such
a finding would be cumulative and would not affect the Order.
4 We agree with the judge that a broad order is warranted in this
case based on the Respondent’s actions over a 15-month period in
addition to its actions addressed in previous Board decisions. We
note that Iron Workers Local 378 (N.E. Carlson Construction), 302
NLRB 200 (1991), cited by the judge in providing the broad order,
was enforced on June 24, 1993, in an unpublished decision by the
Ninth Circuit Court of Appeals.
5 The judge inadvertently omitted from Conclusion of Law 11(b)
the date of January 11, 1991, from the list of dates on which picket-
ing at the Koret building violated the Act. We correct that omission.
The General Counsel has excepted to the judge’s inadvertent omis-
sion of the tenants of ‘‘631 Howard’’ from par. 1(b) of the rec-
ommended Order. We shall correct the omission.
Service Employees Union, Local 87, Service Em-
ployees International Union, AFL–CIO and
Trinity Building Maintenance Company and
West Bay Building Maintenance Company, Inc.
and JMA Properties, Ltd. and Koret of Cali-
fornia, Inc. and IMA Commercial Properties
and Northwest Asset Management Company,
Inc. and Brighton Pacific Asset Management
Company. Cases 20–CC–3162, 20–CC–3164, 20–
CC–3165, 20–CC–3168, 20–CC–3174, 20–CC–
3177, 20–CC–3189, 20–CC–3190, and 20–CC–
3196
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 10, 1993, Administrative Law Judge Bur-
ton Litvack issued the attached decision. The General
Counsel, the Respondent, and Charging Party IMA
Commercial Properties each filed exceptions and a
supporting brief; the General Counsel and the Charg-
ing Parties filed answering briefs; the Charging Parties
filed a motion to strike the Respondent’s exceptions;
and the Respondent filed a response to the motion to
strike.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions3 and to adopt the rec-
ommended Order4 as modified.5
The judge dismissed the complaint in Case 20–CC–
3189. The General Counsel alleged that the Respond-
ent, as part of its ‘‘Justice for Janitors’’ campaign,
picketed at two buildings and sought strike sanctions
against one building in an effort to force the buildings’
management company, Charging Party IMA Commer-
cial Properties (IMA), to cease doing business with its
nonunion building maintenance contractor, Complete
Janitorial Service (Complete). The complaint alleges
that the Respondent’s actions were intended to induce
employees of tenants in the buildings to strike in viola-
tion of Section 8(b)(4)(i)(B) and to coerce and restrain
the tenants in the buildings in violation of Section
8(b)(4)(ii)(B).
The judge found that the Respondent’s actions
would be unlawfully secondary in nature if Complete
were an entity distinct from IMA. The judge found,
however, that Complete’s owner, Ali Abdullah, is an
employee of IMA rather than an independent contrac-
tor, because IMA has a right to control the manner and
means by which Ali Abdullah performs his tasks. Ac-
cordingly, the judge found IMA was a primary dispu-
tant and the Respondent’s actions were in lawful pur-
suit of a primary labor dispute. The General Counsel
and IMA filed exceptions to the judge’s finding that
Abdullah is IMA’s employee. We agree with the
judge. In particular, we emphasize the following.
As noted by the judge, Complete’s contract with
IMA is an IMA purchase order form with a three-page
addendum. IMA created the addendum without input
from Abdullah. The addendum prescribes not only that
numerous specific cleaning tasks be performed, but the
manner in which those tasks are to be accomplished.
Although IMA routinely uses its purchase order form
to obtain services from subcontractors, the record does
not establish that in other instances IMA dictates in
such exhaustive detail the tasks to be performed.
We reject the General Counsel’s exception to the
judge’s finding that IMA assistant property manager,
Catherine Carmichael, communicated with Abdullah on
‘‘hundreds’’ of occasions to direct him to complete
work in a more satisfactory manner. The General
Counsel contends the record supports only a showing
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Although the salary issue arose from a previous conversation
with Abdullah, the record evidence overwhelmingly demonstrates
that the Complete contract was generated solely by IMA.
7 In concluding that Abdullah is an employee of IMA, the judge
relied, in part, on a finding that Complete has no contracts other
than the one with IMA.
8 See generally Allbritton Communications, 271 NLRB 201 (1984),
enfd. 766 F.2d 812 (3d Cir. 1985), in which the Board, using the
‘‘right to control test,’’ found that a corporation was not an inde-
pendent contractor but rather an ‘‘administrative arm’’ of the re-
spondent such that the corporation’s employees were also the re-
spondent’s employees.
that Carmichael left Abdullah ‘‘at least 20’’ notes con-
cerning unsatisfactory work. In fact, Abdullah testified
that he visits Carmichael’s office during the day and
all or most of the time there is a note in his box direct-
ing him about cleaning. He testified that ‘‘I go [to
Carmichael’s office] to pick up my note . . . I just
pick up my note and leave.’’ We believe this evidence
suggests that Abdullah routinely expects a note when
he visits Carmichael’s office.
The General Counsel excepts to the judge’s finding
that Abdullah was unaware of a clause in Complete’s
contract stating: ‘‘Vacation for employees is included
in salary.’’ The judge relied on this factor as evidence
that Abdullah had no part in creating the contract
terms. Whether the clause refers to Abdullah or the
people he has do the cleaning, IMA’s concern with va-
cation as a component of salary suggests an employer
concerned with the extent of employee benefits rather
than a contracting party setting forth a contract price
for services to be received.6
The General Counsel and IMA except to the judge’s
failure to find that Complete has oral contracts to per-
form janitorial services for a chain of five super-
markets which are not owned by IMA. Such a finding,
they contend, demonstrates the existence of Complete
as an entity separate from IMA.7
The only evidence offered by the General Counsel
of Complete’s supermarket contracts is Abdullah’s tes-
timony, which the judge did not mention. The judge
discredited other portions of Abdullah’s testimony. As-
suming arguendo that Complete did have these other
contracts, the General Counsel failed to show that this
work was not done by Abdullah on his own time and,
therefore, equivalent to moonlighting. Accordingly, we
find that this testimony, even if credited, does not sup-
port a finding of Complete’s independence from IMA.
In sum, we find in agreement with the judge—not-
ing particularly the existence and nature of the adden-
dum, the property manager’s frequent directing of
Abdullah, the contract’s use of the term ‘‘salary,’’ and
the insufficiency of evidence pertaining to Complete’s
other clients—that the record supports the judge’s find-
ing that IMA was directing Abdullah as an employee
rather than outlining janitorial services for which it
was contracting.8 Accordingly, we find in agreement
with the judge that IMA is a primary party to the labor
dispute and we shall dismiss the complaint in Case 20–
CC–3189.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Serv-
ice Employees Union, Local 87, Service Employees
International Union, AFL–CIO, San Francisco, Califor-
nia, its officers, agents, and representatives, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Picketing or any similar related conduct, threat-
ening to picket, or by any other means threaten, co-
erce, or restrain Northwest Asset Management Co., the
tenants at 49 Stevenson, Gallelli Real Estate, the ten-
ants at 1 Ecker, JMA Properties, Ltd., the tenants at
55 Hawthorne, the tenants at 631 Howard, Koret of
California, Inc., 394 Associates, Brighton Pacific Asset
Management Co., the tenants at 25 Ecker, or any other
person engaged in commerce or in an industry affect-
ing commerce where objects thereof are to force or re-
quire Northwest Asset Management Co., Gallelli Real
Estate, JMA Properties, Ltd., Koret of California, Inc.,
394 Associates, Brighton Pacific Asset Management
Co., or any other person to cease doing business with
Trinity Building Maintenance, West Bay Building
Maintenance, GMG Janitorial Maintenance, or any
other person or to force or require any person to pres-
sure or cease doing business with Northwest Asset
Management Co., Gallelli Real Estate, JMA Properties,
Ltd., Koret of California, Inc., 394 Associates, Brigh-
ton Pacific Asset Management Co., or any other person
in order to force or require the latter persons or any
other persons to cease doing business with Trinity
Building Maintenance, West Bay Building Mainte-
nance, GMG Janitorial Maintenance, or any other per-
son.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT by picketing or any similar related
conduct or in any other manner induce or encourage
any individual employed by JMA Properties, Ltd., the
tenants at 55 Hawthorne and 631 Howard, Koret of
California, Inc., Northwest Asset Management Co.,
Kvaerner Hydropower, Inc., the tenants of 49 Steven-
717SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
1 Prior to the commencement of the hearing in these matters, the
Regional Director of Region 20 issued three amendments to the
complaint in Case 20–CC–3162 on August 2, 1990, September 5,
1991, and September 17, 1991, respectively; two amendments to the
complaint in Case 20–CC–3164 on June 23, 1991, and September
5, 1991, respectively; an amendment to the complaint in Case 20–
CC–3165 on July 23, 1991; an amendment to the complaint in Case
20–CC–3168 on July 23, 1991; and an amendment to the complaint
in Case 20–CC–3177 on January 16, 1991. Counsel for the General
Counsel filed a motion to correct the transcript, which accompanied
Continued
son, Brighton Pacific Asset Management Co., the
FDIC, the tenants of 25 Ecker, or any other person en-
gaged in commerce or in an industry affecting com-
merce, to engage in a strike or a refusal in the course
of his or her employment to use, manufacture, process,
transport, or otherwise handle or work on any goods,
articles, materials or commodities, or to perform any
services where objects thereof are to force or require
JMA Properties, Ltd., Koret of California, Inc., North-
west Asset Management Co., Brighton Pacific Asset
Management Co., or any other person to cease doing
business with West Bay Building Maintenance, Trinity
Building Maintenance, GMG Janitorial Maintenance,
or any other person; or to force or require any person
to pressure or to cease doing business with JMA Prop-
erties, Ltd., Koret of California, Inc., Northwest Asset
Management Co., Brighton Pacific Asset Management
Co., or any other person in order to force or require
the latter persons or any other persons, in turn, to
cease doing business with West Bay Building Mainte-
nance, Trinity Building Maintenance, GMG Janitorial
Maintenance, or any other person.
WE WILL NOT by picketing or any similar related
conduct, by threatening to picket, or by any other
means threaten, coerce, or restrain Northwest Asset
Management Co., the tenants at 49 Stevenson, Gallelli
Real Estate, the tenants at 1 Ecker, JMA Properties,
Ltd., the tenants at 55 Hawthorne, the tenants at 631
Howard, Koret of California, Inc., 394 Associates,
Brighton Pacific Asset Management Co., the tenants at
25 Ecker, or any other person engaged in commerce
or in an industry affecting commerce where objects
thereof are to force or require Northwest Asset Man-
agement Co., Gallelli Real Estate, JMA Properties,
Ltd., Koret of California, Inc., 394 Associates, Brigh-
ton Pacific Asset Management Co., or any other person
to cease doing business with Trinity Building Mainte-
nance, West Bay Building Maintenance, GMG Jani-
torial Maintenance, or any other person or to force or
require any person to pressure or cease doing business
with Northwest Asset Management Co., Gallelli Real
Estate, JMA Properties, Ltd., Koret of California, Inc.,
394 Associates, Brighton Pacific Asset Management
Co., or any other person in order to force or require
the latter persons or any other persons to cease doing
business with Trinity Building Maintenance, West Bay
Building Maintenance, GMG Janitorial Maintenance,
or any other person.
SERVICE EMPLOYEES UNION, LOCAL 87,
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL–CIO
Paula Katz, Esq., for the General Counsel.
Stewart Weinberg, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Respond-
ent.
Scott D. Rechtschaffen and David P. Byrnes, Esqs. (Littler,
Mendelson, Fastiff & Tichy), of San Francisco, California,
for all Charging Parties except JMA Properties, Ltd.
Gordon J. Fine, Esq. (Corbett & Kane), of Emeryville, Cali-
fornia, for Charging Party JMA Properties, Inc.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. A trial in
the above-captioned consolidated matters was held before me
in San Francisco, California, on November 5 through 8, 12
through 14, 19, 20, and 22, and December 2, 3, 11 through
13, 1991, and January 27, 29, and 30, and February 6, 1992.
The trial was held pursuant to a complaint in Case 20–CC–
3162, which was issued on July 10, 1990, by the Regional
Director of Region 20 of the National Labor Relations Board
(the Board), and which was based on an unfair labor practice
charge filed by Trinity Building Maintenance Company
(Trinity), on June 14, 1990; a complaint in Case 20–CC–
3164, which was issued on August 1, 1990, by the aforemen-
tioned Regional Director and which was based on an unfair
labor practice charge filed by West Bay Building Mainte-
nance Company, Inc. (West Bay), on July 10, 1990; a com-
plaint in Case 20–CC–3165, which was issued by the afore-
mentioned Regional Director on August 13, 1990, and which
was based on an unfair labor practice charge filed on August
3, 1990, by West Bay; a complaint in Case 20–CC–3168,
which was issued by the aforementioned Regional Director
on October 4, 1990, and which was based on an unfair labor
practice charge filed by JMA Properties, Ltd. (JMA), on Sep-
tember 21, 1990; a complaint in Case 20–CC–3174, which
was issued by the aforementioned Regional Director on April
29, 1991, and which was based on an unfair labor practice
charge filed by JMA on November 15, 1990; a complaint in
Case 20–CC–3177, which was issued by the aforementioned
Regional Director on January 15, 1991, and which was based
on an unfair labor practice charge filed by Koret of Califor-
nia, Inc. (Koret), on January 3, 1991; a consolidated com-
plaint in Cases 20–CC–3189 and 20–CC–3190, which was
issued by the aforementioned Regional Director on July 11,
1991, and which was based on an unfair labor practice
charge filed by IMA Commercial Properties (IMA), on May
23, 1991, and an unfair labor practice charge filed on June
19, 1991, by Northwest Asset Management Company, Inc.
(NAMCO); and a complaint in Case 20–CC–3196, which
was issued by the aforementioned Regional Director on Au-
gust 23, 1991, and which was based on an unfair labor prac-
tice charge filed by Brighton Pacific Asset Management
Company (Brighton Pacific), on August 7, 1991.1 The com-
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
her posthearing brief, and I shall grant her motion and order that the
transcript be corrected.
2 At the hearing, counsel for the General Counsel sought, on sev-
eral occasions, to substantively change the allegations of each of the
consolidated complaints. Several of such proposed amendments were
granted and several were denied by me. I have reconsidered all of
the above and shall adhere to my rulings during the trial.
3 The Board’s normal jurisdictional standards are as set forth in
Siemons Mailing Service, 122 NLRB 81 (1958). Further, the Board
will assert jurisdiction over ‘‘all enterprises engaged in the manage-
ment and operation (whether as owners, lessors, or contract man-
agers) of office buildings, if the gross revenue derived from such
buildings amounts to $100,000, of which $25,000 must be derived
from organizations whose operations meet any of the Board’s juris-
dictional standards, exclusive of the indirect outflow and indirect in-
flow standards. . . .’’ Mistletoe Operating Co., 122 NLRB 1534,
1536 (1959); 373–381 South Broadway Associates, 303 NLRB 973
(1991).
plaints allege that Service Employees Union, Local 87, Serv-
ice Employees International Union, AFL–CIO (Respondent)
has engaged in, and is engaging in, conduct violative of Sec-
tion 8(b)(4)(i) and (ii)(B) of the National Labor Relations
Act (the Act). Respondent timely filed answers to the several
complaints and amendments thereto, denying the commission
of the alleged unfair labor practices, and the above-captioned
matters were consolidated and scheduled for trial. At the
trial, all parties were afforded the opportunity to examine and
cross-examine witnesses, to offer into the record any relevant
evidence, to argue their legal positions orally, and to file
posthearing briefs. All counsel filed such documents, and
they have been carefully considered by me. Accordingly,
based on the entire record herein,2 including the posthearing
briefs, and my observation of the testimonial demeanor of
the several witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION3
A. Cases 20–CC–3164 and 20–CC–3190
At all times material herein, 49 Stevenson Corporation, a
Delaware corporation, has been the owner of a building lo-
cated at 49 Stevenson Street in San Francisco, California,
and has been signatory to a contract with Constructa U.S.,
Inc. (Constructa), a Delaware corporation, for the manage-
ment of the building. In turn, since January 1989, Constructa,
which annually provides real estate services, valued in excess
of $50,000, for customers located outside the State of Cali-
fornia, has subcontracted the property management services
at the 49 Stevenson Street building to NAMCO, a California
corporation. At all times material herein, NAMCO has been
engaged in the business of property management, managing
buildings such as the above building and the building located
at 394 Pacific Avenue in San Francisco, California. During
calendar years 1989 and 1990, NAMCO derived gross reve-
nues from the operation of commercial office buildings, each
year, in an amount in excess of $100,000, of which amount,
each year, in excess of $25,000 was derived from its contract
with Constructa.
During the 12-month periods ending July 10 and Decem-
ber 31, 1990, the 49 Stevenson Corporation, in the course
and conduct of its business operations described above, de-
rived gross revenues in excess of $100,000 from the rental
of the 49 Stevenson Street building, of which amount in ex-
cess of $25,000 was derived from Kvaerner Hydro Power,
Inc. (Kvaerner). The latter is a California corporation, with
an office and place of business in the 49 Stevenson Street
building, and is engaged in the business of designing and
supplying hydromechanical equipment. During the 12-month
period ending July 10 and December 31, 1990, in the course
and conduct of its aforementioned business operations,
Kvaerner sold and shipped goods and products, valued in ex-
cess of $50,000, directly to customers located outside of the
State of California.
At all times material herein, 394 Associates has been en-
gaged in business as the owner of a commercial office build-
ing located at 394 Pacific Avenue in San Francisco, Califor-
nia, and has contracted with NAMCO for management serv-
ices for the building. In the course and conduct of its afore-
mentioned business operations, 394 Associates annually de-
rives gross revenues in excess of $100,000 from the rental
of office space in the 394 Pacific Avenue building, of which
amount in excess of $25,000 is derived from the rental of
office facilities to the Wells Fargo Bank real estate division.
Respondent stipulated that the Wells Fargo Bank is an enter-
prise engaged in interstate commerce and admitted that, dur-
ing the above time period, in connection with its business
operations at the 394 Pacific Avenue building, Wells Fargo
Bank satisfied one of the Board’s direct standards for the as-
sertion of jurisdiction.
B. Cases 20–CC–3164, 20–CC–3165, 20–CC–3168,
20–CC–3174, and 20–CC–3177
West Bay, a California corporation, with an office located
in San Francisco, California, is engaged in business as a jani-
torial contractor. During the 12-month period ending Feb-
ruary 15, 1990, West Bay provided janitorial services, valued
in excess of $50,000, in San Francisco for the Sharper Image
Corporation, a retail enterprise located within the State of
California. Respondent admitted that, during the above pe-
riod of time, the Sharper Image Corporation, in the normal
course and conduct of its business operations, had gross re-
tail sales in excess of $500,000 and purchased and received
goods and products valued in excess of $50,000 directly
from suppliers located outside the State of California.
At all times material herein, Koret, a California corpora-
tion, with an office and place of business in San Francisco,
California, has been engaged in the manufacture and sale of
wearing apparel. During the 12-month period preceding the
issuance of the complaint in Case 20–CC–3177, in the nor-
mal course and conduct of its aforementioned business oper-
ations, Koret sold and shipped goods and products, valued in
excess of $50,000, directly from its San Francisco, California
facility to customers located outside the State of California.
Also, during said time period, Koret purchased and received
goods and products, valued in excess of $50,000, directly
from suppliers located outside the State of California.
C. Case 20–CC–3189
At all times material herein, Sakti International has been
engaged in business as the owner of the commercial office
building located at 260 California Street in San Francisco,
California, and has contracted with IMA for management
services at the building. During the calendar year ending on
719SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
4 The matter of the agency status of Leung, Hassan, Hong, and
Kahn is at issue herein. In this regard, Respondent’s counsel con-
ceded the agency status of each except if he or she was not acting
in his or her official capacity at the time and stipulated that, when-
ever Leung, Hong, Hassan, or Kahn were present at a demonstration,
each acted in his or her official capacity and as an agent of Re-
spondent. Further, while, according to Richard Leung, Linda Kahn
‘‘was paid through an international subsidy through Local 87,’’ she
is listed on the 1990 LM-2 report, submitted by Respondent to the
Department of Labor, as a business agent employed by it. In the
foregoing circumstances, I find that, at all times material herein,
Richard Leung, Yehya Hassan, Roy Hong, and Linda Kahn, in their
official capacities, acted as agents for Respondent.
December 31, 1990, in connection with its ownership of the
commercial office building located at 260 California Street,
Sakti International received gross revenues, valued in excess
of $100,000, from the rental of office facilities, of which
amount in excess of $25,000 was derived from Citibank. Re-
spondent stipulated that Citibank is an enterprise engaged in
interstate commerce and admitted that, during the above time
period, in the normal course and conduct of its business op-
erations at the 260 California Street building, Citibank satis-
fied one of the direct standards for the assertion of jurisdic-
tion by the Board.
At all times material herein, 230 California Street Associ-
ates, a limited partnership, has been engaged in business as
the owner of a commercial office building at 230 California
Street in San Francisco, California, and has contracted with
IMA for management services at the building. During the
calendar year ending on December 31, 1990, in the normal
course and conduct of its ownership of the 230 California
Street building, 230 California Street Associates derived in
excess of $100,000 from the rental of office facilities, of
which amount in excess of $25,000 was received from
L’Entecote de Pari Aussi, a restaurant located in the building.
During the aforementioned time period, in connection with
its business operations at 230 California Street, the restaurant
derived gross revenues in excess of $500,000 and purchased
and received goods and products, valued in excess of
$50,000, directly from suppliers located outside the State of
California.
D. Case 20–CC–3196
At all times material herein, the commercial office build-
ing at 25 Ecker Street in San Francisco, California, has been
owned by the Ecker Square Condominium Owners Associa-
tion and has been managed by Brighton Pacific. The building
is divided into 34 condominium units, of which 33 are
owned by the Federal Deposit Insurance Corporation (FDIC),
an agency of the United States Government. At all times ma-
terial herein, the FDIC has subdivided the 33 condominiums
into offices for its use in San Francisco, California, and the
parties stipulated that the FDIC, in the normal course and
conduct of its business operations at 25 Ecker Street, annu-
ally purchases and receives goods and products, valued in
excess of $50,000, directly from suppliers located outside the
State of California.
II. LABOR ORGANIZATION
Respondent admits that, at all times material herein, it has
been a labor organization within the meaning of Section 2(5)
of the Act.
III. ISSUES
Based on the allegations of the nine complaints, which
were consolidated for the instant proceeding, it is alleged
that, over the course of a 15-month period, Respondent en-
gaged in a campaign against the nonunion janitorial contrac-
tors in San Francisco, California, and that, rather than bring-
ing pressure to bear against the janitorial contractors them-
selves, Respondent focused its attack against the owners,
managers, tenants, and their employees of the buildings, in
which the nonunion janitorial companies were contracted to
perform services. It is further alleged that the several owners,
building managers, tenants, and their employees were
unoffending neutral parties to the labor disputes between Re-
spondent and the nonunion janitorial contractors; that Re-
spondent’s tactics included blatantly coercive conduct, in-
cluding traditional picketing, loud and raucous demonstra-
tions, blocking ingress and egress from buildings, trespassory
invasions of several buildings, and threats of picketing or
other secondary conduct; that an object of such activity was
to force the building managers and owners to cease doing
business with the nonunion contractors; and that, accord-
ingly, Respondent engaged in conduct violative of Section
8(b)(4)(i) and (ii)(B) of the Act. While apparently not disput-
ing that it, indeed, was conducting a campaign against non-
union janitorial contractors, Respondent contends that it en-
joys a right, guaranteed by the first amendment to the Con-
stitution, to engage in a peaceful campaign against the non-
union contractors; that the object of the assertedly unlawful
conduct herein was merely to protest labor law violations
committed by the nonunion janitorial contractors and their
subcontractors; that some of the so-called unoffending neu-
tral parties were, in reality, joint employers of the janitors,
who are employed in the buildings at which the allegedly un-
lawful activity occurred; and that, in at least one instance,
agents of Respondent were ‘‘set up’’ to allegedly violate the
Act by a clever attorney. In sum, Respondent denies that it
engaged in any unlawful conduct herein.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Introduction
Respondent is a labor organization, which represents indi-
viduals employed as janitors in commercial office buildings
in San Francisco, California; at all times material herein,
Richard Leung has been the president of Respondent, Yehya
Hassan has been the secretary/treasurer, Roy Hong has acted
in the capacities of organizer and organizing director for the
labor organization, and Linda Kahn has been acting on Re-
spondent’s behalf as a business agent.4 The record estab-
lishes that, during the approximate 16-month period encom-
passing the alleged unfair labor practices herein, Respondent
engaged in a course of conduct, which may be characterized
as its ‘‘Justice for Janitors’’ campaign and which seemingly
had dual underlying motivations. The first involved labor dis-
putes with various nonunion building maintenance companies
and Respondent’s business-related efforts aimed at causing
building owners or managers to reconsider previously made
decisions to terminate contractual relationships with union
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Much of the testimony, regarding Respondent’s conduct herein,
was uncontroverted, and Respondent conceded being responsible for
all of the demonstrations, described below, except one at the build-
ing located at 49 Stevenson Street on August 6, 1991.
6 Boschetto testified that he has been in the janitorial contracting
business for 14 years and that he holds all management positions in
the corporation.
7 Boschetto originally testified, with regard to the agreement be-
tween the parties, that ‘‘it’s a month-to-month contract.’’ However,
during cross-examination, on being confronted with the contract,
which had a 1-year term but renewed itself for 3 years after each
year unless either party gave 30 days’ written notice of its intention
to terminate the contract, he conceded that it was not a month-to-
month arrangement. Asked to explain his error, Boschetto said
‘‘that’s what I believed it was,’’ and when then asked if he had read
the contract, Trinity’s owner averred that ‘‘Well, to tell you the
truth, I never read it verbatim . . . word for word’’ and that he just
assumed the term was month to month.
8 As will be discussed below, Trinity’s status as a nonunion jani-
torial contractor was well known to Respondent, and such appears
to have been an important aspect of its campaign against Trinity at
49 Stevenson.
9 During its case-in-chief, Respondent offered the testimony of
three individuals (Maria Esperanza Vivas, Jack Palacios, and Roger
Rodriquez), each of whom had worked for Diaz, with regard to the
ages of the personnel who performed janitorial work for him, their
hours of work, and Diaz’ payment practices. Each also testified that
he or she gave a written statement, detailing his or her work experi-
ences with Diaz, to Respondent during June 1990. Noting that the
testimony of these witnesses was uncontroverted and not inherently
incredible, for purposes herein, the significant fact is that there is no
record evidence of any reason for Respondent to have doubted the
veracity of such information or to have not relied on it in filing a
subsequent lawsuit.
10 This lawsuit was eventually settled before trial.
11 Boschetto testified that his subcontracting agreement with Ri-
vera was an oral one and that he immediately chose to subcontract
the night work as ‘‘It was just easier for me at that time to do that.’’
Eventually, according to Boschetto, he informed NAMCO of the Ri-
vera relationship ‘‘some time in 1990,’’ and ‘‘they said, ‘Fine. Just
let us know about it.’’’ He added that he discontinued subcontracting
the night janitorial work at 49 Stevenson in October 1990 ‘‘just be-
cause I felt it to be my obligation.’’ Contradicting Boschetto on the
latter point, Ruth Wheeler, the building manager for NAMCO at 49
Stevenson from October 1989 through November 1990, testified that,
in early June 1990, she was informed by a superior with NAMCO
that ‘‘some of Trinity’s work at 49 Stevenson was being done by
subcontract employees and that, shortly thereafter, she met with
Boschetto and warned him that the maintenance contract would be
terminated unless he ceased the use of subcontract employees that
same day. According to her, Boschetto agreed to do so and said
‘‘within a few days’’ that he had complied with her demand.
signatory contractors in order to contract with less expensive
nonunion building maintenance companies for the providing
of janitorial services. The other motivating factor involved
Respondent’s altruistic desire to inform the public of alleged
violations of various Federal and state labor laws committed
by a San Francisco janitorial contractor, who provided work-
ers to at least one Charging Party herein, Trinity. Whether
Respondent’s campaign5 constituted constitutionally pro-
tected free speech or became patent secondary conduct viola-
tive of the Act is the issue herein.
2. Case 20–CC–3162
The initial allegations of unlawful conduct herein occurred
in June 1990 at the building, the address of which is 49 Ste-
venson Street in San Francisco. Located at the intersection
of Ecker and Stevenson Streets, the building (49 Stevenson),
which is directly across Ecker Street from the building at 1
Ecker Street, is a 15-story commercial highrise office build-
ing with retail stores on the street level. A one-story high
overhang extends out to large white pillars along the Ecker
Street and Stevenson Street sides of the building, and be-
neath it is an arcade area, which is private property. On the
Stevenson Street side of the building, there is a public side-
walk, and the arcade area is approximately 8 feet wide. The
front entrance to the 49 Stevenson building is located at the
end of the arcade area on the Stevenson Street side and con-
sists of a recessed entryway leading to two glass doors,
which are 15 feet from the sidewalk. NAMCO, which man-
ages the building, has its suite of offices on the second floor
of the building, overlooking the arcade area. Tenants of 49
Stevenson in June 1990, besides NAMCO, included Data Vi-
sion, Constructa U.S., Combs and Greenley, and the Yank
Sing Restaurant, which did not open for business until early
July. The record reveals that neither NAMCO nor any of the
other tenants have employees who perform janitorial work
and that Respondent has never requested that NAMCO enter
into a collective-bargaining agreement with it.
The record establishes that, since on or about March 1989,
NAMCO has contracted with Trinity, a California corpora-
tion and wholly owned by Michael Boschetto,6 for janitorial
and window cleaning services at 49 Stevenson.7 The record
further establishes that there has never been any collective-
bargaining relationship between Trinity and Respondent and
that there has been an ongoing labor dispute between them
since, at least, the spring of 1990.8 Thus, during that time
period, Respondent began gathering evidence that, at com-
mercial office buildings and other business locations in San
Francisco, an individual named Maurice Diaz, doing business
as Maurice Diaz Building Maintenance, was providing work-
ers for janitorial maintenance work; that, in the course and
conduct of his business operations, Diaz assertedly was com-
mitting violations of Federal and State of California labor
laws;9 and that he provided manpower, pursuant to sub-
contracting arrangements, to other maintenance contractors,
including Trinity. Respondent’s efforts culminated in the fil-
ing of a lawsuit by Respondent, on behalf of several employ-
ees of Diaz, against Diaz, Trinity, and other unnamed build-
ing maintenance companies, on July 6, 1990, alleging several
California labor code violations.10
The record reveals that, until June 11, 1990, at 49 Steven-
son, Respondent supplied one day janitor, who worked at the
building from 6:30 a.m. until 10:45 a.m. and from 2:15 p.m.
until 3 p.m. and whose duties included checking and stock-
ing the restrooms and special assignments, and normally two
night janitors, who worked from approximately 5:30 p.m.
until midnight and whose duties were to clean the common
areas, restrooms, and tenant suites. While maintaining that
the day janitor was an employee of Trinity, Boschetto testi-
fied that, from the commencement of his contract with
NAMCO for 49 Stevenson, he subcontracted the night jani-
torial work to Rivera Janitorial, a fact he failed to disclose
to NAMCO.11 With regard to supervision of the night jani-
tors, Boschetto stated that such was the responsibility of his
‘‘route supervisor’’ and that he never observed the night
721SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
12 Respondent has had a labor dispute with West Bay with regard
to the latter’s status as a nonunion janitorial contractor since at least
1987. See, for example, Service Employees Local 87 (West Bay
Maintenance), 291 NLRB 82 (1988).
13 According to Boschetto, he called off the meeting after the con-
tinuation of picketing at 49 Stevenson.
14 Calhoun first became aware that Trinity may have been sub-
contracting some of the janitorial work at 49 Stevenson on reading
a leaflet, which had been distributed during one of the days of pick-
eting and which asserted that Boschetto had lied to NAMCO about
the use of subcontractors. Calhoun did not believe the leaflet as the
contract with Trinity prohibits subcontracting; however, according to
him, he did speak to Boschetto, who admitted subcontracting the
night janitor work and agreed to cease doing so.
15 Respondent stipulated that it received this letter on June 12.
16 Slemp is employed by American Protective Services (APS),
with whom NAMCO contracts for security guard services at 49 Ste-
venson. Slemp was assigned to 49 Stevenson from May 14, 1990,
through November 1991.
crew while at work. As to the day janitor, Boschetto stated
that he supervised the former’s work and would visit 49 Ste-
venson ‘‘about once or twice a week’’ in order to do so. He
added that NAMCO was contractually authorized to order
the day janitor to perform ‘‘emergency’’ tasks but that such
authority did not extend to the night janitors.
The record is uncontroverted that picketing occurred at the
49 Stevenson building on several days during the time period
June 4 through 22, 1990, and, as will be discussed below,
shortly after West Bay began janitorial maintenance work at
the 1 Ecker building.12 Mike Boschetto testified that, on
Monday, June 4, he received a telephone call from Ruth
Wheeler, the NAMCO property manager at 49 Stevenson, in-
forming him that Respondent was picketing outside the
building. Three days later, returning Leung’s telephone call,
Boschetto had a conversation with Richard Leung. Boschetto
testified, ‘‘We exchanged greetings and I told him that I un-
derstood he was the president of the Union and I congratu-
lated him. And then, he said he would like to talk to me.’’
Boschetto asked about what, and Leung replied that it was
about how Boschetto did business. The latter asked, ‘‘How’s
that,’’ and Leung responded, ‘‘Non-union.’’ Boschetto re-
plied that he was just trying to compete, and after some back
and forth cursing and talking, they agreed to meet and dis-
cuss the matter on July 19.13 Although present during the
hearing and testifying as a witness, Leung failed to deny ei-
ther the occurrence of or the substance of this telephone con-
versation.
With regard to the picketing itself, two witnesses, Ruth
Wheeler and Richard Calhoun, a NAMCO vice president
whose office is at 49 Stevenson, testified as to what occurred
during the first 2 weeks of June. While unable to recall the
specific dates, Wheeler did recall that picketing occurred
three times each week. She testified that the ‘‘general pat-
tern’’ was that the pickets would arrive at approximately
3:30 p.m. and remain for ‘‘twenty minutes to an hour, usu-
ally’’ and that she would become aware of their presence
‘‘from the noise they made,’’ which was ‘‘extremely loud
chanting by a large group’’ and ‘‘very loud bullhorns.’’
Aware of the presence of the pickets, Wheeler would order
the building security guard to lock the front doors and go
down to the lobby in order to respond to any violence. In
the lobby, according to Wheeler, she observed the same
scene on each occasion—‘‘a large group of people,’’ chant-
ing loudly, carrying picket signs and banners, and marching
back and forth inside the arcade area on the Stevenson Street
and Ecker Street sides of the building. Wheeler recalled that
the picket signs consisted of placards attached to sticks, that
the wording on some sides was ‘‘Justice for Janitors—Local
87’’ and on others, ‘‘Unfair Labor Practices—Local 87.’’ As
to the banners, they were composed of red cloth, cut in the
shape of a flag, and bore the legend, ‘‘Justice for Janitors.’’
Besides the red flag banners and the picket signs, on some
of the days, Wheeler observed demonstrators carrying a large
white banner, 8 feet by 3 feet and bearing the logo ‘‘Justice
for Janitors,’’ and heard them shouting ‘‘NAMCO’’ and
‘‘Trinity’’ on occasion. Finally, Wheeler observed the pickets
distributing leaflets to people, who were entering the building
and identified General Counsel’s Exhibit 31 as one such leaf-
let. The document, with ‘‘Local 87’’ printed in large letters
across the top, is addressed to tenants of 49 Stevenson and
1 Ecker. After stating that, at 1 Ecker, a member of Re-
spondent lost his job as a result of the building manager’s
decision to award the janitorial maintenance contract to West
Bay, a nonunion contractor and that 49 Stevenson has always
utilized a nonunion contractor, Trinity, the leaflet continues,
‘‘your building owners and managers are saving money by
taking jobs away from union workers. You can help us and
help yourselves by contacting your building managers and
letting them know how displeased you are about this scam!’’
Richard Calhoun corroborated Wheeler on the picketing, stat-
ing that such occurred on 6 days during the 2-week period,
that the pickets usually numbered between 15 and 20 indi-
viduals, that the placards were both printed and hand lettered,
and that on the latter signs were the words ‘‘no layoffs, no
paycuts, and justice for janitors,’’ and that printed on the
former signs was the legend ‘‘unfair labor practices—Local
87.’’14
On June 11, with the picketing at 49 Stevenson continuing,
Michael Boschetto met with Ruth Wheeler, and, according to
the latter, Boschetto ‘‘instructed me that because of the union
status situation at the building . . . he was recommending
that we no longer have the day janitor working at 49 Steven-
son. And I agreed to that.’’ The two also agreed on a new
starting time for the night janitors. Accordingly, use of the
day janitor was discontinued that morning, and Boschetto in-
structed his attorney to inform Respondent of that and of the
new starting time for the night janitors. Thereafter, the attor-
ney, Scott Rechtschaffen, drafted a letter, which was ad-
dressed to Richard Leung and hand-delivered15 to Respond-
ent on June 12, stating that employees and representatives of
Trinity would be present at 49 Stevenson only during the
hours 6:30 p.m. to 1 a.m. and not at any other time. He fur-
ther informed Leung that picketing the prior day had oc-
curred at a time when no employees or representatives of
Trinity had been present at 49 Stevenson. With regard to the
presence of a day janitor at the building, Boschetto testified
that he reinstated the position on July 17 because NAMCO
requested that such be done.
With regard to picketing at 49 Stevenson during the time
period June 11 through 22, the building security guard, Ger-
ald Slemp,16 whose workstation was a lobby desk, located
‘‘immediately inside the entrance, testified that he observed
people, carrying placards, in front of the building on June 11
through 15 and on June 18 through 20. Specifically as to
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 One such leaflet, G.C. Exh. 21, is identical to the one obtained
by Wheeler.
18 Miranda testified that his experience, based on having been
picketed by Respondent at eight or nine other buildings in the past,
was that picketing usually occurred at that time of day. 19 The correct address of the building is 45 Jessie Street.
Monday, June 11, Tuesday, June 12, and Wednesday, June
13, he recalled that, each day, a group of 20 to 30 people
gathered in front of 49 Stevenson; that they arrived at ap-
proximately 3 p.m. and remained until no later than 5:30
p.m.; that ‘‘they were on the sidewalk. I’d say the length of
the building . . . on Stevenson Street. . . . They were
marching . . . up and down the sidewalk’’ in ‘‘kind of an
oval circle’’; that, on occasion, the people would march in-
side the arcade area; that, at least, half of the group were car-
rying picket signs, some reading ‘‘Justice for Janitors,’’ oth-
ers stating ‘‘decent peaceful contract,’’ and all stating ‘‘SEIU
Local 87’’ on the reverse side; and that, on most of the days,
the pickets unfolded and carried a large banner, bearing the
message ‘‘Justice for Janitors.’’ Slemp further recalled, on
one occasion, hearing the pickets chant, in unison with a per-
son with a bullhorn, ‘‘ho-ho-union busters-have-to-go’’ and
observing leaflets being distributed to people entering the
building. Bill Miranda, the general manager for West Bay,
which, as stated above, had recently been awarded the jani-
torial maintenance contract for 1 Ecker, testified that, on
June 11, he received a telephone call from the owner of
Grafika, a retail store on the ground floor of 1 Ecker, regard-
ing picketing at that building, and, in response, arrived out-
side 1 Ecker at approximately 4 p.m. According to Miranda,
he observed a group of five people, two of whom were car-
rying sticks with attached printed placards, which read ‘‘No
Service Cuts’’ and ‘‘No Layoffs’’ and ‘‘Local 87,’’ standing
inside the recessed entryway to 49 Stevenson, and, during
the next 40 minutes, several more individuals, four of whom
carried identical picket signs as described above, joined the
original group. While he continued to observe the group, Mi-
randa saw pickets distributing leaflets17 and heard such
chants as ‘‘non-union companies out.’’ Miranda further testi-
fied that, in order to observe possible picketing at 1 Ecker,18
he arrived outside that building on June 14 at approximately
3:30 p.m. and observed three people, standing together un-
derneath the 49 Stevenson arcade near the front entrance, and
beside them ‘‘there were some picket signs and a stack of
. . . paper—some were in color’’ on the ground. Over the
next hour, according to Miranda, approximately 30 people
joined them, and, eventually, the entire group, with about 20
carrying picket signs, ‘‘started going in a circular motion and
ended up going toward Ecker St. The placards read ‘‘no
service cuts and no layoffs . . . . Local 87.’’ Miranda added
that, while marching in front of 49 Stevenson, the pickets
were inside the arcade area and that, after moving over to
in front of the 1 Ecker building, the pickets marched inside
the arcade area in front of that building. Also, according to
Miranda, handbilling occurred on this occasion.
Finally, with regard to picketing at 49 Stevenson, Linda
Taggart, a property manager for NAMCO, who substituted
for Wheeler at 49 Stevenson while the latter was on vacation
during the week of June 18 and whose office is in that build-
ing, testified that she observed the picketing for the entire 3-
week period and that such occurred on Tuesday through
Thursday of each week (June 5 through 7; 12 through 14;
and 19 through 21). With regard to the first week, according
to Taggart, she could hear the pickets prior to observing
them as they first gathered in front of the 1 Ecker building
where someone was shouting into a bullhorn and people
were chanting in response. On each of the days, at approxi-
mately 3:30 p.m., the group of people, consisting of, at least,
25 individuals, would then cross the street to 49 Stevenson
and congregate in the arcade area ‘‘right in [the] recessed
entry area.’’ In the entrance area, the people would walk in
a circular formation, making ‘‘a lot of noise’’ as they did so,
and every third or fourth person in the formation carried a
placard attached to a stick. The signs, which were in dif-
ferent languages, had various messages printed on them—
‘‘unfair labor practices—Local 87:’’ ‘‘Justice for Janitors—
Local 87’’; ‘‘No Layoffs, No Service Cuts’’; and Unfair
Layoffs—Local 87.’’ The pickets remained, each day, until
approximately 5:30 p.m. During the second week of the pick-
eting, Taggart testified, the pickets confined themselves to
the arcade area in the front of the building but outside of the
main entrance. Otherwise, the picketing was conducted iden-
tically to the first week, with the same picket signs and dur-
ing the same daily time period. With regard to the 3-day pe-
riod, June 19 through 21, the picketing was conducted in the
same manner, with individuals carrying the same placards as
previously used and marching in a circular formation in the
arcade area in front of the building. Taggart pointed to three
specific occurrences during this week—the noise level of the
pickets intensified; the pickets unfurled and carried a large
banner with ‘‘Justice for Janitors’’ printed on it; and ‘‘the
main thing that sticks in my mind was the incident in the
street where Ecker and Stevenson meet. Somebody parked a
white truck or van in the middle of the intersection. And
there were people stationed at each . . . corner with signs
that said, honk if you believe in justice for janitors.’’ This
caused ‘‘a cacophony, just a noisy mess.’’ The foregoing ac-
counts of picketing in front of 49 Stevenson, during the first
3 weeks of June 1990, were uncontroverted, and Respondent
conceded responsibility for the acts and conduct described
above.
3. Case 20–CC–3164
Located at the corner of Ecker Street and Stevenson Street
and across Ecker Street from 49 Stevenson, the 1 Ecker
building19 is a commercial office building, with retail stores
on the ground floor. As with 49 Stevenson, a one-story high
overhang extends out to large brick columns spaced along
Ecker Street, creating an arcade area containing the entrances
to the retail stores (The Copy Shop, Grafika, and the Golden
Gate University Book Store) and the front entrance to the
building. The brick columns represent the dividing line be-
tween public and private property. Besides the retail stores,
other tenants of 1 Ecker in June and July 1990 were Ellman,
Burke, Hoffman, and Johnson, a law firm; the San Francisco
Education Fund; the Coro Foundation; and the California
Appellant Project.
Gallelli Real Estate, a commercial real estate broker, re-
ceived a contract from the building owner, No. 1 Ecker As-
sociates, to manage 1 Ecker in May 1990, and, at all times
material herein, Lisa Baddeley has been the property man-
ager at 1 Ecker for Gallelli Real Estate. The record estab-
723SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
20 Nevertheless, according to Baddeley, day janitorial service was
instituted in December 1990.
21 At 1 Ecker, according to Miranda, the janitorial work was sub-
contracted to Edgar’s Janitorial, owned by Edgar Suraez.
22 The testimony, regarding subcontracting by West Bay, herein is
beset by myriad inconsistencies. Thus, at one point, Miranda averred
that all his contracts contain subcontracting clauses. Moments later,
he contradicted himself, stating that there was no such clause in the
Gallelli contract for 1 Ecker. Continuing, Miranda stated that there
was an ‘‘oral’’ provision to said contract, permitting West Bay to
subcontract without the knowledge or consent of Gallelli. He added
that this oral agreement was reached between himself and Baddeley
‘‘before we started the contract I’d say couple weeks into May of
’90.’’ At this time, they discussed several matters, including access
to the building, keys, fire, or other security alarms, the time of trash
removal, and subcontracting. Baddeley, according to Miranda, was,
thus, aware from the outset that West Bay would subcontract the
janitorial work at 1 Ecker. However, during her direct examination,
Baddeley stated that, at all times material herein, she believed that
West Bay’s employees were performing the janitorial work in the
building and that not until early in 1991 did she become aware that
West Bay had always subcontracted the work. During cross-exam-
ination, which occurred after a break in her testimony due to the
death of a family member, Baddeley contradicted herself, stating that
‘‘I believe Bill told me’’ about subcontracting at the time West Bay
entered into its contract with Gallelli and that ‘‘there was no outrage
or shock or anything like that.’’ Asserting that her direct testimony
was in error, Baddeley opined, ‘‘I don’t know why I said that.’’
23 Counsel for the General Counsel offered testimony from Attor-
ney Rechtschaffen with regard to the hand delivery of the letter and
the proof of service, and Respondent failed to deny receipt of the
document.
lishes that, in May, Able Building Maintenance, which was
signatory to a collective-bargaining agreement with Respond-
ent, was the janitorial services contractor for the building,
and the contract for said services was effective through May
31. For reasons unclear in the record, Gallelli Real Estate de-
cided to place the janitorial maintenance contract up for bid,
and West Bay was chosen as the new building maintenance
contractor for 1 Ecker. An agreement, providing for the com-
mencement of West Bay’s services on or about June 1, was
entered into by the parties in May. The record reveals that
Gallelli Real Estate has no employees who perform janitorial
work and that neither the latter nor any tenant at 1 Ecker has
a collective-bargaining agreement with Respondent or has
been the recipient of a demand for such from Respondent.
West Bay, according to its general manager, Bill Miranda,
has never had a collective-bargaining agreement with Re-
spondent, nor has the latter ever demanded that West Bay
enter into such a document.
The record discloses that, on the effective date of its con-
tract for 1 Ecker, June 1, 1990, as did its predecessor, West
Bay provided only night janitors, who worked a 7 p.m. until
3 a.m. shift. According to Baddeley, she wanted only night
janitorial work ‘‘so as not to disrupt my tenants during regu-
lar business hours.’’20 Each night, the janitors’ task is to
clean the building, which work includes vacuuming, mop-
ping, polishing, dusting, and emptying garbage. According to
Miranda, the janitors use mops, buckets, vacuum cleaners,
and trash barrels, and the equipment is stored, each night, in
a ‘‘general telephone room’’ in the building basement and in
equipment rooms on each floor. As to the supplying of jani-
tors for work at 1 Ecker, Miranda testified that West Bay
does not utilize any of its own janitorial employees in the
buildings at which it is contracted to provide janitorial serv-
ices in the city of San Francisco; rather, as was done herein,
West Bay always subcontracts21 the work.22
With the contract between Gallelli Real Estate and West
Bay scheduled to become effective on June 1, Baddeley was
in her office that afternoon when a 1 Ecker tenant telephoned
her, stating that pickets were in front of the building.
Baddeley immediately left her office and arrived at 1 Ecker
at approximately 4:30 p.m. and observed a group of 40 or
50 persons massed on Ecker Street between 1 Ecker and 49
Stevenson, with some under the arcades of both buildings.
According to Baddeley, the people were ‘‘walking, milling,
some were standing’’ and most were carrying sticks, attached
to which were red pieces of cloth, shaped like flags and
bearing the message, ‘‘Justice for Janitors—Local 87.’’ She
added that one person was shouting through a bullhorn and
others were ‘‘handing out pieces of paper.’’ Later that day,
on arriving at home, Baddeley received a telephone call from
an individual, identifying himself as Richard Leung, presi-
dent of Respondent. According to Baddeley, Leung stated
‘‘that I had recently just fired . . . a janitor at 1 Ecker with-
out notice’’ Baddeley responded that she had cancelled the
old maintenance contract with proper notice and had nothing
to do with firing a janitor. ‘‘And then Mr. Leung said . . .
that I had better listen to him now or I would not like the
consequences. . . . And he went on to say that West Bay
pays below minimum wage and . . . hires children.’’
Baddeley responded that West Bay pays higher than mini-
mum wage, that she didn’t believe about West Bay hiring
children, and that Leung ought to speak to the prior mainte-
nance contractor, Able Building Maintenance. Nothing more
was said, and Leung, who did testify during the trial, denied
neither the occurrence of nor the substance of this conversa-
tion. ‘‘Alarmed’’ over the content of the conversation,
Baddeley contacted Attorney Rechtschaffen, who drafted a
letter, dated June 4, addressed to Leung, and hand-delivered
to Respondent that day.23 The letter stated that West Bay
would be performing janitorial services at 1 Ecker between
the hours of 7 p.m. and 3 a.m. and would not be performing
work in the building at any other time during the day and
that the janitors only would be using an entrance to the
building from Jessie Street for entry and exit and no other
entrance.
On June 14, a 1 Ecker tenant gave Baddeley a copy of the
same Respondent leaflet as received by Bill Miranda and
Ruth Wheeler. Also, late in the afternoon that day, as de-
scribed above, Miranda observed individuals, carrying picket
signs reading ‘‘No Service Cuts’’ and ‘‘No Layoffs’’ and
‘‘Local 87,’’ move across the street from 49 Stevenson and
station themselves inside the 1 Ecker arcade area. According
to Miranda, he watched the picketing at 1 Ecker for only
‘‘one to two minutes’’ and then departed as ‘‘that’s all I
needed to see.’’
On July 3, according to Baddeley, she received, by fac-
simile transmission, a copy of a letter addressed to Gary
Gallelli, with an attachment. Said letter, signed by Roy Hong
and dated that day, stated that Respondent had been
leafleting the 1 Ecker tenants and the public for the past
month and was forced to ‘‘escalate’’ its activities. Hong
added, ‘‘We understand that you have taken bids from re-
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 The attachment is a notice for the demonstration on July 9, the
purpose for which is stated as ‘‘We must defend ourselves against
non-union companies taking over our buildings.’’
25 Baddeley testified that, when she went outside to demand that
the demonstrators leave the 1 Ecker arcade area, she had no problem
opening the front doors but, as the crowd surrounded her, with four
to six people in front of the door, ‘‘the door couldn’t have been
opened.’’ While tenants and others were entering and leaving 1
Ecker during the course of the entire demonstration, Baddeley no-
ticed no one blocked from doing so at the time she was surrounded
by the crowd.
26 Miranda also recalled the guitar players and the singing of folk
songs.
27 Miranda testified that he later learned that the woman’s first
name is Gwen and that he believed she is a business agent for Re-
spondent. I note that Respondent’s aforementioned 1990 LM-2 report
sponsible union contractors who will treat their janitors fair-
ly. We hope that you will choose one of these firms for your
cleaning services,’’ and closed with notice of an ‘‘action’’ at
1 Ecker on July 9.24 Subsequent to receipt of Hong’s letter,
Baddeley had a telephone conversation with Richard Leung
with regard to the planned July 9 demonstration. According
to Baddeley, Leung said ‘‘that if I did go with a union jani-
torial contractor, if I signed even though it wouldn’t start
until August or September . . . he would indeed stop the
planned demonstration for . . . . July 9th.’’ Baddeley said
she wouldn’t look at other bids, and Leung replied ‘‘that
. . . I’d be very sorry.’’ Baddeley asked if that was a threat,
but Leung hung up without responding.
On July 9, Baddeley arrived at 1 Ecker at 11:30 a.m. and
noticed approximately 12 individuals, some wearing red
shirts which identified them as being from Respondent,
standing on Ecker Street close to the Stevenson Street inter-
section, with a few ‘‘rolling garbage cans that . . . many
janitorial people use. Baddeley also noticed a box, filled with
the same red banners she had seen in the above-described
June 1 incident. Fearing trouble from the crowd, Baddeley
spoke to the 1 Ecker security guards, instructing them to
make sure that the building entrances remained unblocked
and that tenants had free ingress and egress. While the dem-
onstration was just starting, Bill Miranda of West Bay ar-
rived, and they stood together watching what occurred. Ac-
cording to Baddeley, one of the demonstrators attempted to
tie a large white banner, reading ‘‘Justice for Janitors,’’ to
pipes on the arcade columns; she requested that it be taken
down, and, when her request was ignored, she had to borrow
scissors from one of the retail stores in the arcade and ask
a companion of the person, who had tied the banner to the
pipe, to cut it down. The man complied with her request.
Later, Baddeley introduced herself to the person, who had
tied the white banner to the banner, and the latter, in turn,
introduced himself as Roy Hong. The demonstration, which
grew to, at most, 30 people, continued, with two people play-
ing guitars and ‘‘accompanied by a few other people singing
in a folk song-like manner, songs regarding janitors, Gallelli,
and West Bay.’’ Also, ‘‘other people who were carrying the
banner, the flags, and wearing red shirts . . . were standing
and walking around the Ecker Street area, close to Stevenson
and a little bit down Stevenson.’’ Baddeley continued, stating
that the demonstrators gradually moved from the Stevenson
Street intersection to a point, on Ecker Street, even with the
entrance to 1 Ecker and that a person began shouting into
a bullhorn, with the crowd responding by chanting in reply
and people were blowing whistles. The sound level, to
Baddeley, was very loud. At approximately 1 p.m., Baddeley
observed many of the demonstration participants departing,
and she ‘‘felt that [the demonstration] was breaking up.’’ Ac-
cordingly, she went inside 1 Ecker to speak to various ten-
ants about what had occurred. However, 15 minutes later, the
outside noise level began increasing, and Baddeley decided
to investigate. Crossing the lobby, she observed several of
the red-shirted demonstrators, standing in the arcade area of
the building. She opened the entrance door, ‘‘and I was sur-
rounded by about 12 to 15 people. They were all men, in-
cluding Roy Hong. And they were all yelling and shouting,
blowing whistles, talking in a bullhorn. They crowded in.’’
Baddeley shouted that they were on private property and de-
manded that they leave, and, becoming ‘‘flustered,’’ she
forced her way back inside the building. After calming down,
she again went outside into the arcade area, again was sur-
rounded by the group of demonstrators, and again demanded
that they get off 1 Ecker’s private property or she would call
the police. This time, Hong yelled through the bullhorn,
which was no more than 3 or 4 inches from her face, that
they did not understand English. With the demonstrators ‘‘to-
tally closed in on me,’’ Baddeley was able to escape back
into the building and called the San Francisco police for as-
sistance.25 While she was inside the building, most of the
group of 15 demonstrators moved back onto Ecker Street,
with some going across to the area of the 49 Stevenson ar-
cade and ‘‘a few’’ remaining inside the 1 Ecker arcade area.
At least 30 minutes after she telephoned for assistance, po-
lice officers arrived and dispersed the crowd.
Bill Miranda, who had been notified about the planned
July 9 demonstration by Baddeley 3 days earlier, testified
that he arrived at 1 Ecker at approximately 11 that morning
and that he stationed himself in a garden area across Steven-
son Street from the building. According to him, 30 minutes
later, individuals, wearing red T-shirts, with ‘‘Justice for
Janitors’’ printed thereon, began congregating on Ecker
Street, close to the Golden Gate University Book Store en-
trance in the arcade of 1 Ecker. Lisa Baddeley arrived, and
they walked over to Roy Hong, whom Miranda recognized
in the crowd. ‘‘At that point . . . [the demonstrators] had a
banner that they put on the building, and Lisa asked to take
the banner down. And they stuck flags inside’’ the piping of
the building, ‘‘and she asked them to . . . remove the
flags.’’ Eventually, the demonstrators removed the banner
and flags from the building wall and, using garbage cans as
anchors, erected the banner on Ecker Street. By this point the
demonstrators numbered their maximum total that day, ap-
proximately 20, and most were carrying red banners, bearing
the words, ‘‘Justice for Janitors.’’ Also, a man, whom Mi-
randa identified at the hearing as being Yehya Hassan, began
shouting through a bullhorn and making squealing sounds
with it, and, inside the arcade area of the building, the dem-
onstrators began ‘‘walking around in a circular motion and
they had whistles . . . and they were yelling . . . chants.’’26
While this was occurring, Miranda added, he observed and
heard a black woman, wearing one of the red T-shirts, shout
to the demonstrators, ‘‘We’re gonna come back here until the
property management sign the union contract.’’27 While she
725SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
lists a Gwen Strain. Of course, whether the individual, who uttered
what Miranda heard, is Gwen Strain is a matter of conjecture.
28 Miranda admitted using Maurice Diaz, on occasion, on a sub-
contract basis but denied knowing of Respondent’s allegations
against him for use of child labor.
29 The record establishes that the construction work was being per-
formed on the ground floor of 631 Howard; that the general contrac-
tor for the project was Field Construction; that the construction en-
trance was for the use of Field Construction and its employees and
subcontractors and their employees; that, as of August 1, construc-
tion work commenced daily at 6 a.m. and continued, for two shifts,
until 4 a.m.
30 According to Bill Miranda, West Bay utilized three subcontrac-
tors for the supplying of janitors for work at 631 Howard and 55
Hawthorne—Clean Systems (August 1989 through October 1989),
Maurice Diaz (October 1989 through July 1990), and TDM & G
(August 1990 through August 1991).
31 With regard to JMA’s knowledge of West Bay’s subcontracting
arrangements, Rita Hernandez, who, at all times material herein, was
the manager of 631 Howard and 55 Hawthorne for JMA, testified,
during direct examination, that she first became aware of West Bay’s
above practice on August 1, 1990, from Respondent’s leaflet allega-
tions that West Bay had illegally terminated employees of sub-
contractors. Asked if she objected to West Bay’s use of subcontrac-
tors, Hernandez said, ‘‘No.’’ During cross-examination, after reading
her pretrial affidavit, Hernandez changed the date on which she first
became aware of West Bay’s use of subcontractors to August 2. She
testified further that, on one occasion prior to August 1, 1990, Mi-
randa introduced her to Maurice Diaz, saying he would be ‘‘super-
vising’’ the janitorial staff at the buildings but making no mention
of his subcontracting role; that, subsequently, Miranda confirmed
that he had, in fact, been using Diaz as a subcontractor; that she was
surprised to learn the facts about Diaz and ‘‘was concerned that in
the future I wanted to know who [the] subcontractor was’’; and that
Diaz remained as West Bay’s subcontractor until August 1, 1990, at
which time he was replaced by an individual named Pete Garcia.
According to Hernandez, ‘‘He was the on-site supervisor contact that
I dealt with and he was also the subcontractor for the janitorial
crew’’ after August 1.
spoke but without making any comments, Roy Hong
‘‘[stood] . . . right next to her or relatively close to her.’’
Also, at one point, with Yehya Hassan leading them, ‘‘the
people that were in the red T-shirts tried to go in the build-
ing’’ but were stopped by the 1 Ecker security guards. Mi-
randa continued, stating that, on one occasion, Baddeley was
forced to walk through a number of the demonstrators in
order to enter the building, and she continually said ‘‘excuse
me’’ as she did so. Approaching the door, demonstrators
made it ‘‘very difficult for her to get through’’ and inside.
On another occasion, as Baddeley spoke to Hong, the people
‘‘just gathered around her’’ underneath the arcade. According
to Miranda, ‘‘It looked intimidating.’’ During cross-examina-
tion, he added that, at one point during the demonstration,
Roy Hong pointed at him and said ‘‘these are the people that
are using child labor’’ and that some of the chanting had to
do with the use of child labor.28 The two foregoing accounts
of the July 9 demonstration were uncontroverted, and Re-
spondent conceded responsibility for what transpired.
4. Cases 20–CC–3165, 20–CC–3168, and 20–CC–3174
The record establishes that JMA is engaged in business as
a manager of commercial office buildings in San Francisco
and has a limited partnership interest in each building which
it manages. Among the properties managed by JMA are
buildings located at 631 Howard Street and 55 Hawthorne
Street (631 Howard and 55 Hawthorne, respectively). Al-
though nominally separate with front entrances around the
corner from each other, the two buildings actually form a
two-building complex, being connected by a ground-level
stairwell, and are managed as one entity by JMA. Tenants
in 55 Hawthorne include PC Computer Rental, the American
Diabetes Society, the Leukemia Society, the Bank of Amer-
ica, and FTI West, Inc., a disaster analyst, and tenants in 631
Howard include JMA, The Copy Station, and the Tan Cafe.
The record further establishes that, prior to September 1989,
JMA contracted with ISS, which was signatory to a collec-
tive-bargaining agreement with Respondent, for janitorial
service at both buildings; that, commencing in September
1989 and continuing through August 1991, JMA contracted
with West Bay for janitorial services at both buildings; and
that neither JMA nor any tenant in either building employs
janitorial employees, has ever had a collective-bargaining re-
lationship with Respondent, or has been the subject of a de-
mand for recognition as the bargaining representative for any
of its employees from Respondent.
The record also establishes that, during the summer and
fall of 1990, there were four entrances to the two buildings—
the two front entrances, a construction entrance to 631 How-
ard, and a rear, delivery entrance to 55 Hawthorne, which is
listed as a separate address, 124 Tehama. With regard to the
front entrance to 55 Hawthorne, it is comprised of a tiled
area, leading to two double glass doors, which swing out-
ward. Entering the building, one observes a Bank of America
ATM machine and a 4-foot diameter planter to the left of the
doorway and two 3-foot diameter planters to the right of the
doors. The entire entrance area is 19 feet deep and 24 feet
wide. A lobby area is immediately behind the glass doors.
The front doors of 631 Howard are recessed from the public
sidewalk, with a ‘‘kind of tiled area,’’ 10 feet by 12 feet, in
front of the doorway. Six feet from the front entrance was
the construction entrance, comprised of temporary wooden
doors and leading directly into the ground level.29
The record reveals that, as of July 15, 1990, for use at
both buildings, West Bay provided one day janitor, whose
job duties included ensuring that the entrance areas of both
55 Hawthorne and 631 Howard remained clean throughout
the day, cleaning the restrooms, and answering emergency
calls, and who worked from 7:30 a.m. until 4:30 p.m., and
a crew of five or six janitors, who performed standard jani-
torial duties from 5 p.m. until midnight. However, rather
than being employed by West Bay, the janitors were em-
ployed by other contractors,30 who provided the janitorial
services to 631 Howard and 55 Hawthorne pursuant to sub-
contracts with West Bay.31 The record establishes that the
day janitor position was terminated on July 31, 1990. Asked
why, Bill Miranda stated, ‘‘At that time, [Rita Hernandez,
the JMA property manager for the two buildings] renegoti-
ated the contract,’’ deleting the day janitor position, ‘‘and the
new price took effect August 1.’’ Rita Hernandez contra-
dicted Miranda on these points, stating that the last day for
the day janitor was August 2, and such resulted from Mi-
randa informing her that, effective immediately, the day man
would be discontinued in order to forestall picketing activity
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 According to Hernandez, Miranda informed her of the dis-
continuance of the day man while informing her that the entire Mau-
rice Diaz janitorial crew had been replaced. ‘‘I believe [Miranda]
came down to the building and he said he had changed subcontrac-
tors, Maurice Diaz was a subcontractor, and he decided to change
because he wasn’t satisfied with their performance, and . . . he told
the day man to go home’’ in order not to ‘‘have a West Bay em-
ployee there, so that we wouldn’t get picketed during the day.’’ Her-
nandez readily agreed.
33 It is urged that, by seeking strike sanction to justify its conduct
at 631 Howard and 55 Hawthorne and at other locations involved
herein, Respondent disclosed the true secondary character of its con-
duct. Richard Leung conceded that Respondent sought the strike
sanction and that such was, in fact, granted. Leung further admitted
that Respondent issued leaflets and other documents, publicizing the
strike sanction. In one such document, G.C. Exh. 123, Respondent
announced a demonstration at the above buildings in order to protest
West Bay’s asserted firing of janitors and West Bay’s and its sub-
contractor’s, Maurice Diaz, asserted violations of child labor and
minimum wage laws. Toward the bottom of the document, Respond-
ent asked the questions, ‘‘Is JMA responsible?’’ and ‘‘Can JMA still
justify using law violating, non-union contractors, such as West
Bay?’’ There is no dispute that Respondent represented no employ-
ees of any employer working at either building at any time material
herein, including employees of West Bay or its subcontractors.
34 During cross-examination, Hernandez recalled that, on August 1,
some of the pickets were distributing a leaflet to people who walked
past them, and she identified G.C. Exh. 38(e), which is similar to
G.C. Exh. 123, as described above in fn. 33, as the document. How-
ever, she denied reading the paragraph, which asserts that Maurice
Diaz paid less than minimum wage and used underage children as
janitors, and did not recall asking Bill Miranda as to the truth of the
allegation. Hernandez denied any knowledge of a lawsuit against
Diaz.
35 Although her testimony was somewhat confusing, Rita Hernan-
dez testified that, during her conversation with Miranda on August
2 regarding Maurice Diaz, changing the maintenance crew, and dis-
continuing the use of a day janitor, the latter also suggested that sep-
arate entrances for neutrals and for West Bay and its subcontractors
ought to be established. Aware of what a reserved gate system en-
tailed, Hernandez agreed and, later that day, either using language
suggested by Miranda or JMA’s attorney, she wrote the gate lan-
guage on 11-by-18 inch sheets of paper and then she posted ‘‘tem-
porary’’ neutral entrance signs at the front entrances to 631 Howard
and 55 Hawthorne and a ‘‘temporary’’ primary entrance sign at the
at the two buildings.32 In any event, the day position was not
reinstated thereafter. As to janitorial equipment, Hernandez
testified that the janitors use vacuum cleaners, brooms, mops,
liquids, brushes, and other, standard janitorial equipment and
that such is stored in the buildings’ janitorial closets.
There is no dispute that Respondent engaged in picketing
at 55 Hawthorne and 631 Howard from Wednesday, August
1, through Friday, August 3, 1990. Rita Hernandez testified
that, on August 1, by facsimile transmission, Respondent sent
a letter, with attachments, to JMA. Said letter, signed by Roy
Hong, states:
We demand an immediate meeting with you to resolve
the disputes at 55 Hawthorne/55 Howard Building in
San Francisco. The illegal and unjust firings of the jani-
tors by your contractors, West Bay/Maurice Diaz, clari-
fies once and for all that your original decision few
months ago to replace the union contractor, which re-
sulted in the loss of job for 7 janitors, was a bad one.
We hold you, if not legally, then, certainly morally, ul-
timately responsible for the firings of the janitors few
months ago, and the recent firings. Your failure to re-
spond to this letter will force our actions to expand and
escalate.
The first attachment, to the letter, was a photocopy of a let-
ter, addressed to the San Francisco Labor Council and signed
by Roy Hong, requesting an unfair labor practice strike sanc-
tion against the two buildings, based on based on termi-
nations of employees by West Bay and Maurice Diaz after
Respondent had filed a petition for a representation election
with the Board, and informing the Council of Respondent’s
intent to engage in picketing at the two buildings.33 Shortly,
after she received copies of Respondent’s documents,
Leopoldo Abad, who is JMA’s concierge at 55 Hawthorne
and whose workstation is a desk in the lobby of that build-
ing, informed Hernandez that pickets were in front of 55
Hawthorne.
Thereon, Hernandez walked to 55 Hawthorne, arriving
shortly after 4 p.m. and observed approximately 40 individ-
uals, with, at least, 10 carrying sticks with cardboard attach-
ments, ‘‘marching in a circle’’ both inside the tiled front en-
trance area and on the public sidewalk. Some people were
blowing on whistles, one person was shouting into a bull-
horn, and one person opened a front door and blew on his
whistle. Wording on some of the cardboard signs read ‘‘West
Bay Unfair, Local 87’’ and, on others, read ‘‘West Bay on
Strike, Local 87.’’ Hernandez telephoned the San Francisco
police and, after a few minutes, officers arrived and, after
speaking to Hernandez, requested that the pickets move off
of the tiled area, which they did. Hernandez continued, stat-
ing that, at some point during the afternoon, a ‘‘majority’’
of the demonstrators moved to in front of the entrance to 631
Howard, with none remaining at 55 Hawthorne, and ‘‘they
were standing sort of strewed out in front of the front en-
trance and the construction entrance’’ on the sidewalk. She
added that she left her office at 7 p.m. and observed three
to five of the demonstrators, with just one picket sign, re-
maining in front of 631 Howard.34
As stated above, the next day, August 2, according to Her-
nandez, Miranda informed her that a day janitor would no
longer be provided for the two buildings in order to prevent
the continuation of picketing during workdays. Also, in this
regard and on the same day, presumably at the behest of
West Bay, its attorney, Rechtschaffen, drafted a letter, ad-
dressed to Richard Leung, stating that neither West Bay nor
JMA had recently fired any janitors at 631 Howard or 55
Hawthorne, that the services of a subcontractor (Diaz) had
been terminated, that, effective immediately, no employees or
its subcontractors would be at the buildings during the hours
2:01 a.m. through 6 p.m., that employees of West Bay’s sub-
contractors would only be in the buildings between 6 p.m.
and 2 a.m. each day, that employees and subcontractors of
West Bay will not be permitted to enter the buildings
through either of the main entrances, and that employees and
subcontractors of West Bay will only be permitted to enter
through the 124 Tehama Street entrance. Said letter was
hand-delivered to Respondent’s office that day, and Respond-
ent stipulated to its receipt. As set forth in the letter, neutral
and primary gate signs were posted by JMA at approximately
noontime on August 2.35 Later that day, utilizing picket signs
727SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
124 Tehama entrance by noon. Hernandez could not recall whether
a neutral gate sign was posted at the temporary construction en-
trance. She then ‘‘faxed’’ copies of the gate signs to JMA’s sign
company, which was instructed to print permanent signs, which were
eventually posted in November by the concierge, Abad. During di-
rect examination, Hernandez added that the neutral gate language
was ‘‘‘Neutral. No employees of West Bay and/or subcontractors to
use this door.’ And the reserve door at 124 Tahama said ‘Reserved.
To be used by West Bay and/or its subcontractors, employees
only.’’’ During cross-examination, when confronted with her pretrial
affidavit versions of the signs (the neutral gate signs were ‘‘Neutral
door—No employees of West Bay or its subcontractors to use this
door’’ and the primary gate sign stated, ‘‘This door reserved for
West Bay and its subcontractor’s employees only), Hernandez admit-
ted that the affidavit language was correct. Later, however, during
redirect examination, Hernandez reversed herself, stating that the
language on G.C. Exh. 39 was correct for the primary gate language
(‘‘Reserved Entrance—This Entrance Is Reserved For West Bay Em-
ployees Or Its Subcontractors Only’’) and G.C. Exh. 40 was correct
for the neutral gate language (‘‘Neutral Entrance—No Employees Or
Subcontractors of West Bay May Enter This Door’’). Notwithstand-
ing Hernandez’ confusion, Respondent offered no testimony con-
tradicting her, and there is no allegation, in the complaint allegations
as to 631 Howard and 55 Hawthorne, stating a reserved gate viola-
tion.
with the identical messages as the previous day, three to five
individuals picketed, on the public sidewalk, directly in front
of the front entrances to both buildings.
Notwithstanding the explicit language of the foregoing let-
ter as to the presence of janitors at 631 Howard and 55 Haw-
thorne, according to Rita Hernandez, arriving at her office
the next morning (August 3) at approximately 7 a.m., she ob-
served three to five individuals, standing on the public side-
walk in front of the entrance to 55 Hawthorne with two peo-
ple carrying picket signs reading ‘‘West Bay—Unfair—Local
87.’’ She added that, during the course of the day, the group
moved back and forth from that location to in front of the
front entrance to 631 Howard. Then, according to Hernandez,
at approximately 3:30 p.m., a group of 30 additional people,
with, at least, 10 carrying picket signs reading as stated
above and ‘‘West Bay—On Strike—Local 87,’’ massed in
front of 631 Howard. At first, a few were in front of the
front entrance with most standing ‘‘in front of the construc-
tion’’ entrance ‘‘but they were sort of milling around the
whole area.’’ Eventually, ‘‘they were walking up and down
the sidewalk in front of both entrances . . . in a cir-
cle. . . .’’ She continued, stating that the group of 30 people
remained in front of 631 Howard for ‘‘about half an hour,
45 minutes’’ and then they ‘‘just dispersed’’ without moving
to in front of the front entrance to 55 Hawthorne. Finally,
with regard to that day, although construction work was
scheduled that day, no construction workers reported for
work and, consequently, none of the scheduled work was
performed. While the record is unclear as to why no con-
struction workers reported that day, Respondent assumed
credit for the failure to report. Thus, in its Action Report,
dated September 1990, Respondent boasted that ‘‘the Labor
Council-sanctioned strike stopped construction at the building
as the construction workers honored the picket lines.’’
The record establishes that, 3 days later, on August 6,
JMA retained David Culver, then of the law firm Corbett and
Cane, to represent it in any matters involving Respondent
and that, shortly thereafter, during a telephone conversation
with Culver, Richard Leung accused one of West Bay’s jani-
torial subcontractors at 631 Howard and 55 Hawthorne of
having engaged in labor code violations, including paying
below minimum wage and no overtime, and of discharging
janitors because of their union organizing activities. David
Culver testified that, 2 or 3 days later, he met with Leung
and Roy Hong, and Respondent’s agents elaborated on their
allegations, stating that a Mr. Diaz, who was responsible for
supervising the work of the janitors, informed them they
were fired or laid off. In order to avoid a resumption of the
picketing, Culver responded that JMA ‘‘would not coun-
tenance’’ unlawful conduct and that he would investigate and
consider terminating the contract with West Bay if the alle-
gations were accurate. Subsequently, according to Culver,
while he had a series of telephone conversations with Leung
and Hong, he did not conduct an investigation as to the Diaz
allegations inasmuch as Respondent failed to provide specif-
ics in support. Unclear as to whether such occurred at the
above meeting, during a telephone conversation, or at a sub-
sequent meeting at the office of the San Francisco Labor
Council, according to Culver, Leung or Hong ‘‘told me that
[Respondent] was about to file a civil complaint that would
spell the allegations out in more detail’’ and ‘‘made it clear
to me . . . that they wanted JMA to entertain bids from and
to select, a union contractor to do the janitorial services at
those two buildings.’’ With regard to the matter of bids for
a new janitorial services contractor, Culver replied that JMA
would, indeed, consider union contractor bids and, if a bid
was competitive and the contractor would do as a good a job
as West Bay, JMA would consider entering into a contract
and terminating the contract with West Bay and that Re-
spondent’s dispute was with West Bay as it was the entity
which had contracted with JMA. Culver also recalled that the
subject of picketing first arose during this conversation but
was unclear about the context, recalling that he informed Re-
spondent’s representatives ‘‘that in the event that there was
any unlawful picketing at the buildings . . . we would file
a charge with the [NLRB] . . . and seek injunctive relief.’’
The record further establishes that Respondent’s represent-
atives had assured Culver that there would not be a resump-
tion of the picketing while Culver considered the allegations
against West Bay and whether or not to entertain bids for the
janitorial services contract at 631 Howard and 55 Hawthorne
and that Respondent specifically postponed any action
against JMA in those circumstances. Nevertheless, based on
General Counsel’s Exhibit 60(f), a ‘‘strike notice,’’ it seems
clear that, at least by August 24, Respondent was planning
to resume the picketing at the two buildings. On that day,
a Friday, Culver had a telephone conversation with Roy
Hong. According to the uncontroverted testimony of Culver,
who believed, at the time, despite Respondent’s assurances,
there was a serious risk that Respondent might resume its
picketing at 631 Howard and 55 Hawthorne at any moment,
Hong, who appeared to be quite angry, began by inquiring
if JMA was going to award the maintenance work at the
buildings to union signatory contractor, ISS, which, of
course, had been the janitorial services contractor prior to
West Bay and had recently submitted a new bid for the
work. Culver replied that the bid ‘‘was not competitive’’ and
that he doubted whether any union contractor could make a
bid at a price competitive with West Bay. Hong then ‘‘de-
manded to know’’ whether janitors, who had been laid off
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 Culver was uncertain if Hong said 6 a.m. tomorrow or 6 a.m.
on Monday.
37 The credibility of Culver is, of course, at issue herein, and he
was called as a witness, by Respondent, and questioned concerning
his contemporaneous notes of his conversation with Hong. In this re-
gard, it is noted that Culver’s asserted question, as to what it would
take for Respondent not to resume picketing, is not found in his
notes; however, according to Culver, Hong’s reply is at the top of
the second page—‘‘a deadline when you are going to go union
. . . .’’ Asked what prompted his question, Culver replied that
‘‘Hong had told me that . . . the Union was going to picket at both
entrances or all entrances of the building and that the Union would
begin picketing in the morning’’ and his belief that Hong seemed
‘‘so angry’’ he might disclose his ‘‘unlawful motive.’’ Culver reiter-
ated that Hong threatened to picket ‘‘at least two times,’’ with the
first being ‘‘immediately in response to my notification to him that
we would be instituting a reserved gate system.’’ This, however,
contradicted Culver’s direct examination, as set forth above, that the
threat to picket came before he mentioned the reserved gate system.
Further, asked why the alleged first threat is not found in his notes,
Culver averred ‘‘you can’t write down everything that occurs in a
telephone conversation like that.’’ Finally, in this regard, Culver did
state, in his pretrial affidavit that he was twice threatened with pick-
eting by Hong during their conversation and that the initial threat
came after Culver mentioned the reserved gate system, which would
be in place at the two buildings.
38 While counsel for Respondent claimed that Hong was no longer
employed by Respondent and was no longer in San Francisco, there
is no evidence that he was unavailable to respond to a subpoena or
that Respondent even attempted to serve him.
39 Three of the men wore baseball caps, bearing the name ‘‘Local
87’’ on the front.
in July or August, would be reemployed by West Bay, and
Culver responded that he had urged West Bay to do so when
openings occurred but that he really had no ‘‘control’’ over
West Bay’s employment practices. Culver then gave Hong
some information, which had been requested, by Respondent,
regarding Maurice Diaz. At that point, Hong ‘‘told me that
the union was going to resume picketing the following work
day. . . . on Monday morning’’ as ‘‘we had not followed
through on the things that we said we were going to do.’’
In response, Culver told Hong ‘‘that a reserve gate system
would be in effect. That the Hawthorne Street . . . entrance
. . . would be reserved for use by West Bay Building Main-
tenance and all of its employees and everyone that it was
doing business with. And that they would not be allowed to
use any other entrance . . . .’’ Continuing, Culver told Hong
‘‘that there would be no janitorial employees and no rep-
resentatives of West Bay or any subcontractors doing busi-
ness with it present at the premises except for the hours of
6:01 p.m. to 2 a.m.’’ Angrily, Hong replied that the problem
was West Bay’s failure to employ the janitors, and ‘‘for
JMA to change its contract from West Bay to a union con-
tractor’’ and that the earlier reserved gate system had been
tainted, with West Bay personnel using the other entrance,
and that, therefore, ‘‘they would be picketing at all entrances
to the two buildings.’’ To this, Culver replied that JMA
would set up a different reserve gate system and that Re-
spondent would be required to honor it and at the correct
times. Then, according to Culver, he asked ‘‘what it would
take to prevent a resumption of the picketing,’’ and ‘‘Hong
told me that it would take an agreement on JMA’s part to
go union.’’ Culver responded that JMA had no control over
West Bay and wouldn’t sign with a contractor ‘‘simply be-
cause that contractor was union’’ and added that, with the re-
served gates, any picketing other than at the Hawthorne
Street entrance and at the time West Bay was present, would
be unlawful. Replying, Hong said that the union would be
there at 6 a.m.36 to resume the picketing.37 Hong was not
called as a witness, by Respondent38 and, consequently,
failed to deny the occurrence of or substance of this con-
versation.
The record discloses that Respondent had, in fact, planned
to resume its picketing at 631 Howard and 55 Hawthorne on
Monday, August 27, 1990, but that such was cancelled.
Thus, General Counsel’s Exhibit 126 is an ‘‘Urgent Notice,’’
published by Respondent, stating ‘‘STRIKE SCHEDULED
FOR MONDAY, AUGUST 27, 1990’’ at ‘‘the building lo-
cated at 55 Hawthorne/631 Howard Streets against West Bay
for violating the Child Labor Law, Minimum Wage Law,
and National Labor Relations Act’’ and General Counsel’s
Exhibit 128 is a notice, apparently published on August 27
by Respondent, stating ‘‘STRIKE AVERTED’’ and ‘‘The
strike, scheduled for today at 55 Hawthorne/631 Howard
building, was put off . . . as a result of a commitment by
JMA to give responsible contractors a chance to clean the
building.’’ What evidently occurred, according to Rita Her-
nandez, is that, on the advice of its attorney, JMA agreed to
accept bids for janitorial work at the two buildings and, in
order to facilitate matters, received a list of union signatory
contractors from Respondent. Subsequently, during Septem-
ber and October, she had several telephone conversations
with either Roy Hong or Linda Kahn, regarding the bidding
process. Notwithstanding whatever commitment may have
been made to Respondent by JMA, Hernandez concededly
gave evasive answers to Respondent’s agents and never can-
celled the West Bay janitorial services contract. Thereafter,
she received a letter, dated October 30, from Roy Hong, in
which Hong expressed Respondent’s concern that ‘‘the mu-
tual agreement’’ to hire a ‘‘responsible union contractor’’ to
clean the two buildings had been ‘‘jeopardized’’ by JMA and
Respondent’s ‘‘hope’’ that the matter could be resolved
‘‘peacefully.’’ In response, JMA’s attorney wrote a letter to
Hong, dated November 5 and stating that there had never
been any agreement to hire a union contractor and that JMA
had decided to continue to award the janitorial maintenance
contract at 55 Hawthorne and 631 Howard to West Bay.
With matters in this posture, Leopoldo Abad, the con-
cierge for JMA at 55 Hawthorne and whose station is a
lobby desk, testified that, at approximately 3:30 p.m. on
Wednesday, November 7, he observed a pickup truck stop at
the curb in front of the building and ‘‘about 12 persons,
men39 and women, walked up to the truck and pulled flags
and leaflets . . . out from the truck.’’ A woman, who the
others referred to as ‘‘Linda’’ or ‘‘Spike’’ and who the wit-
ness identified as being the same person as in a photograph
of Linda Kahn, held a bullhorn and walked toward the lobby
doors, ‘‘shouting the words ‘West Bay out, JMA Liars, JMA
Unfair,’’’ and the others, in response, chanted with her while
holding their flags up and marching back and forth on the
tile entry way area. Abad added that the flags were red with
the words, ‘‘Justice for Janitors,’’ printed on them. Abad tes-
tified further that, as the demonstration continued, the num-
ber of people marching increased to approximately 40 people
with almost all carrying the red flags, and that the group
729SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
40 Abad identified G.C. Exh. 47 as the leaflet distributed that after-
noon. Pink in color, it stated, in part, ‘‘West Bay is being sued for
wage and hour, overtime, and child labor violations. Local 87 is de-
manding a reputable union contractor clean the buildings. We de-
mand decent wages, and health benefits. Local 87 may have to go
on strike again if JMA continues to refuse to resolve this dispute.
We’ll keep you informed.’’
41 Notwithstanding the proximity of the demonstrators to the door
and whatever difficulty they presented to those entering or leaving
the building, ‘‘about two dozen’’ people entered the building and
‘‘alot’’ left the building during the course of the demonstration.
42 During cross-examination, Abad stated that the janitors normally
arrived for work ‘‘around’’ 5 p.m., with such being their regular
start time. Also, Abad initially testified that the janitors only entered
through the 124 Tehama entrance but, on being confronted with his
pretrial affidavit, admitted that ‘‘sometimes the West Bay employees
enter the building through the front lobby doors.’’
43 Victor Krasney, Koret’s building services manager, testified that,
after West Bay bid a lower price than American, he ‘‘informed’’
American of its ‘‘high ‘‘ price and was told that American could re-
duce its price, ‘‘but we had to do it at the expense of service.’’
Eventually, American did offer a reduced bid rate, but, after discus-
sions with other janitorial contractors, Koret determined ‘‘we were
paying too much.’’
44 The contract was for a term of 1 year with automatic renewal
‘‘if we don’t do anything.’’
45 Linda Kahn was not called as a witness by Respondent, and,
therefore, Krasney’s testimony was uncontroverted. There is no evi-
dence that Kahn was unavailable to testify at the trial.
continued chanting in unison with Kahn and marching in a
circular pattern over ‘‘almost the entire’’ tiled area. Gradu-
ally, according to Abad, the marchers moved closer to the
front doors so that ‘‘they were marching back and forth’’ no
more than 2 feet from the doors. Abad also observed the
demonstrators distributing leaflets40 to people who were en-
tering or leaving the building. Describing the effect of the
marching on the latter persons, Abad stated, ‘‘those people
. . . had to squeeze their way around the group of 40’’ and
‘‘it was very hard to open the doors,’’ as they open outward
and ‘‘once you push the door you might hit . . . some of
the people from the group.’’41 After a while, Abad went out-
side, approached Kahn, and asked her to confine the march-
ing to the public sidewalk. She ignored Abad, and, as a re-
sult, he telephoned the police department for assistance.
Shortly thereafter, officers arrived and spoke to Kahn, who
complied moving to the sidewalk along with the marchers.
Thereon, the group of 40 demonstrators continued their cir-
cular marching and chanting on the public sidewalk until the
demonstration ended at 5:30 p.m.42 Respondent admitted re-
sponsibility for the November 7 demonstration, and Abad
was uncontroverted as to what occurred.
5. Case 20–CC–3177
Koret, which manufactures women’s apparel, maintains its
main office in a building, which is located on Mission Street,
between Second and New Montgomery Streets, in San Fran-
cisco. The building, which is completely occupied by Koret
employees, is six stories high; the front door, which is 5 feet
in width, opens directly on to the public sidewalk along Mis-
sion Street; and the back entrance, which opens to Minna
Street and has a separate address of 110 Minna, is comprised
of two doors—an 11-1/2-foot wide roll-up door, through
which supplies are received and materials are shipped and,
next to it, a so-called man door, through which people enter
and exit the facility—which open into the shipping and re-
ceiving department. Inside the building, Koret maintains its
corporate offices and various departmental offices including
production, engineering, administration, and design. Also,
Koret maintains a small production area in the building in
which 25 employees, who are represented by International
Ladies Garment Workers Union Local 101 (ILGWU),
produce Koret’s sample product line. These employees enter
and exit the building through the front entrance, and they
work from 8 a.m. until 3:45 p.m. each day. Koret employs
no janitorial employees and has never had a collective-bar-
gaining agreement with Respondent, nor has the latter ever
demanded recognition from Koret as the bargaining agent for
any of Koret’s employees.
The record discloses that, as of December 31, 1990, Koret
had contracted with American Building Maintenance (Amer-
ican) for janitorial services at its building for, at least, 12
years and that American was signatory to a collective-bar-
gaining agreement with Respondent. American provided two
janitors, both of whom worked for Koret ‘‘for quite a while’’
and whose work hours were 6 p.m. until midnight, to clean
the Koret facility. Richard Partida, Koret’s vice president for
personnel and labor relations, testified that Koret’s budgetary
procedures require different departments to place their serv-
ice contracts out to bid each year in order to find vendors
who will provide the same levels of service at reduced costs;
that, accordingly, the building janitorial maintenance contract
was placed for bidding in 1990; and that, at the conclusion
of the bidding period, ‘‘the recommendation was made by
the building services manager to contract with West Bay be-
cause of the cost savings.’’43 Thereafter, Partida met with
‘‘Greg or Craig’’ Dellanini of West Bay, and they negotiated
a janitorial services contract for West Bay to provide jani-
torial services at the Koret building.44 The effective date of
the contract was to be January 2, 1991. The record further
discloses that, between January 2 and 15, 1991, the janitors’
working hours were 6 p.m. until 1 or 2 a.m.; that their work
consisted of ‘‘general clean up of the building, all six
floors’’; that the janitors’ entrance was the ‘‘man door’’ at
the rear of the building; that the janitors’ equipment included
mops, vacuums, and all normal equipment; and that such is
stored in the building during the days.
Victor Krasney testified that, on Friday, December 28,
1990, he received a telephone call from a woman, identifying
herself as Linda Kahn. She asked if Koret was changing jani-
torial firms, and Krasney answered affirmatively. Later that
day, Krasney telephoned Kahn at Respondent’s office, and,
according to the former, the conversation immediately turned
to West Bay, with Kahn asking if he knew that West Bay
was nonunion. Krasney said he was unaware of that fact, and
Kahn said she would ‘‘fax’’ some materials to Koret regard-
ing West Bay. After being refreshed with his pretrial affida-
vit, Krasney was also able to recall, with regard to the con-
versation, that ‘‘there was . . . reference to that she would
start picketing on December 31.’’45 Krasney added that he
told Richard Partida that Kahn would send some materials to
Koret and she said ‘‘she would have to start a picket at our
building.’’ Later that day, Linda Kahn did send, by facsimile
machine, a memorandum, with attachments, to Koret. In her
memorandum, Kahn stated that Respondent had a pending
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
46 Edward Stanko, who is the administrative assistant for Partida,
testified that he transmitted the letter, G.C. Exh. 57, by facsimile
machine and that it was received by a facsimile machine, which, the
record reveals, was utilized by Respondent.
47 Clearly, Respondent had previously decided to commence some
sort of conduct against Koret. Thus, as the record reveals, on receipt
of Partida’s letter on January 2, Respondent sought and was granted
strike sanction against Koret by the San Francisco Labor Council.
Evidently, such was done prior to Partida’s telephone call.
48 Victor Krasney testified that the pickets arrived in ‘‘late after-
noon’’ and remained, on the sidewalk and the street in front of the
Koret building, until approximately 6 p.m.
49 G.C. Exh. 58 is a handbill distributed by the pickets, that after-
noon, to workers as they departed from the Koret building. On Re-
spondent’s letterhead, the document states that West Bay was ‘‘noto-
rious’’ for subcontracting to employers who violate child labor, min-
imum wage, and overtime laws. The leaflet continued, appealing to
workers to inform Koret that they support Respondent.
50 Partida testified that just one rear entrance sign was posted on
January 3 but that, subsequently, two such signs were posted at the
rear entrance, with one being ‘‘on the man door itself.’’ He added
that, inasmuch as both rear doors constituted a single entrance, jani-
tors could use either door to enter the building. Contrary to Partida,
Krasney recalled that two signs were posted at the rear entrance on
January 3—‘‘one was on the man door . . . about eye level. . . .
And the other one was immediately to the left of that . . . on the
wall.’’ Further, in his pretrial affidavit, Krasney recalled that the
wording on the front entrance sign was slightly different than that
on G.C. Exh. 62; however, he noted that he was asked to recite the
wording of the sign from memory, without having the sign before
him.
lawsuit against West Bay for wage and hour and child labor
law violations; that ‘‘as an Organizer with Local 87, I cannot
let Union-cleaned buildings go non-union’’; that ‘‘we can
work together to find a Union contractor who can meet
Koret’s needs’’; and that ‘‘we need to resolve this before the
Union workers lose their jobs.’’
Richard Partida confirmed that Krasney informed him of
his conversation with Kahn and testified that, on January 2,
1991, after speaking to a representative of the ILGWU, he
drafted a letter, addressed to Linda Kahn and dated that same
day, and had it sent to Respondent by facsimile machine.
Partida stated, in the letter, receipt of which was not denied
by Respondent,46 that Koret would not revoke the decision
to contract with West Bay; that no representatives of West
Bay would be in Koret’s building ‘‘during the day’’; that
West Bay’s janitorial services would start at 6 p.m. each day;
and that the West Bay employees’ entrance would be the rear
entrance to the Koret building—110 Minna. Partida further
testified that, at approximately 2 o’clock in the afternoon, he
followed his letter with a telephone call to Respondent’s of-
fice and that he spoke to an individual, identifying himself
as Richard Leung. According to Partida, whose testimony
was not denied by Leung, ‘‘I told him that I was calling be-
cause someone from his office [informed] . . . us that we
were going to be picketed. And I asked him if he had re-
ceived my letter . . . .’’ Leung said, yes, and Partida said
he ‘‘was calling because of the concern of the threat of pick-
ets, but that I was also calling because [the ILGWU rep-
resentative] had urged me to call him to arrange a meeting.’’
Partida continued, saying that Koret had contracted with
West Bay and was within its rights to do so and that it was
the result of a normal business decision. Accordingly, Partida
‘‘couldn’t see any reason why . . . Local 87 should . . .
threaten [Koret] with pickets.’’ Leung replied that Koret had
‘‘fired’’ two janitors, that it had to reverse its decision and
‘‘get them back in the building working,’’ and ‘‘that he was
prepared to do whatever he had to do in order to make that
happen.’’ Leung added that, if Koret did not reverse the deci-
sion, ‘‘pickets would show up and Koret would have prob-
lems with the ILGWU.’’ Partida said that Leung had no
‘‘beef’’ with Koret, that the janitors were not Koret’s em-
ployees, and that Koret had no control over them. He added
that Leung should speak to American and West Bay and that
Koret was neutral. Continuing, Partida asserted that Koret
had done nothing illegal and that Leung was ‘‘wrong’’ in
threatening to send pickets. Leung replied, saying ‘‘‘we’re
prepared to do whatever it takes. If you don’t reverse your
decision, the pickets will show up. . . . We will picket your
building.’’’47 At that point in the conversation, according to
Partida, someone entered his office and said that a pickup
truck had just arrived in front of the building and many peo-
ple, carrying picket signs stating ‘‘On Strike,’’ were ‘‘form-
ing’’ outside the building.48 Partida, who had asked Leung
to hold the line while the individual reported on what was
occurring outside,49 returned to Leung and said he saw no
need to continue the conversation while Leung engaged in
such a ‘‘bad tactic.’’ Leung suggested that they meet to dis-
cuss the matter, but Partida refused.
In view Leung’s threats and the picketing of the previous
day, on January 3, Koret established separate entrances for
the use of the West Bay janitors and for all other employees
and persons. The record establishes that both Partida and
Krasney worked on the wording of the signs, used to dif-
ferentiate the entrances. According to Partida, once the sign
language had been drafted, he gave the draft language to his
administrative assistant, Stanko, who typed out the language.
Thereafter, Krasney reproduced and enlarged the size of the
type for posting and posted the designation signs that after-
noon. Partida identified General Counsel’s Exhibit 61, which
reads ‘‘KORET OF CALIFORNIA—DELIVERY AND
JANITORIAL ENTRANCE ONLY!!!,’’ as ‘‘a sign that we
made up to be posted at the back entrance to our building
at 110 Minna’’ and General Counsel’s Exhibit 62, which
reads ‘‘THIS ENTRANCE FOR KORET EMPLOYEES
AND CUSTOMERS ONLY!!! ALL DELIVERIES AND
JANITORS PLEASE USE REAR ENTRANCE AT 110
MINNA STREET,’’ as the sign which ‘‘identifies the front
entrance, the sign would be posted at the front.’’ Partida con-
tinued, stating that the ‘‘man’’ door and the roll-up door to-
gether comprise the rear entrance and that, consequently, the
janitorial employees and delivery sign was posted in the 6-
to 12-inch space which separates them.50 As to the front en-
trance sign, Partida testified that it ‘‘was posted on the glass
doors, the glass double doors that are the entrance to our
building at 611 Mission Street. Finally, according to Partida,
the entrance designation signs remained posted through Janu-
ary 16.
Also, on January 3, evidently concluding that a meeting
would be of some value, Partida telephoned Leung, and they
scheduled a meeting for 3:30 p.m. at the Koret building. Ac-
cording to the uncontroverted testimony of Partida and
Krasney, such a meeting occurred that afternoon. Present in
Partida’s office were Krasney, Partida, Scott Rechtschaffen,
731SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
51 Krasney’s recollection of what was said was corroborative of
Partida on some points but contradictory on others. According to
Krasney, ‘‘the conversation was more or less based on the fact that
the union was asking us to reconsider our [choice] of janitorial
firms. . . . Leung said . . . that we should reconsider having a non-
union company doing our janitorial.’’ Partida said that Koret had
changed for many reasons, with the ‘‘main factor’’ being price.
Leung said he could get other people and asked for an opportunity
for them to bid at the same price as West Bay. Partida said that
Koret had already decided on West Bay and that was the ‘‘best
thing’’ for it. At that point, testified Krasney, Hassan became ‘‘agi-
tated,’’ said they were making no ‘‘headway,’’ and mentioned get-
ting the pickets back. Asked which of Respondent’s representatives
mentioned picketing, Krasney again said it was Hassan and ‘‘I don’t
believe Mr. Leung did.’’ He added that Hassan mentioned picketing
‘‘probably two, possibly three times.’’
52 One day during the picketing—Partida was not certain it was
January 4—he ‘‘observed a gentleman dressed in a business suit car-
rying a briefcase and, not being able to pass through this oblong
marching circle of picketers . . . paused momentarily waiting for
. . . an opening so that he could approach our doors, and no one
did that.’’
53 Krasney testified ‘‘I know that the pickets came, usually from
two-thirty, three in the afternoon. One day out of those days they
. . . did come early, or late morning . . . I can’t recall which day
it was.’’
Leung, and Yehya Hassan. According to Partida, he began,
saying he felt it was ‘‘improper’’ to be threatened with pick-
eting when the ILGWU and its members would not cross,
but he was willing to listen to Respondent’s concerns and
any proposals for remedying the situation. He added that he
thought it ‘‘bad form’’ to have Leung ‘‘threaten’’ picketing
during previous day’s telephone conversation and then have
pickets show up ‘‘anyway.’’ Leung replied that he was there
to convince Koret that it had ‘‘to reverse’’ its decision to use
West Bay, and he ‘‘said that if we did not cancel the con-
tract with West Bay immediately, and recontract the services
with [American] . . . there would be continued picketing
. . . with as many people as it took to get us to change our
minds.’’ Krasney then spoke, saying he couldn’t understand
why Respondent would take such action, and Leung said
‘‘that the two people that had worked in our building were
now without a job and that Koret had fired them and re-
placed them with nonunion workers. Partida asserted that he
had had no ‘‘control’’ over who did the janitorial work; that
American had terminated the janitors—not Koret; and that
Respondent’s quarrel was not with Koret but with American.
He then reiterated that threatening Koret was just ‘‘im-
proper.’’ Leung said that he could resolve the matter and, if
American was unsatisfactory, offered to find another union
contractor for Koret. Partida replied that Koret had the right
to select its own vendors; that such was done after cost con-
siderations; and that Koret had taken bids and would not take
more bids limited to a list of contractors provided by Leung.
The latter said ‘‘he could not be responsible for what would
occur and that if we didn’t change our minds . . . we were
going to be the cause of whatever action [Respondent] had
to take.’’ Partida then reiterated Koret’s position, and the
meeting ended.51 Leung failed to deny the occurrence of or
the substance of this conversation, and Respondent did not
call Hassan as a witness and offered no explanation for fail-
ing to do so.
The record establishes that picketing at the Koret building
resumed the following day and continued on January 7, 8,
10, 11, and 14, 1991. With regard to Friday, January 4,
Partida testified that, in the afternoon, ‘‘somewhere around
3:00 or 4:00’’ at a time when no janitors were working, be-
tween 20 and 25 people, with half carrying sticks with at-
tached cardboard placards, bearing the message ‘‘On
Strike—Local 87, SEIU,’’ gathered in front of Koret’s build-
ing on Mission Street on the sidewalk. After a while, the
picketers, who were no more that 6 inches apart, began to
move ‘‘in a formation, a circle, an oblong circle, in front of
our building and the circle extended beyond our front door
to beyond our front window.’’ As the pickets marched, one
of them, a man, shouted through a bullhorn into the building
whenever he walked past the front door, and the other pick-
ets chanted and yelled vociferously. Partida further testified,
with regard to ingress to and egress from the building during
the picketing this day, that many employees hesitated to at-
tempt to go out the front entrance, with most going out
through the rear entrance and just two or three employees
leaving through the front and having to force their way
through the crowd.52 Finally, asked if he could recognize any
of the pickets on January 4, Partida stated that Yehya Hassan
and Linda Kahn, to whom he spoke on a later occasion, were
present that day. The picketing continued, in front of the
building, until approximately 5 p.m.
Victor Krasney also testified with regard to picketing on
January 4, stating that such began in either the ‘‘early after-
noon’’ or ‘‘late morning, perhaps’’53 and was conducted both
at the front entrance on Mission Street and at the rear en-
trance on Minna Street. Continuing, he testified that, at the
front entrance, ‘‘there was something on the order of 30, 35
people’’ with a ‘‘little less than half’’ carrying picket signs
(cardboard placards attached to wooden sticks), reading ‘‘ON
STRIKE, SEIU LOCAL 87’’ and ‘‘HUELGA, LOCAL 87’’;
that, at first, the pickets ‘‘kind of milled around . . .’’; and
that, then, all the pickets bunched close together and began
‘‘marching in a circle, chanting, and kind of yelling. One
person had a bullhorn [and] was shouting into the door . . .
to the building.’’ As to what occurred at the rear entrance,
according to Krasney, there were ‘‘just a few picketing,’’ no
more that four; ‘‘each carried a placard similar to the ones
in front—‘‘ON STRIKE, LOCAL 87, SEIU’’; and the [pick-
ets] were just kind of milling around at the back door. They
were kind of leaning against [a] car,’’ and, ‘‘on one of the
days . . . they brought out a couple of folding chairs and
were sitting there’’ with the picket signs. As to whether in-
gress to or egress from the building was ever inhibited by
the picketing, Krasney testified that many employees chose
to leave through the rear entrance and that, those who did
exit through the front door, were forced to ‘‘dodge’’ the
pickets, who ‘‘didn’t make an effort to let the people out.’’
Also on January 4, Krasney observed one person attempt to
enter the building through the front entrance and have a
‘‘difficult time’’ in doing so. Finally, as did Partida, Krasney
testified that no janitors were working at the time of the
picketing and that West Bay was never identified on the
picket signs as the struck employer.
Picketing resumed on Monday, January 7. According to
Partida, about 11:30 in the morning, he observed picketing
at the back entrance—‘‘there were about two or three people
with picket signs and they were positioning themselves in
front of our man door and the roll-up door . . . .’’ Unable
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
54 According to Partida, while he did not observe anyone entering
or leaving through the rear entrance, during the time of the picketing
there, he did receive reports of a UPS delivery person refusing to
make a delivery and of the Golden Gate Garbage Service refusing
to pick up Koret’s trash. He confirmed the latter by the fact that gar-
bage seemed to be piling up in the trash area.
to read the entire wording of the signs, Partida was able to
see the words, ‘‘On Strike.’’ Later, at approximately 3
o’clock in the afternoon, Partida testified, a group of 20 to
25 pickets gathered in front of the Mission Street entrance.
Several carried picket signs, reading ‘‘On Strike, Local 87,’’
and the entire group engaged in the same conduct as on the
previous Friday until they departed, along with the rear pick-
ets, at 5 p.m. Again, according to Partida, no janitors were
working at the time of the picketing, and no sign identified
West Bay as the struck employer. As did Partida, Krasney
testified that picketing occurred at both the front and rear en-
trances to the building on January 7; that the conduct of the
pickets, at both entrances, was identical to what occurred on
January 4 except that, on Monday, at the front entrance, the
nonplacard holding demonstrators ‘‘had flags . . . just a
short stick with red flags,’’ bearing the words ‘‘Justice for
Janitors.’’ He added that, on one day, a female picket, who
was sitting in a car at the rear entrance, introduced herself
as Linda Kahn and that a picket sign was near the car.
Krasney further testified that, on Tuesday, January 8, picket-
ing identical to that described above, occurred at the front
and rear entrances to the building.
Although no evidence was adduced with regard to January
9, there is record evidence that picketing again occurred on
Thursday, January 10. On that day, according to Richard
Partida, he first observed picketing at 1 p.m. at the rear en-
trance to the Koret building. Two or three individuals, carry-
ing picket signs, bearing the message ‘‘On Strike, Local 87,
SEIU,’’ were ‘‘standing in front of the roll-up door,’’ and the
remained at that location ‘‘the rest of the afternoon.’’ Then,
at approximately 3 p.m., testified Partida, pickets appeared at
the front entrance to the building on Mission Street. There
were between 20 and 25 persons, most carrying the identical
picket signs as borne by the pickets at the rear entrance and
as carried at the front entrance on the earlier occasions, and
they engaged in the same behavior as on prior days—march-
ing in their tight, circular formation in front of the front en-
trance. Also, on this day, according to Partida, a bicycle mes-
senger, who was inside the building at the time of the picket-
ing, exited by the front door and was forced to ‘‘shove’’ his
way through the demonstrators to reach his bicycle. Once
again, there were no janitors working while the picketing oc-
curred, and West Bay was not identified as the struck em-
ployer on the picket signs.
Picketing, at the Koret building, occurred again on Friday,
January 11. As described by Partida, at 10:30 that morning,
he noticed two women, ‘‘sitting in metal fold-up chairs . . .
in the opening of the roll-up door.’’ They were seated, facing
the street, and between their legs were picket signs, reading
‘‘On Strike, Local 87, SEIU.’’ Partida testified that he
walked outside, approached the women, and asked them to
leave ‘‘because they were blocking our entrance way.’’ Nei-
ther replied, and Partida asked their names. One said her
name was Linda Kahn and asked, ‘‘‘Who the fuck are
you?’’’54 Also, that day, Partida observed picketing outside
the front entrance to the building. Such entailed the same
conduct as the preceding days, including carrying picket
signs with the same words, ‘‘On Strike, Local 87, SEIU.’’
Again, no janitors were inside the building during the picket-
ing, and West Bay was not identified, on the picket signs,
as the struck employer. Finally, according to Partida, picket-
ing occurred, at the Koret building, on Monday, January 14.
On this occasion, commencing at approximately 3 p.m., it
was confined to the front of the building and, in all aspects,
was conducted in an identical manner as the previous 5 days.
As stated above, Respondent admitted responsibility for all
picketing at the Koret facility and no witnesses controverted
any portion of the foregoing testimony as to what occurred.
6. Case 20–CC–3189
The record establishes that IMA is a wholly owned sub-
sidiary of IMA Financial Corporation and is a real estate
broker, including leasing and managing commercial prop-
erties. In its latter function, IMA collects rents, pays bills,
and contracts with service vendors. At all times material
herein, among other properties, IMA has been the property
manager for buildings located at 260 California Street, San
Francisco (260 California), which is owned by Sakti Inter-
national, and at 230 California Street, San Francisco (230
California), owned by 230 California Associates. The record
further establishes that IMA’s office is located in the former
building; that Richard Barsotti is the executive vice president
of IMA; and that Catherine Carmichael is an assistant prop-
erty manager for IMA and responsible for managing 230
California Street and 260 California Street.
The record reveals that 230 California is a six-story com-
mercial office building, with a penthouse; that the front en-
trance doors are separated from the public sidewalk by a
foyer, which is 8 to 10 feet wide; and that the entrance to
the foyer is 5 feet wide. Tenants include the restaurant,
L’Entecote de Pari Aussi, Story and Green (investment coun-
selors), Gateway To Travel, Pacific Heights Medical Group,
and Rado’s Deli. The record also reveals that 260 California
is a 12-story commercial office building; that the front en-
trance opens directly onto the public sidewalk along Califor-
nia Street; that the doorway is 10 feet wide and comprised
of two glass doors; and that, in front of the doors are two
planters, 3-1/4 feet in diameter, which are 9 feet apart, 7 feet
from the doors and 3 feet from the curb. The planters are
the property of IMA. Inside the front doors is a lobby area
in which a security guard is stationed. Tenants of 260 Cali-
fornia include IMA, Citibank, CitiCorp Savings, and the La-
dies Home Journal. As to the location of the buildings on
California Street, it appears that they are only 85 feet apart
on the same side of the street.
The record establishes that neither IMA nor any of the ten-
ants at either 230 California or 260 California have employ-
ees who perform janitorial work; that IMA has never been
party to a collective-bargaining agreement with Respondent;
and that Respondent has never demanded recognition from
IMA as the collective-bargaining representative of any of its
employees. Notwithstanding the foregoing, as it is contrac-
tually obligated to provide janitorial services for tenants,
prior to December 1, 1989, IMA contracted with Golden
State Janitorial Services (Golden State), which is party to a
collective-bargaining agreement with Respondent, for the
performance of janitorial services at 230 California and at
260 California Street; an individual named Ali Abdullah was
733SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
55 The relationship, if any, between Complete and IMA is a major
issue herein and will be explored in detail infra.
56 The record warrants inferences not only that IMA was aware
that potential problems with Respondent could result from awarding
the janitorial contract for 260 California to a nonunion contractor but
also that IMA sought to avert any such potential problems. Thus, ac-
cording to Richard Barsotti, prior to reaching a final decision, he had
a series of conversations with Roy Hong during which he told Hong
that ‘‘the cost of the services that were being done at the building
were getting outside of my economic reach, and was there anything
we could do about it.’’
57 As the banner was stretched between the two large planters, ac-
cording to Carmichael, people were unable to walk, between the
planters, from the curb to the front doors.
employed by Golden State as a janitor at 230 California. Al-
though not entirely clear in the record, it appears that
Abdullah obtained a business license to work under the name
Complete Janitorial Service (Complete) and submitted a
lower bid price, based on nonunion costs, for the janitorial
work at 230 California and, consequently, was awarded the
janitorial contract for that building by IMA sometime in
1988, 1989, or 1990.55 Meanwhile, Golden State continued
as the janitorial contractor for 260 California through May
16, 1991, providing one daytime janitor, whose hours were
6:30 a.m. through 3 p.m. and whose duties included answer-
ing tenant requests and cleaning the front of the building,
and two night janitors, whose hours of work were 5:30 p.m.
until 1 a.m. and whose job duties included cleaning and dust-
ing all tenant suites, cleaning bathrooms, and vacuuming car-
peted areas and the elevators. Although the circumstances are
unclear in the record, at some point prior to May 14,
Abdullah was awarded the janitorial contract for 260 Califor-
nia,56 and, on May 14, Richard Barsotti sent a letter to Gold-
en State, terminating its 260 California janitorial effective
after the evening shift of May 16.
The effective date of the janitorial maintenance contract,
between IMA and Abdullah, was May 17, 1991, and the
record evidence is that, while vaguely defined between the
parties, Abdullah was scheduled only to provide a night jani-
torial crew at 260 California, with said crew reporting after
6 p.m. and working until 1 or 2 a.m. Although the contract
provided for such, no day janitor was to be provided; accord-
ing to Catherine Carmichael, Ali Abdullah agreed to perform
any necessary day work but after 6 p.m. Questioned as to
why the day janitor position would be eliminated, Car-
michael opined that ‘‘they didn’t want to be hassled by the
union.’’ Presumably for the same reason, on May 14,
Barsotti wrote a letter to Richard Leung, receipt of which let-
ter was admitted by Respondent, stating that, effective May
17, 1991, no janitorial service would be provided during the
day at 260 California; that all janitorial functions would be
performed between the hours 6 p.m. and approximately 2
a.m.; and that at no other time would janitors be present in
the building. The next day, Wednesday, May 15, Barsotti had
a telephone conversation with Richard Leung. According to
Barsotti, ‘‘Mr. Leung wanted to know if there was anything
that could be done to dissuade our decision so that union
janitors could continue . . . at 260 California.’’ Barsotti ex-
plained to Leung that he recently had a series of conversa-
tions with Hong about the cost problems involved and that
a decision had been made and there was nothing further to
discuss. Leung ‘‘persisted,’’ asking the price of the new con-
tract and stating that he could improve on the Golden State
price with another union contractor. ‘‘And the conversation
concluded with Mr. Leung letting me know that this was not
the end of it.’’ Later that day, Barsotti received several docu-
ments, General Counsel’s Exhibits 85(a) through 85(f), trans-
mitted by facsimile machine, from Respondent, and, accord-
ing to a cover letter, the enclosed material consisted of ‘‘cop-
ies of leaflets that [Respondent is] planning to pass out at the
scheduled events.’’ One document, General Counsel’s Ex-
hibit 85(e), entitled ‘‘City Wide Alert,’’ stated that two IMA-
managed buildings, one of which was 260 California, were
going nonunion and that IMA had made poor investments
and claimed it had no choice but to take jobs away from Re-
spondent’s members and announced a rally at noontime the
next day, May 16, at 260 California in order to ‘‘protest’’
IMA’s ‘‘unfair action against the janitors.’’ Another docu-
ment, General Counsel’s Exhibit 85(b) appears to be a leaf-
let, addressed to the tenants of 260 California, informing
them that ‘‘IMA . . . wants to go non-union, thinking that
they will be able to save money at our expense and beseech-
ing them to write or fax protest letters to IMA.’’ A third at-
tached document, General Counsel’s Exhibit 85(d), is another
leaflet, entitled ‘‘IMA Commercial Properties UNFAIR,’’
which states that IMA has acted unfairly by terminating its
contract with a union contractor and, thereby, taking jobs
away from Respondent’s members and announces that ‘‘we
are protesting against this heartless action directed at the
janitors by IMA.’’ The final enclosure, General Counsel’s
Exhibit 85(f), is a copy of a letter to Walter Johnson of the
San Francisco Labor Council from Roy Hong, requesting
strike sanction against 260 California.
Consonant with the announcement in the above-described
leaflet, a demonstration did, in fact, occur in front of 260
California on Thursday, May 16. According to Catherine
Carmichael, at 11:50 that morning, Ronald Zelaya, the secu-
rity guard, stationed at a desk in the building’s lobby, tele-
phoned her and said that ‘‘people were gathering out front
of the building.’’ She then went downstairs to the lobby and
observed, through the glass doors, ‘‘10 to 20 people out in
front of the building . . . milling around and making noise.’’
She added that some of the people ‘‘were waving red flags,’’
on which were printed the words ‘‘‘Justice for Janitors,’’’
and ‘‘there was a big banner, which was being held by two
demonstrators, who were standing between the two concrete
planters, and on which also was printed the message, in
English and Spanish, ‘‘‘Justice for Janitors’’’ and, beneath
that, the words, ‘‘SEIU Local 87.’’ Besides the people ‘‘mill-
ing around,’’ who were standing between the planters and
the front doors, and those holding the large banner,57 other
demonstrators ‘‘were sitting on the planters. And they had
materials sitting on the planters,’’ which were being distrib-
uted to people walking past the demonstrators. Also, Car-
michael testified, one person was shouting into a bullhorn,
and the others repeated what he said in a chanting manner.
Observing this scene from inside the 260 California lobby,
Carmichael walked outside and requested that the demonstra-
tors remove their flags and flyers from atop the plants in the
planters, but ‘‘they did not do it. And so I did it and said
that they were killing the plants, and so I would have to
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
58 Carmichael identified G.C. Exh. 70 as one of the leaflets, which
she removed from the planter and which was being distributed by
the demonstrators that day. Entitled ‘‘IMA COMMERCIAL PROP-
ERTIES UNFAIR, the leaflet, which was printed beneath Respond-
ent’s letterhead, mentions that IMA had taken jobs from five janitors
by terminating its contract with a union signatory janitorial contrac-
tor, and states that, ‘‘We are protesting against this heartless action
directed at the janitors by IMA . . . .’’
59 People continued to hold the banner, which was stretched be-
tween the planters.
60 During cross-examination, Carmichael stated that she did have
to ‘‘walk around people’’ in order to leave for lunch but conceded
that when, in her pretrial affidavit, she stated, ‘‘When I exited . . .
I did not have any difficulty leaving,’’ it was correct.
61 Barsotti identified G.C. Exh. 85(e) as the document, which he
observed being distributed that afternoon.
62 Said leaflet confirmed that both Carmichael and Barsotti had
spoken to the demonstrators that afternoon and mentioned a dem-
onstration at 260 California on May 20 at 11 a.m..
63 She identified the document as G.C. Exh. 72, and examination
discloses it to be a copy of the leaflet, sent to Barsotti, by Hong,
the previous afternoon.
move them which I did, and put them on the ground.’’58
After being downstairs for approximately 5 minutes, Car-
michael went back inside the building and up to the IMA of-
fice suite; however, 15 to 20 minutes later, she once again
went downstairs as ‘‘it was being close to lunch.’’ Exiting
the building, she observed that, continuing to carry their red
flags, ‘‘the [demonstrators] were circling in front of the
planters and around in front of the building’’59 and that the
marchers, who were no more than an inch or two apart, came
within 2 or 3 feet of the front entrance as they circled past.
Observing no one being physically impeded from entering or
leaving the building, Carmichael stated that, although no one
stepped aside, she was able to make her way through the
marchers without having to use her elbows to clear a path.60
She testified further that she returned 20 minutes later, at ap-
proximately 12:45 p.m., and observed that the demonstrators
‘‘were circling and making alot of noise . . . basically the
same way’’ as previously observed. Carmichael was able to
identify Roy Hong as the individual, who was shouting into
the bullhorn that afternoon. She immediately returned to her
office after lunch and received a report from the guard that
the demonstrators had departed at approximately 1:30 p.m.
Contradicting Carmichael as to the timing of the above
demonstration, Richard Barsotti testified that, ‘‘sometime
after 3:00’’ on May 16, he was in his office at 260 Califor-
nia and heard noise coming from outside, and, looking down
from his window, he observed 15 to 20 people, who had
‘‘gathered . . . in the front area of [the building],’’ one per-
son handing out small red banners to the others, a large,
white banner being unfurled, and one or two of the group
distributing leaflets to people, who were walking past on the
sidewalk. According to Barsotti, who stated that he had had
no reports of any earlier demonstration that day, after watch-
ing for ‘‘several minutes,’’ he went downstairs and walked
outside the building. He observed most of the people, carry-
ing small, red flags, with the words ‘‘Justice for Janitors’’
and ‘‘Local 87’’ beneath, and ‘‘milling around and talking.’’
At least ‘‘one . . . if not two were handing out leaflets,61
and the large banner, with ‘‘Justice for Janitors and ‘‘Local
87’’ printed in both Spanish and English, was being held
‘‘directly outside of the entrance to the building,’’ 7 or 8 feet
away and ‘‘in front of the planter box facing the entrance.’’
Barsotti walked over to an individual, who he identified as
being Roy Hong, and ‘‘Mr. Hong told me . . . to see what
I had started, that this was my fault.’’ Remaining downstairs
just a few minutes, Barsotti returned inside the building, and,
once upstairs in his office, he continued to monitor what was
occurring outside from his window. From that vantage point,
he observed the demonstrators ‘‘marching in a circular fash-
ion, chanting, using a bullhorn.’’ The marchers appeared to
be no more than 12 to 18 inches apart, which caused individ-
uals, who were trying to leave the building, to have to ma-
neuver to the left or the right of the demonstrators, who,
never stepped aside. Barsotti testified further that he ob-
served demonstrators sitting on the flower boxes and that he
sent Catherine Carmichael downstairs ‘‘several times’’ that
afternoon. Concluding with regard to the events of that after-
noon, Barsotti stated that the demonstration ended at approxi-
mately 6 p.m. and that he received a letter from Roy Hong,
in which the latter admitted that Respondent distributed the
leaflets, which were enclosed with General Counsel’s Exhibit
85(a). Enclosed was a leaflet, which, Hong wrote, would be
distributed during the next demonstration at 260 California.62
Whatever the exact time of the demonstration, given that
Hong dated his letter May 16, it can not be in dispute that
a demonstration did occur that afternoon.
On Friday, May 17, numerous tenants of 260 California
Street reported to IMA that copies of General Counsel’s Ex-
hibit 85(b), which was addressed to the building’s tenants,
had been left in their offices the night before. Also, Cath-
erine Carmichael testified that another demonstration, outside
260 California, occurred that day. She stated that, at approxi-
mately 11:50 a.m., after being alerted by the security guard,
she went downstairs and observed that there was a group of
from 7 to 10 people in front of the building, who were mill-
ing around, making alot of noise and ‘‘they were waving
flags and . . . passing out flyers.’’63 Carmichael continued,
stating that the flags were the same red flags as carried by
the demonstrators the day before; the same large banner was
again held between the concrete planters, and the people
‘‘were moving around in front of the building . . . in a . . .
circle.’’ She added that she remained downstairs for only a
few minutes, did not return to observe what occurred, and
was informed by the security guard that the demonstrators
departed at approximately 1 p.m.
Barsotti testified that he next observed demonstrators in
front of 260 California on Monday, May 20, and again on
Wednesday, May 22. On May 20, according to him, while
in his office, commencing ‘‘some time after 3:00’’ in the
afternoon, he observed a demonstration, similar to that which
occurred on May 16, on the sidewalk in front of the building.
The demonstration consisted of approximately 15 to 20 peo-
ple, carrying the small, red banners and marching single file
and only a ‘‘couple’’ of feet apart, in a circular fashion be-
tween the entrance and in front of the large, white banner,
which again was positioned approximately 8 feet from and
directly in front of the building entrance. While he was un-
able to hear any chanting, a bullhorn was used ‘‘to urge the
people on,’’ and, as the entrance area was crowded, people,
who were leaving the building, would ‘‘have to exit right or
left, squeeze through the circle. Squeeze around the circle.’’
Barsotti added that the demonstration concluded at 5 or 5:30
that evening. The next day, Respondent sent a letter, exe-
735SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
64 There is no dispute that one was Roy Hong and the other was
Robert Daniels, a business agent for Respondent.
65 Asked by me what she meant by ‘‘stormed,’’ Carmichael replied
that ‘‘they all came in at one time through the two doors.’’
66 Carmichael testified that, on earlier days of the demonstrations,
some of the demonstrators had come inside and told the guard ‘‘that
they were going up to see the people on the eighth floor.’’
67 Inasmuch as G.C. Exh. 73(b) appears to be date-stamped 5–23,
the inference is warranted that, in fact, the picture was taken on that
date.
cuted by Hong, to Barsotti and enclosed were two docu-
ments, which, Hong stated, would be distributed at another
demonstration at 260 California on May 22. One document
accused IMA of using children, as young as 14 years of age,
to clean 230 California and repeated that IMA had recently
contracted with a nonunion janitorial contractor, thereby
causing the loss of jobs for five janitors, and the other, enti-
tled ‘‘IMA CONDONES CHILD-LABOR EXPLOI-
TATION,’’ accused IMA of using a 14-year old child to
work as a janitor at 230 California Street and of forcing non-
union contractors to hire children to work. The next day
(May 22), Barsotti wrote to Respondent, denying the con-
tents of the above leaflets and threatening a lawsuit if such
were not retracted and/or substantiated. Later that day, as he
was returning to his office after an appointment, Barsotti no-
ticed another demonstration at 260 California, with between
12 and 20 individuals marching in single file and ‘‘in a cir-
cular motion in front of the entrance of the building.’’ Roy
Hong was present, and, according to Barsotti, it was similar
to the prior events, with the people carrying the red banners,
a person using a bullhorn, and chanting. Barsotti added that
he was forced to squeeze through the marchers in order to
enter the building but that he could not recall observing the
distribution of any leaflets.
There is no dispute that another demonstration, at 260
California, occurred on Thursday, May 23; however, unlike
any other demonstration discussed herein, there is a dispute
as to what occurred. Catherine Carmichael testified that she
initially became aware of a demonstration that day when the
building security guard, Ronald Zelaya, informed her that
‘‘people were gathering.’’ Carmichael immediately went
downstairs and, remaining for five minutes, observed ‘‘from
15 to 20 people in front of the . . . building. . . . They had
whistles and were making a lot of noise. . . . And they were
waving the . . . red flags.’’ All the demonstrators were
standing in the area between the planters and the front door,
and, rather than being held, the large, white banner was tied
to the trees, which were planted in the planters. As she had
her camera with her and intending to take photographs of the
scene, Carmichael walked outside and across the street from
260 California. From that location, she observed the dem-
onstrators ‘‘circling’’ and ‘‘distributing leaflets, which made
some reference to child labor, to people walking by on the
street.’’ Also, she observed and photographed two of the
male demonstrators,64 standing ‘‘one on one side and one on
the other side of the [front] doors’’ and each with a hand on
the wooden handle of the door by which he was standing.
According to Carmichael, they stood that way for ‘‘two to
three minutes,’’ but she could not recall if anyone attempted
to enter or exit the building during that time. Carmichael fur-
ther testified that, after taking her photographs, she went in-
side and remained in the lobby for a few minutes. Suddenly,
‘‘all of the people that had been out front stormed . . . into
the lobby of the building, pushed both doors—pulled the one
door open, pushed the other, and all came into the
lobby. . . . They filled the lobby,’’ and were blowing on
whistles and chanting.65 Estimating that all of the 15 to 20
demonstrators had entered the lobby, Carmichael raised her
hand, ‘‘and asked them not to come in.’’ However, according
to Carmichael, none of the demonstrators paid attention and,
brushing her aside, the demonstrators boarded waiting ele-
vators and proceeded upward. Believing that their destination
was the office of a psychologist/counselor named Neil
DeMasters, who had an office on the eighth floor,66 Car-
michael waited for an elevator to return to the lobby and
went up to the eighth floor. Entering the lobby area on that
floor, she discovered that it was ‘‘full of people,’’ making
noise. Seeing her, most of the demonstrators went inside
Suite 801 and peered out at her. Carmichael asked the others
to leave, and, although she can’t recall what they said, ‘‘in
a laughing sort of way the responded.’’ Thereon, without
waiting to see if they departed, Carmichael left the eighth
floor and returned to her office. Remaining in her office for
only 5 minutes, Carmichael went back downstairs to the
lobby, walked outside, photographed some of the demonstra-
tors as they exited the building, and went back up to her of-
fice. Continuing, Carmichael stated that, a short while later,
she received a telephone call from the security guard at 230
California, who reported ‘‘that there were people gathering
outside of [that building].’’ Thereon, Carmichael walked out-
side of 260 California, looked toward 230 California, and ob-
served 15 to 20 people who ‘‘were walking around in a cir-
cle,’’ about 2 feet apart and no more than 1 or 2 feet from
the foyer entrance, in front of that building. The demonstra-
tors carried the familiar red flags, were blowing whistles,
and, following a man shouting into a bullhorn, chanting
‘‘‘Hey, hey, ho, ho, IMA will have to go/ Hey, ho, ho, child
labor’s got to go/ IMA unfair.’’’ After a few minutes, Car-
michael returned to her office.
Robert Daniels, Respondent’s business agent responsible
for enforcing the collective-bargaining agreement with Gold-
en State, testified that he and Roy Hong are the two individ-
uals, who are seen, in General Counsel’s Exhibits 73(a) and
(b), the photographs taken by Carmichael on May 23,67
standing beside the front doors of 260 California with their
hands on the door handles. According to Daniels and con-
trary to Carmichael, ‘‘At the moment [the photograph] was
taken, myself, as well as Roy Hong, were getting ready to
open the doors’’ as ‘‘some’’ of the demonstrators wanted to
visit the office of Neil DeMasters, who was identified, by
Daniels, as ‘‘a rehabilitation counselor/coordinator’’ utilized
by Respondent’s members for stress and alcohol related
problems. Then, with the doors being held open by Daniels
and Hong, ‘‘we went in and we signed the register log . . .
at the counter. And we signed it one by one. We signed into
the building. . . . then we got into the elevator. We took it
up to Neil DeMasters’ office, to visit with [him]. . . . We
went to [his] office’’ but ‘‘discovered . . . he was not
there. . . . We turned around. We got in the elevator. We
rode back to the lobby. And we exited the building.’’ Unsure
if anyone had an appointment with DeMasters that day, Dan-
iels testified during cross-examination, that 5 to 12 of the
demonstrators entered the building and that ‘‘everyone that
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
68 Perusal of G.C. Exh. 132, the logsheets for May 23, 1991, dis-
closes no entries for anyone visiting Neil DeMasters and no entries
for purposes other than deliveries or pickups. Moreover, none of the
names, mentioned by Daniels, of persons who assertedly signed the
book appear therein.
69 These include emptying and wiping ashtrays, emptying waste
baskets, vacuuming, dusting, properly arranging furniture, cleaning
smudges and graffiti, cleaning sinks, checking windows and doors
and leaving night lights on, reporting damage, sweeping stairwells,
and damp-mopping wood floors.
70 They are vacuuming the carpet and dusting exposed areas.
71 These include vacuuming the floors, damp-wiping the walls, and
dusting ceilings.
72 These include emptying waste containers, polishing mirrors and
fixtures, ensuring that ‘‘scale’’ is removed from sinks, toilet bowls,
and urinals, cleaning urinals and toilets, cleaning fixtures, wiping
walls, refilling soap and other dispensers, and wet-mopping the floor.
came into the lobby signed in.’’ Moments later, he back-
tracked slightly, stating that, while he did not personally
watch people sign the book, ‘‘I assumed they signed it when
they were in front of the security guard.’’ Daniels added that
the ‘‘people were lined up in single file, to sign in the log
book. I was the last one’’ and that there was no whistle
blowing in the lobby—not while I was there.’’ Finally, Dan-
iels denied standing at the front doors any time prior to
opening them, and, rather than storming the building, he re-
called the demonstrators entering like ‘‘normal human
beings.’’
Corroborating the testimony of Catherine Carmichael was
the security guard, Ronald Zelaya, who stated that his station
is a desk in the lobby and that he maintains a visitors’ log,
in which visitors are supposed to enter certain information,
including his or her name, the company or entity represented,
the tenant to be visited, and the purpose of the visit. Zelaya
testified that, on May 23, he had been instructed by Car-
michael to ensure that all visitors signed in ‘‘because during
those days the people from the union were coming in’’; that,
at the time of the incident, Carmichael was standing beside
him at his desk: and that none of the demonstrators executed
the log book that day.68 Zelaya added that, on that day, the
demonstrators ‘‘rushed’’ into the building, refused his request
to execute the visitors’ log, and said ‘‘we’re looking for
someone. They were going up. Didn’t even know what
floor.’’ He contrasted the demonstrators’ behavior that day
with earlier days when demonstrators came inside, signed the
logbook, and went up in the elevator.
Finally, with regard to the conduct at 260 California and
230 California, Respondent argues, as a defense to the alle-
gations of unlawful secondary activity, that IMA is, in re-
ality, a primary disputant in any labor dispute between Re-
spondent and Complete; and that, at all times material herein,
either Ali Abdulla has been an employee of IMA rather than
an independent contractor doing business as Complete or
IMA and Complete have acted as a joint employer of the
janitors, who clean 260 California and 230 California. At the
outset, as stated above, while there is no record evidence as
to the surrounding circumstances, Ali Abdulla, who had been
employed by Golden State as a janitor at 230 California, re-
signed from that company, sometime in the time period 1988
through 1990, in order to form Complete and to bid on the
janitorial contract for that building. Although the record evi-
dence is not particularly clear, it appears that Complete is a
sole proprietorship, owned by Abdulla and his wife; that
IMA owns no financial interest in the business; that Abdulla
employs ‘‘three guys’’ to clean 260 California, that his wife
performs janitorial work at 230 California Street, and that he
works at both locations. As to whether Complete has an of-
fice, Richard Barsotti testified that he knows the address is
401 Hyde Street in San Francisco but nothing else about it;
however, counsel for Respondent has requested that I take
official notice of the San Francisco Pacific Bell White Pages,
which lists the above as Abdulla’s home address and 230
California Street as the business address for Complete.
General Counsel’s Exhibit 87 is the contract, between
IMA and Complete, for 260 California. The body of the
agreement is on a purchase order form, provided by IMA,
and the language thereon was entirely drafted by IMA, in-
cluding the fixed cost and a provision mandating that
Abdulla maintain accurate cost records for accounting pur-
poses. On this point, Abdulla, who, while testifying, exhib-
ited a halting command, and limited understanding, of the
English language, stated that he was neither present during
the drafting of nor consulted about the contract language.
Particularly instructive as to IMA’s control over the terms is
the phrase, under the Compensation and Payment provision,
‘‘Vacation for employees is included in salary.’’ As to this
language, Abdulla explained that underlying it was a dispute,
involving his original contract for 230 California, over
whether IMA was required to give him vacation pay and that
it means, ‘‘I will not make any extra money from the origi-
nal price.’’ He added that, although unaware the provision
was in his contract, he was not surprised. Barsotti contra-
dicted Abdulla, testifying, as to the above phrase, that such
was included at the express direction of Abdulla and him
after a conversation, between the two men prior to the execu-
tion of the contract, during which Abdulla was ‘‘wondering
whether or not this was an item that was going to paid. . . .
I said no, that’s not our intention.’’ Barsotti testified further
that he wanted absolute ‘‘clarity’’ concerning employee va-
cation expense and ‘‘I wanted it to be clear that I was not’’
responsible. Finally, with regard to the matter of its 260 Cali-
fornia contract, Abdulla admitted he has never had a contract
with any management company other than IMA.
The crux of Respondent’s employee and/or joint employer
arguments concerns a three-page attachment to the above-de-
scribed purchase order form. The attachment sets forth, in
minute detail, what services Abdulla must provide on daily,
weekly, monthly, and quarterly bases in each area of the
building and, in some instances, specifies exactly how the
work is to be done. Thus, on a daily basis, Complete must
perform no less than 16 specified tasks while cleaning of-
fices and landings,69 including dusting with a ‘‘treated
cloth’’ and removing finger prints and marks from glass and
doors with ‘‘a non-abrasive cleaner’’; two specified tasks in
cleaning the lobby entrance;70 three tasks in order to prop-
erly clean the elevators;71 and nine specified bathroom clean-
ing procedures,72 including using only ‘‘approved germicidal
solution’’ to clean urinals and toilet bowls, ‘‘disinfectant’’
solutions for cleaning toilet seats and floors. Further, Abdulla
is required to perform three cleaning jobs on a weekly basis,
including washing the exterior walls to a height of 10 feet
737SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
73 The others are dusting all window sills and radiators and dusting
all wall coverings and decorations.
74 These include ‘‘high-dust[ing]’’ partition ledges, walls, and
moldings; mopping stairway; shampooing lobby carpet; dusting
lobby chandelier; washing glass windows and front doors, and buff-
ing wood floors.
75 These include polishing brass standpipes outside the main lobby,
polishing door kick plates and push plates and lobby ash urns, wax-
ing and polishing all resilient tile floors, and vacuum and clean fur-
niture.
76 The inspiration or source for the listing was his prior position
with Golden State ‘‘because I used to work for a company that has
supervisors and . . . we used to see them before. . . . I used to
work for American Building Maintenance, and the way I have to
correct the gap for my company as a janitor, we just show them
what to do, but my boss always give me this, and he’d say ‘This
is what you should have your people follow it.’ And I read them,
I used to.’’
with a ‘‘high pressure hose’’;73 six on a monthly basis,74 and
four jobs75 on a quarterly basis. As to the creation of this
list of specified tasks, the record is conflicted. Thus, Richard
Barsotti asserted that, based on cumulative experience, IMA
composed the document—‘‘We provided the scope of serv-
ices,’’ and Complete ‘‘were not involved.’’ Contrarily, Ali
Abdulla testified that, other than typing it, everything in the
list of jobs came ‘‘from me.’’ He added, ‘‘I make them when
I start to choose to have my own business. I organized this
. . . to give them to everyone who is going to give me jobs
. . . and I have them in my hand.’’76 However after being
unable to define the meaning of certain terms in the list of
jobs, including debris, smudge, and nonabrasive cleaner, or
to explain the difference between a disinfectant solution and
a disinfectant cleaner, Abdulla changed his testimony, stating
‘‘I must give them to somebody and did them for me.’’
Later, he once again changed his testimony, saying that he
only showed the final document to a friend, who ‘‘read them
and do nothing.’’ However, when asked why he would in-
clude terms he did not understand, Abdulla averred, ‘‘If I
don’t understand, I’ll hire someone who understand, I’ll hire
someone who understand and read them and do them.’’
With regard to direction of Complete’s work by IMA,
Barsotti testified that he and Carmichael inspect 260 Califor-
nia and 230 California ‘‘periodically,’’ denied that either he
or Carmichael give nightly instructions to Abdulla with re-
gard to necessary janitorial work, and stated that sometimes
there are special instructions for Abdulla, about which they
‘‘take his word’’ the work has been completed. In contrast,
Abdulla stated that, while he might see Carmichael only
‘‘once a week,’’ notes are left for him ‘‘most of the time’’
with regard to cleaning matters, including work that has not
been completed to her satisfaction. Asked how many notes
he has received from Carmichael, Abdulla replied, ‘‘could be
hundreds. . . . I don’t have no memory to keep all this.’’ He
added that the notes could range from a request to change
a light bulb to pointing out that carpet has not been
vacuumed correctly. Further, according to Abdulla, while
neither Carmichael nor Barsotti has ever warned him about
the consequences of failing to perform an assigned task, he
knows he must do the work ‘‘if it needs to be done’’ or
‘‘they will terminate my contract within three days.’’
With regard to the matter of control over Complete’s labor
relations practices, Barsotti testified that IMA has no contrac-
tual authority to demand the discharge of a janitor and has
nothing to do with the hiring or firing of Complete’s employ-
ees, adjusting their employee grievances, granting time off,
vacations, and leaves of absence to Complete’s employees.
Also, IMA keeps not payroll information for Abdulla. On
this point, the latter testified that all of Complete’s time, at-
tendance, and payroll records are maintained by an account-
ant—the same one as utilized by IMA. Further, Abdulla stat-
ed that he establishes the wage rates for Complete’s employ-
ees and that IMA has nothing to do with it; that he is respon-
sible for the hiring and firing of Complete’s employees, with
IMA having no right to demand that he fire a janitor; and
that he alone resolves employee grievances and grants time
off.
7. Case 20–CC–3190
The record establishes that the building, located at 394 Pa-
cific Avenue in San Francisco, is a five-story, 50,000-square
foot commercial office building; that it is owned by a limited
partnership, the 394 Associates, with Martin I. Zankel, an at-
torney, acting as the general partner; and that 394 Associates
has no employees nor has it ever had any collective-bargain-
ing relationship with Respondent. The record further estab-
lishes that, prior to June 15, 1991, the Wells Fargo Bank real
estate department was the only tenant of 394 Pacific Avenue;
that, pursuant to its so-called triple net lease, Wells Fargo
Bank was responsible for all vendor service expenses, includ-
ing janitorial services, attendant to its leasehold; and that
American Building Maintenance (American), which as stated
above, is signatory to a collective-bargaining agreement with
Respondent, was the janitorial contractor for the building. On
or about June 15, 1991, Wells Fargo Bank entered into a
new lease agreement, involving only the upper three floors
of 394 Pacific Avenue and relieving it of any maintenance
responsibility. Also, on or about June 15, 394 Associates
contracted with NAMCO to provide property management
services for the building, and NAMCO promptly contracted
with Trinity for janitorial services there. Two days before the
effective date of Trinity’s maintenance contract for 394 Pa-
cific Avenue, on June 13, Michael Boschetto mailed a letter
to Richard Leung, advising Respondent that Trinity would
become the janitorial contractor at said building, that all
work would be performed between 7 p.m. and midnight; and
that no Trinity employees would be present at 394 Pacific at
any other time.
The record reveals that, also shortly before the effective
date of Trinity’s maintenance contract for 394 Pacific Ave-
nue, Roy Hong sent, by facsimile transmission, a letter, dated
June 12, to Joseph Murphy of NAMCO, advising the latter
that Respondent was aware that NAMCO was planning to
utilize a ‘‘non-union contractor’’ for janitorial services at the
building and stating that ‘‘once again, [NAMCO] is neglect-
ing to extend a courtesy call to us that may help both of us
from being in a position nobody cares to be in.’’ The next
day, June 13, by facsimile transmission, Hong sent a letter
to Martin Zankel in which he wrote that contracting with
Trinity ‘‘will result in loss of job for the janitor who has
been cleaning the building for years. Subsequently, a non-
union janitor will be working at the building.’’ Continuing,
Hong mentioned that, as in the past, Trinity might use a sub-
contractor, who has been in violation child labor, overtime,
and minimum wage laws and was the subject of a lawsuit
in those regards. Then, reaching the point of his letter, Hong
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
77 Among the tenants at 49 Stevenson, in June 1991, were
NAMCO, Constructa USA, Kvaerner Hydropower, McCord Co.,
DataVision, Travel Age West Magazine, and the Yank Sing Res-
taurant.
Mike Boschetto testified that the day janitor position was rein-
stated at 49 Stevenson on July 17, 1990, with the janitor’s hours
being 6:30 a.m. until 10:45 a.m. and from 2:15 p.m. to 3 p.m. There
is no evidence that he alerted Respondent that the day position had
been reinstated. He further testified the janitor hours, in June 1991
had changed—the day janitor was present, in the building, from 6:30
a.m. until 3 p.m. and the night janitors worked from 6 p.m. until
1 or 2 a.m.. Meredith Suter, who, in June 1991, was NAMCO’s
property manager for 49 Stevenson, contradicted Boschetto with re-
gard to the janitors’ hours in June 1991, stating that the day janitor
was present from 7 through 10 a.m. and from 2 until 3 p.m. and
that the night crew was in the building from 5:30 or 6 p.m. to ap-
proximately 1:30 a.m..
78 Shown a photograph of Yehya Hassan, Choudhary identified
him as the individual, shouting into the bullhorn.
79 At the time of the demonstration, employees of Monroe Schnei-
der Carpeting were making a carpet delivery to the building. A de-
livery truck was parked, at the curb, in front of the loading dock,
and the delivery people were carrying carpet from the truck to the
freight elevator entrance at the loading dock. According to
Choudhary, at the time of the marching and chanting, the
deliverymen were ‘‘standing by the truck,’’ watching.
80 Shown a photograph of Roy Hong, Choudhary identified him as
the person speaking on the telephone.
81 The freight elevator doors were open as it was on hold for the
carpet delivery people.
82 With regard to the carpet delivery, Choudhary did not know
what happened to them and ‘‘did not see them’’ after the demonstra-
tors departed. He believed that some carpet had been carried to the
freight elevator prior to the start of the demonstration and, perhaps,
some had already been put down.
83 He described the ‘‘signs’’ as being composed of red cloth.
wrote, ‘‘[Respondent] has been campaigning against Trinity
throughout downtown, San Francisco for more than a year,
and as a result of NAMCO’s decision, your building will be
the center of our campaign.’’
As the record discloses, Respondent evidently decided to
make its point by, once again, demonstrating at 49 Steven-
son.77 Thus, Navaid Choudhary, a security guard, whose
workstation is the lobby at 49 Stevenson, testified that, on
Wednesday, June 19 at approximately 12:15 p.m., he was
standing by the front entrance, and ‘‘I saw a group of about
15 to 20 people. . . . They were carrying small, red banners.
And they were chanting slogans and walking towards build-
ing.’’ Reaching the building, the marchers ‘‘gathered in
front,’’ and ‘‘then they start making circles on sidewalk,’’
walking around in a 20 foot wide area, stretching from in
front of the front doors to the loading dock area, which is
located past the front doors on the Stevenson Street side of
the building. Choudhary, who, on seeing the demonstrators,
informed John Lathrop, the chief engineer for 49 Stevenson,
recalled that printed on the red banners was ‘‘Justice for
Janitors’’ and the name of the labor organization involved;
that the chanting was in response to a person, who he recog-
nized from an earlier demonstration, shouting into a bullhorn,
out of which, from time to time, came a ‘‘high pitched
squeaking sound; that one of the chants was ‘‘‘Down with
NAMCO’’; and that one person was attempting to distribute
handbills to tenants and pedestrians on the sidewalk.78 This
handbill, entitled ‘‘CONSPIRACY AGAINST JANITORS,’’
alleges that there are unscrupulous building owners, includ-
ing Martin Zankel and his partners at 394 Pacific, who take
jobs away from minority and immigrant janitors; that Zankel
and his partners use NAMCO to manage 394 Pacific and
NAMCO terminated a contract with a union janitorial com-
pany in order to contract with a nonunion janitorial contrac-
tor for that building; that Trinity refused to hire the former
janitor at the building and, in stead, hired a new one at sub-
standard conditions; and that ‘‘394 Pacific is not the first
time this is happening. We intend to stop this immoral and
unjust attack against all janitors by Mr. Zankel and his likes,
NAMCO and Trinity.’’ During this initial period of the dem-
onstration, according to Choudhary, he observed many ten-
ants entering and leaving the building without any dif-
ficulty.79
After several minutes of confining their marching to the
public sidewalk, according to Choudhary, some of the dem-
onstrators began walking inside the Stevenson Street arcade
area. He approached an Oriental man, who had been speak-
ing into a cellular telephone,80 and told the man that the
demonstrators shouldn’t be on building property. Choudhary
asked how long the demonstrators intended to continue
marching, and the man replied, ‘‘you’ll find out.’’ Shortly
thereafter, he observed ‘‘the gentleman with the bullhorn
walking towards lobby door . . . saying on the bullhorn . . .
‘come on, we are going in.’’’ Suddenly, three or four dem-
onstrators followed him inside, and, before Choudhary could
lock the doors, the remaining demonstrators came inside the
building. In the lobby area, the demonstrators continued their
chanting, with Choudhary describing the noise level as ‘‘very
loud.’’ Choudhary repeatedly implored the man, with the
bullhorn, to leave the building, saying ‘‘you are not supposed
to enter into the building, you have to get out’’; the man ig-
nored Choudhary and warned him not to touch anyone.
Meanwhile, the demonstrators moved toward the elevators,
which, according to Choudhary, except for the freight eleva-
tor,81 appeared to be inoperative. At that point, Choudhary
walked outside and, in order to permit some tenants and a
delivery person to enter the building, unlocked the fire exit
door, located near the loading dock. While he held the door
open for people to enter, other tenants came down the stairs
and departed through the door. Choudhary then went back
into the lobby and observed 15 to 20 people, including the
man with the bullhorn, leaving elevator No. 1. Thereon, the
entire group walked through the lobby and out the front
doors. They gathered on the sidewalk, the man with the bull-
horn thanked them for participating and said they would re-
turn for a ‘‘bigger demonstration,’’ and the demonstrators
dispersed.82
John Lathrop corroborated Choudhary as to the demonstra-
tion that day. According to Lathrop, shortly after noon, he
received a radio message from Choudhary ‘‘that there were
some people in front of the building entrance.’’ Lathrop was
‘‘concerned,’’ went to the entrance area, and, standing in
front of the loading dock, ‘‘I saw approximately 10 to 15
people that weren’t usually in front of the building’’ and they
‘‘appeared to be carrying signs83 and marching in an ellip-
tical-shape pattern in the sidewalk in front of the building.’’
He noted that the marchers were outside the arcade area and
739SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
84 Lathrop did not know if the janitor was working in the building
at the time of the demonstration. As to the carpet delivery, Lathrop
testified that two people were laying carpet on one of the upper
floors and that they had been utilizing the freight elevator to move
the carpet.
85 According to Zankel, ‘‘there was a remodeling of the public
areas of the building, the lobby, painting of the exterior, and a
redoing of the exterior’’ ongoing at 394 Pacific Avenue at that time.
In this regard, a scaffolding had been erected along two sides of the
building. Plant Contractors was the general contractor for the project,
and subcontractors were working then.
15 feet from the front doors. Lathrop recognized an Oriental
man from an earlier demonstration and asked him not to
trash the building, and the man replied that they had not
planned on doing that. Also, he observed demonstrators dis-
tributing handbills to pedestrians. Moments after speaking to
the Oriental individual, no more than 10 of the demonstrators
went inside the building. Lathrop followed them, watching
the people walk to the elevators, and he went immediately
to the fire control closet and pressed the recall switches,
which made the elevators return to the lobby and become in-
operative. Lathrop then watched as some of the demonstra-
tors get into the open freight elevator and go up to the third
floor, stop, and continue up to the 14th or 15th floor.
Lathrop then took one of the passenger elevators up to the
third floor and discovered four or five people ‘‘milling
around’’ in the lobby area. He asked them to leave;
‘‘herded’’ them into the waiting elevator, and rode down to
the lobby with the demonstrators. They then left the build-
ing.84 The record establishes that the demonstration ended at
approximately 1 p.m.
Trinity commenced providing janitorial services at 394 Pa-
cific Avenue on June 15, and, notwithstanding what Hong
wrote, there is no record evidence of any immediate reaction
by Respondent at 394 Pacific Avenue. However, 12 days
later, on June 27, at approximately noontime, Zankel was in
his office when he was advised by the receptionist that ‘‘a
large group of individuals’’ was in the reception room and
wanted to see him. Zankel instructed her to deny their re-
quest and telephoned building security, seeking the removal
of the people. Moments later, security guards came to
Zankel’s office, and the people left his office. According to
Zankel, his visitors left behind a leaflet, which bore the head-
ing ‘‘394 PACIFIC—NON UNION,’’ named Zankel as one
of the general partners of the partnership which owns 394
Pacific Avenue, NAMCO as the property manager, and Trin-
ity as the janitorial contractor, and which states, ‘‘Above
mentioned owners and managers have taken [a janitor’s] job
away. . . . They have given the contract to a law breaking
non-union contractor named above who pays sub standard
wages with no benefits.’’
Later, that same day, Zankel received, by facsimile trans-
mission, the following letter from Roy Hong:
We were very disappointed that you did not come out
to greet us today. All we wanted to know was if you
would be interested in representing us. Local 87 owns
a building and needs legal representation. If you are in-
terested, please give me a call. By the way, we have
a very strict guideline when we use outside service. Un-
like you, we don’t use immoral, unscrupulous, and law
breaking services. So, if you think you still qualify, by
all means, call me. Anyways, I am attaching a copy of
our strike sanction which we have just received today
against your building. In case you don’t know what that
exactly means, you most likely won’t get your building
fixed up on time. If you have any questions, please feel
free to call me.85
Attached to Hong’s letter was a copy of a letter, to him,
from the San Francisco Labor Council, advising of the grant-
ing of emergency strike sanction at 394 Pacific Avenue, and
a copy of his letter to the Labor Council, requesting strike
sanction so that Respondent could begin picketing imme-
diately at 394 Pacific because NAMCO had contracted with
nonunion Trinity.
Despite the ‘‘strike sanction,’’ no allegedly unlawful con-
duct occurred at 394 Pacific. However, according to building
manager Meredith Suter, at 49 Stevenson, at approximately
4 p.m. on August 1, 1991, ‘‘I observed approximately 45 to
50 demonstrators in front of [the building]. About . . . 25
to 30 of them came inside the arcade area, in front of the
front doors. . . . The remaining people were in front of the
building, but more on the sidewalk area, outside of the ar-
cade.’’ About 25 demonstrators were carrying red flags, on
which was printed ‘‘Justice for Janitors’’ and ‘‘Local 87,’’
a man was making screeching sounds with a bullhorn, and
Suter heard the chant, ‘‘Hey, hey, ho, ho, nonunion buildings
got to go.’’ As to the demonstrators inside the arcade area,
they were ‘‘mostly milling around, yelling’’ directly in front
of the entrance. When she first heard the demonstrators,
Suter had ordered that the front doors be locked, and, in
order to permit tenants or visitors to enter and leave, she
would unlock the door. On these occasions, the demonstra-
tors would position their feet and bodies in the doorway, so
that she could not lock the doors, and demand to enter. This
occurred, at least, 10 times, and she denied entry each time.
The police were called, and officers arrived at approximately
4:20 p.m. They forced the demonstrators to stay outside the
arcade columns and, at that point, the demonstrators moved
out onto the sidewalk, formed a fairly tight circle, and con-
tinued yelling and screeching the bullhorns for about 10 min-
utes. They dispersed at approximately 4:30 p.m.
Five days later, on August 6, another demonstration oc-
curred. According to Suter, at approximately 11:50 a.m., she
looked from her second floor office window and observed a
group of ‘‘about a hundred’’ people, coming toward 49 Ste-
venson from the direction of Second Street. Some carried
signs, attached to sticks, stating ‘‘Strike FDIC, 25 Ecker,
Local 87.’’ She watched as the crowd approached her build-
ing when ‘‘about half the group walked off of the street and
came . . . inside the columns in front of the building into
. . . the arcade area. . . . They remained there for about 3
to 5 minutes’’ and ‘‘were yelling ‘Hey, hey, ho, ho, union
busters got to go’ and ‘shut it down, shut it down!’’’ The
remainder of the crowd stayed on the sidewalk, and, after
three to five minutes, the entire group ‘‘continued on, down
towards Ecker Street.’’ An hour later, Suter further testified,
she observed the same size group of people coming toward
the building from the direction of Ecker Street. ‘‘And they
did basically the same thing that they did when I’d seen
them an hour earlier. They were walking on the street, and
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
86 Apparently, there are two condominium units on a floor, and
these are divided into office suites. The owners may lease these of-
fices, being responsible for their own leasing arrangements and pro-
cedures. In August 1991, some tenants of the building, besides the
FDIC itself, were Strong and Associates, American Express, and an
accounting firm.
then about half the group came inside the columns, into the
arcade area. At this time, they stopped for one or two min-
utes and continued back on towards Second Street.’’ The
same signs were carried by the demonstrators, and they
chanted the same slogans. Suter added that, on both occa-
sions, ‘‘in order to have them in front of the building, they
extended beyond the arcade area, onto the sidewalk, and
even into the street’’ and that the people were ‘‘just milling
around’’ and did not seem to be organized. While denying
responsibility only for the demonstrations on August 6, Re-
spondent failed to controvert any of the above testimony.
8. Case 20–CC–3196
The record establishes that the building located at 25
Ecker Street in San Francisco (25 Ecker) is at the corner of
Jessie Street and Ecker Street (approximately one-third of a
city block south of the intersection of Ecker and Stevenson)
and is a 23-story office condominium building, owned by the
Ecker Square Condominium Owners Association (the Own-
ers Association), and that, as of August 1991, of the 34 of-
fice condominium units in the building, the FDIC owns 33
such units and the other is owned by a real estate investment
trust.86 Although the building is 23 stories in height, the
lobby area, which is actually an atrium, encompasses the first
5 floors. The lobby/atrium is enclosed by glass, and the en-
trance is composed of four glass doors, which only open out-
ward. The lobby/atrium is approximately 25 feet long, and
the distance between the front doors and the rear elevators
is 12-1/2 feet. In front of the entrance is an ‘‘open plaza’’
area, which is landscaped with flowers, large trees, and
benches and which was described as being private property
with public access—the city of San Francisco considers the
area to be a ‘‘mini-park.’’ The plaza area is bordered by col-
umns and large, white pillars or pylons.
The record discloses that, since June 1980, 25 Ecker has
been managed by Brighton Pacific. In said capacity, the latter
provides the annual budget for vendor services and contracts
for all such services at the building, including janitorial,
landscaping, pest control, heating, ventilation, and air condi-
tioning. John Schmidt has been the property manager, at the
building, for Brighton Pacific for 6 years. Neither the FDIC,
Brighton Pacific, nor any other tenant of 25 Ecker employs
janitorial employees or has ever had a collective-bargaining
relationship with Respondent. Prior to May 1991, the Owners
Association had contracted with International Service Sys-
tems (ISS), which has a collective-bargaining agreement with
Respondent, for provision of a crew of janitors at 25 Ecker;
however, in that month, after a bidding procedure, the Own-
ers Association selected GMG Janitorial Maintenance (GMG)
as the janitorial maintenance contractor for the building. On
behalf of the Owners Association, in June, Brighton Pacific
entered into a contract with GMG, with such becoming ef-
fective on August 1. The record further discloses that, as
happened at 1 Ecker, at 631 Howard Street and 55 Haw-
thorne Street, at the Koret Building, at 260 California, and
at 394 Pacific, Respondent became aware of the cancellation
of a maintenance contract with a union signatory firm and
undertook steps to prevent it. Thus, sometime in mid-May,
Roy Hong, with whom Schmidt was not acquainted, tele-
phoned the latter, saying ‘‘[Respondent was] aware of the
fact that the ISS contract was being replaced by GMG’’ and
arranged for a meeting on May 21. On that date, Hong and
Richard Leung met with Schmidt in the latter’s office at 25
Ecker. After the two Respondent officials introduced them-
selves, Hong ‘‘basically asked if there was anything they
could do as far as coming to an agreement, and meeting with
anyone from the condo board to see if they could work out
something to retain the contract at the building.’’ Schmidt re-
plied that the board of directors had already informed the
new janitorial contractor that it would utilize that company’s
janitors at 25 Ecker. Leung said that ‘‘we didn’t want to get
into positions over the contract being terminated with ISS
Janitorial.’’ Schmidt responded that the condominium board
of directors had acted for two reasons; the level of service
from ISS ‘‘was going down’’ and the board had a policy
‘‘that all contracts would go into a three-year bid rotation,
regardless of the level of service.’’ The GMG maintenance
contract became effective on August 1, and a GMG janitorial
crew, consisting of four janitors, was ‘‘scheduled to work
from 7:00 p.m. til 4:00 in the morning,’’ and their respon-
sibility was to ‘‘provide janitorial services to all the suites
in the building,’’ including vacuuming, emptying trash, dust-
ing, polishing, touching up the carpet.’’ For the janitorial
work, GMG provides its own vacuum cleaners and buffing
equipment, trash barrels on wheels, brooms, and mops, and
the said equipment is left on site, each day, in janitor closets
on each floor.
According to two FDIC employees, Everett Woldridge and
Timothy Tanner, Respondent staged a demonstration at 25
Ecker on Tuesday, July 30. Woldridge testified that, at ap-
proximately 3:15 p.m., along with Tanner and another FDIC
employee, Sandra Beeson, he went for coffee at a nearby
Jack-in-the-Box restaurant. As they left 25 Ecker, Woldridge
observed ‘‘activity’’ at the corner of Jessie and Ecker—peo-
ple passing out red cloth banners or flags. Later, as they re-
turned to the building, Woldridge observed that parked cars
had effectively blocked traffic on Jessie Street and on Ecker
Street, and, on Ecker Street, ‘‘the crowd had grown,’’ and
people were continuing to distribute the red banners to those
who had joined the crowd. The three FDIC employees
walked through the throng and entered the 25 Ecker plaza,
in which a crowd of approximately 50 people, standing no
more than 10 feet from the front doors of the building, was
facing the building, waving the red cloth flags, and yelling
‘‘in unison with’’ a man, who was shouting into a bullhorn.
The noise level was ‘‘very loud.’’ As Woldridge approached
the building doors, he observed that ‘‘the doors were
locked.’’ The building security guard recognized them and
unlocked the far left door for them to enter. Woldridge
pulled it open, and, ‘‘at that point, the people in the plaza
rushed toward the building. And I was forced between the
door. . . . It’s a big glass door . . . and was stuck on my
left foot, so the door couldn’t go open any further. At that
point, some sort of . . . dark red fluid was thrown against
my back.’’ He immediately turned his head and was con-
fronted by a large, stocky Hawaiian or Samoan individual,
who ‘‘was bent over in a charge’’ position and ‘‘charged’’
741SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
87 Asked if there was anything unusual about Woldridge, Tanner
stated that, when they were in the elevator, he asked if Tanner was
all right and that ‘‘he had been hit in the back with something that
left a red stain on his shirt.’’
88 The record establishes that, on August 2, Brighton Pacific hand-
delivered a letter, signed by John Schmidt and addressed to Richard
Leung. Said letter, which Respondent did not deny receiving, states
that GMG’s janitors begin working at 7 p.m. and conclude at ap-
proximately 4 a.m. at 25 Ecker, that they are not present at any other
time of the day, and that they do not use the front doors for entry.
into Woldridge from behind him, knocking him harder
against the door. Thereafter, the crowd began swarming into
the building, and ‘‘I was literally forced with the flow of
people from the front door to the . . . door of the elevator
and pushed into it. The door remained open for less than 30
seconds before going up.’’ Woldridge estimated that 35 peo-
ple had squeezed into the lobby, and ‘‘they were yelling and
waving . . . the red banners.’’ Also, the person, with the
bullhorn, was inside the lobby, shouting into the bullhorn
and ‘‘it was hurting everyone’s ears.’’ Concluding,
Woldridge stated that he heard no English spoken by anyone
in the crowd and noticed no identification of any organiza-
tion.
Timothy Tanner testified that he was ‘‘out in the plaza
having a cigarette’’ at approximately 2 p.m. when he ob-
served ‘‘a group of people in front of the building.’’ An hour
later, he left the building with Woldridge and Beeson on a
coffee break and noticed that a crowd of shouting people was
massed on Ecker Street and that half were carrying red cloth
flags, on which, printed in black, were the words ‘‘Justice
for Janitors, Local 87.’’ The FDIC employees returned 20
minutes later, and, according to Tanner, ‘‘the group of peo-
ple had moved into the plaza. . . . And they were shouting
and marching in a circle.’’ Also, one person, who was stand-
ing ‘‘very near the front door,’’ was yelling, through a bull-
horn, ‘‘Let’s go into the building.’’ At this point, Tanner fur-
ther testified, he and Woldridge approached the front doors
of the building, and the security guard came over to a door
in order to unlock it and permit them to enter. Meanwhile,
the crowd, all of whom had been surging toward the front
doors at the urging of the man with the bullhorn, ‘‘broke’’
and ‘‘they started pushing and shoving us into the door,’’
crushing them ‘‘between the stationary door and the door
that was being unlocked.’’ Suddenly, ‘‘the door was pulled
open. And we were pushed in with the crowd. They were
kicking and shoving and shouting. And the guy with the
megaphone was . . . shouting into the [bullhorn].’’ Tanner
continued, stating that the crowd ‘‘fell’’ into the lobby. At
that point, ‘‘the middle elevator door opened, and I managed
to get into the elevator,’’ pulling Woldridge behind. The
doors closed, and they went up. During cross-examination,
Tanner said that the man, with the bullhorn, shouted in Eng-
lish and that he did not observe any attack on Woldridge.87
John Schmidt testified that another demonstration occurred
on the following day, Wednesday, July 31. According to
him, at approximately 3:30 p.m., while inside the 25 Ecker
lobby, he observed a group of 40 to 50 people assemble in-
side the plaza area. At least 30 were carrying red cloth pen-
nants, on which was printed ‘‘Justice for Janitors, Local 87,’’
‘‘and the entire group . . . began to march around in the
plaza area, coming within approximately a foot of the door.’’
Schmidt, who recognized Roy Hong amongst the demonstra-
tors, added that the marchers seemed to be separated by only
inches and that they shouted slogans such as accusing the
Owners Association of taking milk from babies, as ‘‘We’ll
shut it down,’’ as ‘‘Justice for Janitors,’’ and as ‘‘Hell no,we
won’t go.’’ After a while, the crowd ‘‘all came in a mass
and stayed by the front doors . . . effectively blocking it.’’
Schmidt described the people as being no more than a foot
from the front doors and remaining there for ‘‘about 10 min-
utes.’’ He also stated that several tenants attempted to exit
but could not do so ‘‘because the people did not move away
from the front.’’ Schmidt further testified that, after 10 min-
utes, the demonstrators ‘‘resumed walking around in the
same path’’ as before; that they did so for the next 45 min-
utes; but that ‘‘periodically’’ they would stop and move
‘‘close to the doors’’ and shout their slogans for a minute
or two. Once, according to Schmidt, on a tenant leaving the
building, a demonstrator placed a stick inside a doorway, not
permitting the door to close, and, as Schmidt removed the
stick, the individual ‘‘clenched his fist.’’ That afternoon,
Schmidt also observed the distribution of leaflets by protest-
ers, and the demonstration continued until 5:30 p.m.
Schmidt testified that another demonstration occurred on
August 1 from 3:30 until 5:30 p.m. On this occasion, the
witness, who was standing in the 25 Ecker lobby, observed
the same sort of conduct as the day before, with approxi-
mately 70 to 80 people, about 30 to 50 of whom carried the
same red pennants, inside the plaza area, marching ‘‘around
in the same pattern’’ as previously, coming ‘‘within the same
distance of the front doors,’’ and shouting the ‘‘same’’ slo-
gans. Schmidt recognized Roy Hong and Richard Leung as
being amongst the demonstrators, and, at one point, accord-
ing to him, Hong noticed him in the lobby and shouted into
a bullhorn ‘‘that they would be coming into the building in
approximately ten minutes’’ and they ‘‘wanted to go up to
see Mr. Donald Pfeiffer,’’ an FDIC official. Thereafter,
Schmidt continued, Hong would ‘‘periodically’’ give a
countdown to when the crowd would enter the building.
‘‘And then the time lapsed, they did not come in on that oc-
casion.’’ Thereon, Hong announced a new 10-minute period
after which, again, no one attempted to enter. Finally, at ap-
proximately 4:35 p.m., no more than 20 of the demonstrators
‘‘burst’’ through the front doors and into the building lobby
whereon, for a minute or two, they were ‘‘marching around
and chanting.’’ An FDIC official blocked others from enter-
ing, and Roy Hong, who had been one of those who came
inside, began chanting through his bullhorn, and the march-
ing continued, with an easel being knocked over. Police then
arrived and evicted the demonstrators, who thereafter contin-
ued their marching in the plaza.
A final demonstration at this building occurred on August
6.88 That day, apparently after leaving 49 Stevenson, the
demonstrators moved on to 25 Ecker, arriving in front at ap-
proximately 11:50 a.m. John Schmidt estimated the crowd as
numbering 250 people. Again viewing from the building
lobby, he observed most to be carrying the same red banners,
as used in the earlier demonstrations, and others were carry-
ing what Schmidt considered to be standard picket signs
(‘‘white cardboard on a wooden stick’’), reading ‘‘FDIC, 25
Ecker, On Strike, Local 87.’’ The demonstration, inside the
plaza area, began, according to Schmidt, with the same
marching in a circular path, with people bunched close to-
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gether and ‘‘side by side.’’ Then, at ‘‘12:30 or so, they all
converged on the . . . glass atrium . . . encompassing the
whole atrium. . . . The people in front were up against the
glass . . . doors and all available access to the glass on the
sides and corners. And then they had people standing in a
close . . . position behind them, bunch after bunch after
bunch.’’ The people were chanting ‘‘We’ll shut it down’’
and ‘‘just leaning against the glass, waving their pennants
and signs and shaking the front glass doors. . . . People on
the sides . . . had their arms up and were tapping on the
glass to get our attention.’’ Then, ‘‘several people sat
down,’’ with their backs against the left door. Schmidt stated
that this continued for 15 minutes, with the noise level
‘‘twice as loud’’ as previously. Then, the crowd returned to
marching in their circular fashion. After a short while, the
entire crowd moved out of the plaza and to the corner of
Ecker and Jessie, ‘‘and it appeared that there was someone
calling out names.’’ At this point, the police arrived and or-
dered the crowd not to block the building, and officers
seemed to be ticketing cars that had been effectively block-
ing traffic on Ecker Street and Jessie Street. Finally, Schmidt
noticed Roy Hong among the demonstrators that afternoon.
Not only did Respondent concede responsibility for the dem-
onstrations at 25 Ecker but also Respondent failed to offer
any evidence, contradicting the foregoing accounts of what
occurred.
As a defense against the allegations of secondary activity
with regard to the conduct at 25 Ecker, Respondent argues
that the contract between Brighton Pacific and GMG creates
a joint employer relationship over the janitors. In this regard,
John Schmidt testified that the Owners Association board of
Directors has authority to hire employees of a vendor but de-
nied that it had any supervisory or veto power over GMG’s
authority to hire its own employees for 25 Ecker. As to ter-
minating janitors at 25 Ecker, Schmidt testified that, while
Brighton Pacific has never done so, ‘‘we have the right to
request that someone be replaced if they’re not performing.’’
He then later explained that, if GMG refused such a request,
‘‘when it came time for the end of the contract, it wouldn’t
be renewed.’’ As to directing the work of the janitors, the
record establishes that GMG has a supervisor for the janitor
crew in the building and that Schmidt denied monitoring
their work. However, he conceded that, while not having au-
thority to tell janitors how to perform their work, Brighton
Pacific does possess authority to tell a janitor to perform a
particular task ‘‘if they’re not conforming to the cleaning
schedule.’’ Further, Schmidt testified that Brighton Pacific is
responsible for reviewing GMG’s performance in accord
with the contract and that he does so ‘‘independently.’’ Ac-
cording to him, such means that ‘‘when I’m in the building
I look for things. Or I come in early. That’s when we would
generally check . . . the previous night’s cleaning.’’ He
added that, if problems exist, he discusses them with the
GMG field supervisor. As to other matters, Schmidt testified
that GMG is solely responsible for granting time off to jani-
tors or payroll processing and that, as the contractual cost is
fixed, Brighton Pacific need not increase payments to GMG
if the latter adds janitors or increases their rates of pay.
B. Analysis
1. General legal framework
Based on the foregoing, the instant consolidated com-
plaints allege that Respondent engaged in conduct violative
of Section 8(b)4)(i) and (ii)(B) of the Act. That provision
provides, in pertinent part, as follows:
Sec. 8(b) It shall be an unfair labor practice for a labor
organization or its agents—
. . . .
(4)(i) to engage in, or to induce or encourage any in-
dividual employed by any person engaged in commerce
or in an industry affecting commerce to engage in, a
strike or a refusal in the course of his employment to
use, manufacture, process, transport, or otherwise han-
dle or work on any goods, articles, materials or com-
modities or to perform any services; or (ii) to threaten,
coerce, or restrain any person engaged in commerce or
in an industry affecting commerce, where in either case
an object thereof is:—
. . . .
(B) forcing or requiring any person to cease using,
selling, handling, transporting, or otherwise dealing in
the products of any other producer, processor, or manu-
facturer, or to cease doing business with any other per-
son . . . . Provided, That nothing contained in this
clause (B) shall be construed to make unlawful, where
not otherwise unlawful, any primary strike or primary
picketing;
. . . .
. . . Provided further, That for the purposes of this
paragraph (4) only, nothing contained in such paragraph
shall be construed to prohibit publicity, other than pick-
eting, for the purpose of truthfully advising the public
. . . of . . . a primary labor dispute . . . .
As the Supreme Court has explained, the above-quoted pro-
vision of the Act reflects ‘‘the dual congressional objectives
of preserving the right of labor organizations to bring pres-
sure to bear on offending employers in primary labor dis-
putes and of shielding unoffending employers and others
from pressure in controversies not their own.’’ NLRB v. Den-
ver Building Trades Council, 341 U.S. 675, 692 (1951).
Thus, while Section 8(b)(4)(B) of the Act leaves unfettered
a labor organization’s traditional right to engage in direct ac-
tion against an employer, with which it is engaged in a pri-
mary labor dispute, including the right to induce the primary
employer’s employees to engage in a strike or refusal to han-
dle goods, the provision’s more ‘‘narrowly focused’’ purpose
is to ‘‘restrict the area of industrial conflict insofar as this
could be achieved by prohibiting the most obvious, wide-
spread, and . . . dangerous practice of unions to widen that
conflict’’ and coerce neutral employers not concerned with
the primary dispute. Carpenters Los Angeles County District
Council Local 1976 v. NLRB, 357 U.S. 93, 100 (1958).
There are essentially two elements necessary to establish
a violation of Section 8(b)(4)(i) and (ii)(B) of the Act. First,
a labor organization must engage in conduct which induces
or encourages individuals to engage in a strike or refusal to
743SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
89 Teamsters Local 802 v. Wohl, 315 U.S. 769, 776 (1942) (Doug-
las, J., concurring).
perform services for their employer or which threatens, co-
erces, or restrains any person. Further, the object of the fore-
going conduct must be to force or require any person to
cease dealing with or doing business with any other person.
Electrical Workers Local 761 v. NLRB, 366 U.S. 667, 673
(1961); Iron Workers Local 378 (McDevitt & Street), 298
NLRB 955, 958 (1991); San Francisco Building Trades
Council (Goold Electric), 297 NLRB 1050, 1055 (1991); Los
Angeles Newspaper Guild Local 69 (Hearst Corp.), 185 U.S.
303, 304 (1970). Moreover, ‘‘it is clear that a violation of
[the above provision of the Act] cannot be based [merely] on
the desire or hope of a labor organization that its [conduct]
will influence individuals to withhold their services nor on
the effect that [conduct] has had in that regard.’’ McDevitt
& Street, Inc., supra; Goold Electric, supra. Also, while a
cease dealing with or doing business with object is, of
course, required for finding a violation, it is not necessary
that such be ‘‘the sole object’’ of the allegedly unlawful con-
duct. Denver Building Trades Council, supra at 689. Finally,
as pointed out by counsel for the General Counsel, it is no
less a violation of Section 8(b)(4)(B) of the Act for a labor
organization to disrupt the business of an unoffending neutral
employer, which has no business relationship with the pri-
mary employer, in the hope that said neutral will be pres-
sured into interceding in a labor dispute between the labor
organization and the primary employer. Iron Workers Local
272 (Miller & Solomon), 195 NLRB 1063 (1972); Hearst
Corp., supra at 322.
With regard to 8(b)(4)(i) and (ii) violative conduct, it is,
of course, clear that picketing, a form of conduct which
‘‘may induce action of one kind or another irrespective of
the nature of the ideas which are being disseminated,’’89 in-
duces or encourages employees within the meaning of Sec-
tion 8(b)(4)(i) and restrains or coerces employers within the
meaning of Section 8(b)(4)(ii) and that individuals patrolling
and carrying placards attached to sticks constitutes the classic
form of picketing involved in alleged secondary boycott
cases. Teamsters Local 315 (Atchison, Topeka & Santa Fe
Railway Co.), 306 NLRB 616 (1992); Teamsters Local 677
(J. H. Hogan, Inc.), 299 NLRB 499 (1990); McDevitt &
Street, supra. It is also true, however, that neither patrolling
alone nor patrolling combined with the carrying of placards
are essential elements to a finding of picketing; rather, the
‘‘important’’ or essential feature of picketing is the posting
of individuals at entrances to a place of work. Laborers
Local 389 (Calcon Construction Co.), 287 NLRB 570, 573
(1987); Teamsters Local 282 (General Contractors Assn. of
New York), 262 NLRB 528, 529 (1982); Lumber & Sawmill
Workers Local 2797 (Stoltze Land & Lumber Co.), 156
NLRB 388 (1965). Moreover, 8(b)(4)(i) and (ii) violative
conduct may involve conduct which does not constitute ac-
tual picketing but which, nevertheless, induces or encourages
employees and restrains or coerces employers. Thus, the
Board and the courts have recognized a concept known as
‘‘signal picketing,’’ which, as with actual picketing, concerns
conduct operating ‘‘as a signal to induce action by those to
whom the signal is given.’’ Iron Workers Local 433 v.
NLRB, 598 F.2d 1154 (9th Cir. 1979); Teamsters Local 688
(Levitz Furniture Co. of Missouri), 205 NLRB 1131, 1133
(1973). Such cases typically involve the stationing of union
business agents near an entrance to a jobsite or the placing
of placards near an entrance—positioned so that anyone ap-
proaching can read the printed message. Calcon Construc-
tion, supra; Operating Engineers Local 12 (Hansel Phelps
Construction Co.), 284 NLRB 246, 248 (1987). Also,
8(b)(4)(i) and (ii) violative conduct may be ‘‘a form of pick-
eting’’ or actions which ‘‘[overstep] the bounds of propriety
and [go] beyond persuasion’’ so as to become ‘‘coercive to
a very substantial degree.’’ Mine Workers District 29 (New
Beckley Mining Corp.), 304 NLRB 71, 72 (1991); Service
Employees Local 399 (William J. Burns International Detec-
tive Agency), 136 NLRB 431, 437 (1962). Thus, in New
Beckley Mining, finding that an estimated crowd of between
50 and 160 persons gathered in the parking lot and surround-
ing areas of a motel at approximately 4 or 4:30 a.m., the
Board concluded that such ‘‘‘mass activity’’’ constituted a
form of picketing, and, in Burns Detective Agency, finding
that groups, varying in size from 20 to 70 persons and com-
prised of members of a labor organization, who were not car-
rying placards but were distributing handbills, marched in an
elliptical path immediately in front of the main entrance to
an exhibition hall and caused patrons to force their way
through in order to enter the building, the Board, while ab-
staining from labeling the conduct, concluded that such was
coercive within the meaning of Section 8(b)(4)(ii). Although
not explicated as such, the Board’s New Beckley and Burns
Detective Agency analysis seemingly explains a finding that
photographing the cars of neutrals as they entered a jobsite
constituted 8(b)(4)(i) and (ii) conduct. General Services Em-
ployees Local 73 (Andy Frain, Inc.), 239 NLRB 295, 306
(1978). Finally, besides picketing or related conduct, overly
broad or ambiguous threats of picketing may constitute
8(b)(4)(ii) violative conduct. Food & Commercial Workers
Local 506 (Coors Distributing Co. of San Jose), 268 NLRB
475, 478 (1983); Associated Musicians of Greater New York
Local 802 (Huntington Town House), 225 NLRB 559 at fn.
1 (1976).
Turning to the matter of determining whether a labor orga-
nization’s conduct is for the 8(b)(4)(B) proscribed cease
doing business object, it must be noted that the traditional
picketing and related conduct herein, for the most part, oc-
curred in front of commercial office buildings, and an office
building has been classified by the Board, in cases involving
conduct allegedly violative of Section 8(b)(4)(B) of the Act,
as a common situs. Building Service Employees Local 254
(Lechmere Sales), 173 NLRB 280 (1968). In common situs
cases, evidence of object often is not readily discernible, and
it is often difficult to distinguish lawful primary activity from
unlawful secondary conduct. Nevertheless, in each such case,
‘‘the controlling consideration [must be] to require that the
picketing be conducted so as to minimize its impact on neu-
tral employers insofar as this can be done without substantial
impairment of the effectiveness of the picketing in reaching
the primary employees.’’ Electrical Workers IBEW Local
970 (Interox America), 306 NLRB 54, 55 (1992). It is well
settled that, in a common situs situation, in order to ascertain
whether a labor organization’s picketing conforms with the
Board’s above-stated concern and, hence, constitutes lawful
primary activity, such must be analyzed under the Moore
Dry Dock standards. Sailors Union (Moore Dry Dock), 92
NLRB 547, 549 (1950); Service Employees, supra. Thus, in
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
90 The respective testimony of the witnesses, who testified on be-
half of the General Counsel (Michael Boschetto, Ruth Wheeler,
Richard Calhoun, Gerald Slemp, Bill Miranda, and Linda Taggart)
was uncontroverted and corroborative with regard to the picketing at
49 Stevenson during the first 3 weeks of June 1990. While noting
internal inconsistencies in the testimony of Boschetto and troubling
inconsistencies between the testimony of Wheeler and that of
Boschetto as to discontinuation of Trinity’s subcontracting of the
night janitorial work, I found neither Boschetto nor Wheeler or the
remainder of the above witnesses inherently dishonest so as to dis-
credit any of them notwithstanding their uncontroverted testimony
regarding the picketing.
91 I have no doubt that Respondent also was concerned with Trin-
ity’s subcontracting of janitorial work to Maurice Diaz, a contractor
whose terms and conditions of employment for his employees alleg-
edly were violative of various State of California labor code provi-
sions, and the filing of a lawsuit against Diaz and Trinity imme-
diately after the picketing at 49 Stevenson confirms this. However,
the circumstances of this case convince me that Respondent’s over-
riding motivation for picketing at 49 Stevenson, during the first 3
weeks of June 1990, was Trinity’s status as a nonunion building
maintenance contractor. Thus, in the first week of the picketing, Mi-
chael Boschetto spoke to Richard Leung, with the latter informing
Boschetto that he wanted to speak to Boschetto with regard to how
Trinity did business. Boschetto asked, ‘‘How’s that,’’ and Leung re-
plied, ‘‘non-union.’’ Leung failed to deny this conversation, and
Boschetto shall be credited as to what was said. Furthermore, at var-
ious times during the 3 weeks of picketing, Respondent’s pickets
distributed a handbill, in front of the building, which asserted that
the building management was using a nonunion janitorial contractor
and that management was taking jobs from union members and im-
plored tenants to inform the building management how ‘‘displeased’’
they were over this ‘‘scam.’’ While the leaflet refers to NAMCO’s
role in subcontracting to Trinity, I have discussed above that, as a
matter of law and fact, Respondent could not and did not have a
primary labor dispute with NAMCO, which employed no janitors.
Finally, Respondent’s picketing at 49 Stevenson seems to have been
done in conjunction with similar conduct at 1 Ecker, located across
the street from 49 Stevenson, and that picketing apparently was
aimed at West Bay, a nonunion janitorial company, with whom Re-
spondent has had a longstanding labor dispute.
order to be considered to be primary activity, the labor orga-
nization’s picketing must meet the following criteria: ‘‘(1)
[It] must be limited to times when the primary employer’s
employees are actually present at the common site; (2) [it]
must be limited to ‘places reasonably close’ to the operations
of the primary employer’s workers; (3) the picket signs must
show clearly that the dispute is with the primary employer
alone; and (4) the primary employer’s workers must be en-
gaged in the company’s normal business.’’ Los Angeles
Building & Construction Trades Council (Silver View Associ-
ates), 216 NLRB 307, 308 (1975). Further, the Board has
long held that ‘‘in a common situs situation the failure of a
picketing union to comply with any one of the Moore Dry
Dock criteria gives rise to a strong, albeit rebuttable pre-
sumption that the picketing had an unlawful secondary ob-
ject.’’ New Beckley Mining Corp., supra at 72; Service Em-
ployees Local 87 (Pacific Telephone), 279 NLRB 168, 175
(1986). Finally, it is also well settled that the foregoing
standards are ‘‘only guidelines not to be mechanically ap-
plied.’’ Rather, they are to be applied with ‘‘common sense’’
and in compliance with ‘‘the dual congressional objectives’’
in enacting the secondary boycott provisions of the Act. Ac-
cordingly, ‘‘while compliance might give rise to a rebuttable
inference of primary picketing, the totality of the evidence
may reveal an underlying secondary objective and overcome
the presumption.’’ McDevitt & Street Co., supra at 958.
2. The legality of Respondent’s conduct in light of the
applicable legal principles
Initially, with regard to the instant complaints, it is alleged
that Respondent was engaged in primary labor disputes with
the nonunion building maintenance companies herein (Trin-
ity, West Bay, Complete, and GMG) and that Respondent’s
disputes are not with the various building owners, property
managers, or tenants. Except with regard to the relationship
between IMA and Complete, a matter to be discussed infra,
counsel for the General Counsel is correct on these points.
While it might seem plausible to assert that Respondent’s
real disputes were with Koret and the various building man-
agers for contracting with the above janitorial contractors,
close scrutiny reveals the specious nature of such a conten-
tion. Thus, the record evidence clearly establishes that, in
launching its ‘‘Justice for Janitors’’ campaign, Respondent
evidenced its determination to attack the nonunion status of
each of the above building maintenance contractors and that,
rather than the generic fact of subcontracting by the building
owners and managers, the nonunion status of the contractors
was Respondent’s primary concern. Furthermore, the record
also establishes that neither Koret, the property managers,
nor any tenant employs janitors; therefore, as a matter of
law, Respondent’s primary labor disputes herein must have
been with the nonunion building maintenance contractors,
who employ the employees whom Respondent nominally
represents. Edward J. DeBartolo Corp. v. NLRB, 485 U.S.
568 (1988); Cedar Rapids Building Trades Council (Siebke-
Hoyt & Co.), 283 NLRB 1155, 1157 (1987).
Turning to the complaint in Case 20–CC–3162, the
uncontroverted record evidence90 is that, in furtherance of its
primary labor dispute with Trinity, regarding the latter’s sta-
tus as a nonunion contractor,91 Respondent engaged in tradi-
tional picketing, for which conduct it conceded responsibil-
ity, at 49 Stevenson, during the first 3 weeks of June 1990,
for, at least, 3 days of each week. Based on the
uncontroverted and credited testimony, I find that Trinity was
the building maintenance contractor at 49 Stevenson at all
times material herein; that, on the days of the picketing, a
group of between 15 and 30 individuals marched in a cir-
cular formation, on the Stevenson Street side of the building,
in front of the main entrance; that the picketing commenced
each day at approximately 3:30 p.m. and continued for an
hour or two; that the pickets carried placards reading ‘‘Jus-
tice for Janitors—Local 87,’’ ‘‘Unfair Labor Practices—
Local 87,’’ ‘‘no layoffs no paycuts—Local 87,’’ and ‘‘decent
peaceful contract—Local 87’’; and that, despite acknowledg-
ing receipt of attorney Rechtschaffen’s hand-delivered June
11 letter, informing it that Trinity would no longer have a
day janitor at 49 Stevenson as of that date and that Trinity’s
janitors would only be present between 6:30 p.m. and 1 a.m.,
Respondent continued the aforementioned picketing during
the daytime. As stated above, as a matter of law and based
on the substantial record evidence herein, I believe that, at
all times during the picketing, Respondent was engaged in a
primary labor dispute with Trinity; however, there is no
745SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
92 I shall, accordingly, recommend dismissal of the 8(b)(4)(i)(B)
allegation. Thus, neither the picket signs nor the handbill urged em-
ployees of tenants or of NAMCO not to enter the building and no
oral appeals were made. Moreover, there is no record evidence that
employees of any tenant were members of a labor organization, and
no strike sanctions from any other labor organization were sought.
In these circumstances, it can not be said that Respondent’s picket-
ing was designed to induce or encourage any employee to refuse to
work. Laborers Local 332 (C.D.G., Inc.), 305 NLRB 298, 305
(1991); New Beckley Mining Corp., supra at 73; Burns Detective
Agency, supra at 437.
93 The witnesses, who testified on behalf of the General Counsel,
Bill Miranda and Lisa Baddeley, were uncontroverted with regard to
the events of June 14 and July 9, 1990. However, as set forth above,
Miranda and Baddeley each testified inconsistently with regard to
West Bay’s subcontracting of work and they also contradicted each
other on that point. However, their respective testimony, concerning
the events of July 9, was corroborative. In these circumstances and
noting that their accounts of the events of June 14 and July 9 were
uncontroverted, I shall credit Miranda as to what occurred on June
14 and Miranda and Baddeley as to what occurred on July 9.
94 There can be no doubt that, while, on June 1, Richard Leung
mentioned to Lisa Baddeley that West Bay assertedly paid below
minimum wage and hired children, the essence of Respondent’s pri-
mary labor dispute with West Bay concerned its status as a nonunion
contractor. Thus, since, at least, 1987, Respondent has been engaged
in a labor dispute with West Bay over its nonunion status. Further,
in a July 3 letter to Baddeley, Roy Hong wrote that he understood
that Gallelli Real Estate was taking bids from union janitorial con-
tractors and hoped that one such firm would be chosen. Also, Rich-
ard Leung told Baddeley that he would call off the July 9 dem-
onstration if Gallelli chose a union contractor. Further, the leaflet,
which Respondent distributed at 49 Stevenson specifically referred
to West Bay’s nonunion status. Finally, while it might be argued that
Leung’s conversation with Baddeley evidences that the primary dis-
Continued
record evidence that Trinity’s name ever appeared on Re-
spondent’s picket signs during the period of the picketing.
Based on the foregoing, the complaint alleges and counsel
for the General Counsel argues that Respondent’s picketing
at 49 Stevenson, during the first 3 weeks of June 1990, was
violative of Section 8(b)(4)(i) and (ii)(B) of the Act. In this
regard, based on the leaflet, which the pickets distributed,
there can be no doubt that Respondent’s conventional picket-
ing, during this period, was aimed at NAMCO and the ten-
ants of 49 Stevenson and, therefore, constituted coercive con-
duct within the meaning of Section 8(b)(4)(ii) of the Act.
Atchison, Topeka & Santa Fe Railroad Co., supra; Interox
America, supra; J. H. Hogan, Inc., supra; and McDevitt &
Street Co., supra. The remaining, and central, issue herein
concerns the object of Respondent’s picketing—was such
primary or unlawful secondary picketing with a cease doing
business objective. Utilizing the applicable Moore Dry Dock
criteria for lawful, primary common situs picketing, it is
readily apparent the instant picketing failed to conform with
three of the four evidentiary standards, thereby indicating a
secondary intent. Thus, at no time during the course of the
picketing did Respondent’s picket signs identify Trinity as
the employer with whom Respondent was engaged in the pri-
mary labor dispute. Goold Electric, Inc., supra at 1050 fn.
1; Service Employees Local 87 (Stay-King Maintenance Co.),
279 NLRB 168 (1986). Also, on and after June 11, Trinity’s
janitors were no longer at 49 Stevenson between the hours
of 1 a.m. and 6:30 p.m., and, notwithstanding knowledge of
this fact, Respondent continued to picket at the building,
after June 11, from 3:30 to approximately 5 p.m. when no
Trinity employees were working there. As with the failure to
identify the primary employer on the picket signs, picketing
at times when the primary employer’s employees are not
present and are not engaged in their normal work evidences
a secondary object of the picketing. Electrical Workers IBEW
Local 3 (Kidder Peabody & Co.), 270 NLRB 1025, 1028
(1984); Sheet Metal Workers Local 80 (Ciamillo Heating &
Cooling), 268 NLRB 4, 8 (1983); Service Employees Local
77 (Thrust IV), 264 NLRB 628 (1982). Besides a failure to
adhere to the Moore Dry Dock criteria, Respondent’s second-
ary objective can be inferred from the handbill, which was
distributed during the picketing, with said handbill falsely
casting the responsibility for the picketing on, and identifying
as the entity with whom Respondent was engaged in the pri-
mary labor dispute, the building manager, NAMCO. NLRB
v. Service Employees Local 77, mem. 753 F.2d 1083 (9th
Cir. 1985); Pacific Telephone, supra at 177. In these cir-
cumstances, I am convinced that the picketing at 49 Steven-
son was intended to force NAMCO to cease doing business
with Trinity and to pressure the 49 Stevenson tenants to, in
turn, bring pressure to bear on NAMCO to cease doing busi-
ness with Trinity.
As a defense to these allegations and those in the other,
consolidated complaints, Respondent’s counsel raises a free
speech issue, arguing that ‘‘the public has a right to know,
and [Respondent] has a right to inform the public’’ and that
the General Counsel may not limit the picketing to times
after the business world has gone home and the streets are
deserted. I find no merit in this argument. Thus, the issues
herein concern Respondent’s picketing activities; there are no
complaint allegations regarding handbilling, and, at any time
of day, at 49 Stevenson or at any other location, Respondent
may truthfully advise the public of its concerns and objec-
tives, through handbilling, without fear that such would be
subject to the secondary boycott provisions of the Act.
DeBartolo Corp., supra. However, if Respondent chooses to
advise the public of its labor disputes through picketing, as
it did in this and the other cases, notwithstanding the incon-
venience caused by conformity to the Board’s Moore Dry
Dock standards, Respondent’s ‘‘interest in communicating its
message to the passing public must yield to the attainment
of the Congressional objective of shielding neutral employers
and their employees from enmeshment in . . . Respondent’s
dispute with primary employers.’’ Interox America, supra at
56 (1992). Further, assuming that the picketing at 49 Steven-
son was for the purpose of bringing additional pressure to
bear on Trinity resulting from its continued subcontracting of
work to Maurice Diaz, the failure to conform to the Moore
Dry Dock standards created a rebuttable presumption that
said picketing also had a secondary object (New Beckley
Mining Corp., supra), and, as stated above, it is well settled
that if an object is secondary, the picketing must be found
violative of the provisions of Section 8(b)(4)(B) of the Act
(Denver Building Trades Council, supra). Accordingly, it
must be held that Respondent’s picketing at 49 Stevenson,
during the first 3 weeks of June 1990, was violative of Sec-
tion 8(b)(4)(ii)(B) of the Act, and I so find.92
With respect to the complaint in Case 20–CC–3164, the
uncontroverted record evidence93 is that, in furtherance of its
primary labor dispute with West Bay, regarding the latter’s
status as a nonunion building maintenance contractor,94 Re-
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pute herein was between Respondent and Gallelli, I have previously
discussed that, as a matter of law and fact, Respondent’s primary
labor dispute herein was with West Bay and not with Gallelli, which
employed no janitorial employees.
95 Inasmuch as Roy Hong was standing next to the women as she
spoke and said nothing to indicate disapproval, he must be held to
have ratified what she said. Avis Rent-A-Car System, 280 NLRB 580
at fn. 3 (1986).
96 As with Respondent’s picketing at 49 Stevenson, there is no
record evidence that employees of any tenant were members of a
spondent engaged in traditional picketing at 1 Ecker on June
14, 1990, and in a demonstration in front of the building on
July 9 of that year, conduct for which it admitted responsibil-
ity. In light of the uncontroverted record evidence and my
credibility resolutions, I find that, at the time of the above
conduct, West Bay was the janitorial contractor at 1 Ecker;
that, at some point during the afternoon of June 14, 1990,
Respondent’s pickets, carrying placards, reading ‘‘No Service
Cuts—Local 87’’ and ‘‘No Layoffs—Local 87,’’ moved
from in front of 49 Stevenson to across the street and inside
the arcade area of the 1 Ecker building and commenced pick-
eting at that location. While there is no indication of how
long the pickets remained at the 1 Ecker building, the record
establishes that, at no point during the picketing, did the
placards name West Bay as the employer with whom Re-
spondent was engaged in a primary labor dispute and that no
employees of West Bay were working inside 1 Ecker during
the picketing. I further find that, on July 9, 1990, Respondent
commenced a demonstration in front of the 1 Ecker building
at approximately 11:30 in the morning; that a maximum of
20 individuals, many wearing red T-shirts with ‘‘Justice for
Janitors’’ printed on them, participated; that, at the outset,
the demonstration consisted of the attempted attaching of a
large, white banner, bearing the ‘‘Justice for Janitors’’ mes-
sage, to the building and participants standing on Ecker
Street, waving red cloth flags, on which were printed the
words ‘‘Justice for Janitors,’’ listening to folk singers and
chanting along in unison with a person on a bullhorn; that,
eventually, the participants moved inside the 1 Ecker arcade
and began marching in a circular path while blowing on
whistles and chanting loudly; that, at one point, demonstra-
tors attempted to enter the building but were stopped by se-
curity guards; that, on another occasion, Lisa Baddeley
exited the building through the front doors and requested that
they reduce the noise level of the demonstration and was im-
mediately surrounded by 12 to 15 demonstrators, who were
shouting at her and standing so close to the doors that they
could not have opened; that Baddeley escaped back inside
the lobby, calmed down, and again ventured outside; that she
again was surrounded by demonstrators and, when she de-
manded that they leave 1 Ecker’s property, was told by Roy
Hong that none of the demonstrators understood English; and
that, with Hong standing next to her, at one point, a female
demonstrator yelled, ‘‘We’re gonna come back here until the
property management sign the union contract.’’
The complaint alleges and counsel for the General Counsel
argues that the conventional picketing on June 14 and the
demonstration on July 9 were both violative of Section
8(b)(4)(i) and (ii)(B) of the Act. Of course, there can be no
dispute that the traditional placard picketing on June 14 con-
stituted 8(b)(4)(ii) violative conduct. Atchison, Topeka &
Santa Fe Railroad Co., supra; Interox America, supra; J. H.
Hogan, Inc., supra; and McDevitt & Street Co., supra. As to
what occurred on July 9, while the complaint characterizes
the conduct as ‘‘patrolling and signal picketing,’’ counsel ar-
gues that, however the temporary blocking of the doors, the
surrounding of Baddeley, the attempt to enter the building,
the marching and excessive amount of noise in front of the
entrance, and the attaching of the large banner to the build-
ing are characterized, such clearly constituted unlawful,
‘‘confrontational conduct.’’ I agree. Thus, it is beyond dis-
pute that Respondent’s tactics, on July 9, made ingress to
and egress from 1 Ecker more difficult and that the dissemi-
nation of publicity, regarding its dispute with West Bay, did
not require the tactics utilized by Respondent. Indeed, what
occurred, beyond the folk singing and music, can only be de-
scribed as constituting a form of restraint and coercion on
Gallelli and on the building tenants—a fact one may infer
from the excessive noise, the harassment of Baddeley, and
the failed effort to enter the building. Whether such may be
characterized as picketing is questionable, but, at the very
least, what occurred that day certainly constituted a form of
picketing, conduct overstepping ‘‘the bounds of propriety’’
and going ‘‘beyond persuasion so that it became coercive’’
within the meaning of Section 8(b)(4)(ii) of the Act. New
Beckley Mining Corp., supra; Burns Detective Agency, supra,
136 NLRB 431 (1962).
As to whether the foregoing acts and conduct were in-
tended for a proscribed object, the salient facts, regarding the
June 14 picketing, are that West Bay’s name never appeared
on Respondent’s picket signs; that the picketing occurred at
a time when no janitorial employees of West Bay were
working inside 1 Ecker; and that, therefore, there was non-
compliance with three of the Moore Dry Dock criteria and
the establishment of a rebuttable presumption of unlawful,
secondary picketing. Goold Electric, supra; Stay-King Main-
tenance Co., supra; Kidder Peabody, supra; and Ciamillo
Heating & Cooling, supra. Likewise, based on the record as
a whole, I believe that Respondent’s ‘‘picketing’’ on July 9
was for a secondary object. Thus, Respondent failed to com-
ply with the Moore Dry Dock criteria and displayed nothing
that would have identified the nature of the dispute that led
to the ‘‘picketing’’ or the party with whom there was a dis-
pute. New Beckley Mining Co., supra at 72. Further, during
a telephone conversation shortly before the demonstration on
July 9, Richard Leung told Baddeley ‘‘that if I did go with
a union janitorial contractor, if I signed even though it
wouldn’t go start until August or September . . . he would
indeed stop the planned demonstration,’’ and after Baddeley
refused to look at other bids, Leung said she would ‘‘be very
sorry.’’ What must be characterized as a threat by Leung evi-
dences Respondent’s objective of forcing Gallelli to cease
doing business with West Bay. Service Employees Local 254
(Janitronic, Inc.), 271 NLRB 750, 752 (1984). Finally, the
statement of the female demonstrator, during the July 9
‘‘picketing,’’ that Respondent would continue demonstrations
until Gallelli executed a union contract, further illustrated the
secondary nature of Respondent’s conduct.95 Accordingly,
based on the foregoing, and the record as a whole, I find that
Respondent’s June 14 and July 9 acts and conduct, which
were aimed at Gallelli and at the building tenants, in front
of 1 Ecker were violative of Section 8(b)(4)(ii)(B) of the
Act.96
747SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
labor organization, and no strike sanctions from any other labor or-
ganization were sought. In these circumstances, it can not be said
that Respondent’s picketing was designed to induce or encourage
any employee to refuse to work. C.D.G., Inc., supra; New Beckley
Mining Corp., supra; Burns Detective Agency, supra.
97 With regard to Case 20–CC–3165, the witnesses on behalf of
the General Counsel were Bill Miranda and Rita Hernandez; how-
ever, only the latter testified as to the allegedly unlawful picketing
and was uncontroverted on that subject. While Hernandez’ testimony
was internally inconsistent with regard to when she first became
aware of West Bay’s use of subcontractors and with her pretrial affi-
davit with regard to the gate designation sign language, she did not
appear to be an inherently dishonest witness and, given that her testi-
mony, concerning the picketing, was uncontroverted, I shall credit
her version of the events at issue. Concerning Case 20–CC–3168,
the main witness, as to the complaint allegation was Attorney David
Culver. While noting that the witness’ testimony was contradictory
and inconsistent with his contemporaneous notes of the crucial Au-
gust 24 telephone conversation with Roy Hong, Culver appeared to
be an honest and forthright witness, and his testimony was
uncontroverted by Roy Hong, who was not called as a witness by
Respondent. While averring that Hong was no longer employed by
Respondent and no longer in San Francisco, Respondent’s counsel
offered no explanation why he would be unavailable for subpoena.
In these circumstances, given my view as to his testimonial de-
meanor, I shall credit Culver herein. Finally, as to Case 20–CC–
3174, the General Counsel’s witness was Leopoldo Abad. His testi-
monial demeanor was that of an honest and candid witness, and, not-
ing that Abad was uncontroverted, I shall credit him herein.
98 There can be no question that what occurred at 631 Howard and
55 Hawthorne was a continuation of Respondent’s ‘‘Justice for Jani-
tors’’ campaign against nonunion building maintenance contractors,
with West Bay being, perhaps, number one on Respondent’s hit list.
Notwithstanding that Respondent publicized a demonstration at 631
Howard and 55 Hawthorne in order to protest West Bay’s use of
Maurice Diaz as a subcontractor and the latter’s asserted violations
of the California labor code, that the latter’s nonunion status was the
motivation for Respondent’s conduct at these two buildings cannot
be questioned. Thus, on August 1, 1990, JMA received a letter from
Respondent, stating that their dispute was caused by JMA’s act of
replacing its union signatory janitorial contractor with West Bay.
Moreover, during the August picketing, West Bay was named on
Respondent’s picket signs. Further, during telephone and face-to-face
conversations with David Culver later in August, Richard Leung and
Roy Hong told him that they wanted JMA to entertain bids for the
janitorial work in the two buildings from a union contractor and ter-
minate its West Bay contract. Further, Respondent, in an October 30
letter to JMA, wrote that the latter had jeopardized Respondent’s
hopes by failing to award the janitorial contract to a responsible
union contractor. Finally, while much of the documentary evidence
in these cases, including notices publicizing the picketing and leaf-
lets distributed by the pickets, suggests that Respondent’s primary
dispute was with JMA because it was subcontracting with West Bay
for the janitorial work at 631 Howard and 55 Hawthorne, the fact
is that only West Bay employed janitorial employees or was contrac-
tually obligated to provide them. JMA nor any building tenants had
such employees, and, as stated above, as a matter of law, Respond-
ent had no primary labor dispute with JMA.
Turning next to the complaints in Cases 20–CC–3165, 20–
CC–3168, and 20–CC–3174, the acts and conduct concerned
with the 631 Howard and 55 Hawthorne buildings, for which
Respondent conceded responsibility, the uncontroverted
record evidence97 is that, engaged in a primary labor dispute
with West Bay, involving the latter’s status as a nonunion
building maintenance contractor,98 Respondent engaged in
conventional picketing at the two buildings on August 3,
1990; on August 24, threatened JMA’s attorney, Culver, with
renewed picketing if JMA did not award the building mainte-
nance contract for the buildings to a union signatory contrac-
tor and terminate West Bay; and, on November 7, engaged
in confrontational and coercive conduct and picketing in
front of the two buildings. More specifically, I find that, at
all times material herein subsequent to August 1, West Bay
was the janitorial contractor for the two buildings; that, as
of August 2, a day janitor was employed at the buildings;
that, on or about August 1, despite representing no employ-
ees at the two buildings, Respondent sought and received,
from the San Francisco Labor Council, strike sanction
against 631 Howard and 55 Hawthorne; that, late in the
afternoons of August 1 and 2, Respondent engaged in picket-
ing at the front entrance to 55 Hawthorne and at the front
and construction entrances to 631 Howard with placards
reading ‘‘West Bay Unfair, Local 87’’ and ‘‘West Bay on
Strike, Local 87’’; that, on August 2, the attorney for West
Bay drafted and hand-delivered a letter, stating that, effective
immediately, employees of West Bay and its subcontractors
only would be working in the two buildings during the hours
6 p.m. through 2 a.m. each day, to Respondent; that Re-
spondent acknowledged receipt of said letter; that, notwith-
standing said letter and the absence of any West Bay janitors
in the buildings, on August 3, commencing at 7 a.m. and
continuing throughout the day, Respondent picketed at the
main entrances to 55 Hawthorne and 631 Howard and the
construction entrance to 631 Howard with placards, reading
‘‘West Bay, Unfair, Local 87’’ and West Bay, On Strike,
Local 87’’; and that, although scheduled to perform work
that day, no employees of any of the construction sub-
contractors reported for work at 631 Howard. I further find
that, prior to August 24, Respondent’s plan was to resume
picketing at the two buildings on August 27; that, on Friday,
August 24, JMA attorney, David Culver, spoke by telephone
with Roy Hong regarding the building maintenance work at
55 Hawthorne and 631 Howard and the possible replacement
of West Bay with a union signatory contractor; that, during
said conversation, after Culver said he doubted whether any
union contractor could submit a bid at a price competitive
with the West Bay contract, Hong said Respondent would re-
sume picketing on Monday morning as JMA had not done
what it had committed to do; that Culver replied that a re-
served gate system would be in place and that no West Bay
employees or those of its subcontractors would be present
except during the hours 6:01 p.m. through 2 a.m.; that Hong
responded that the problem was JMA’s failure to change its
contract from West Bay to a union contractor and that the
earlier reserved gate system had been tainted and Respondent
would engage in picketing at all entrances to the buildings;
that Culver then asked what it would take to forestall a re-
sumption of the picketing and Hong said that ‘‘it would take
an agreement on JMA’s part to go union’’; that Culver then
warned that picketing in noncompliance with the reserved
gate system or at times other than when West Bay was
present would be unlawful; and that Hong said Respondent
would be there at 6 a.m. to resume picketing. I also find that,
in response to a letter from Hong, in which he accused JMA
of breaching an agreement to hire a union building mainte-
nance contractor, on November 5, JMA’s attorney wrote to
Respondent, stating that there had never been any agreement
to hire a union contractor and that JMA’s decision was to
continue its building maintenance contract with West Bay;
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
99 While there is no record evidence that the picketing caused the
construction workers to not report for work, Respondent took credit
for that.
100 Respondent argues, with regard to the alleged threat, that Attor-
ney Culver ‘‘carefully planned and devised to be threatened’’ and
‘‘invited’’ the threat. I find no merit to this defense. Thus, from all
appearances, Roy Hong was an experienced union official and knew
exactly what he was saying to Culver. There is no indication that
Culver planted the seeds of unlawful conduct in an otherwise inno-
cent mind, and I shall not presume such.
101 With regard to the picketing at the Koret facility, counsel for
the General Counsel presented two witnesses, Richard Partida and
that, on November 7, commencing at 3:30 and continuing
until 5:30 p.m., approximately 40 individuals, including men
wearing baseball caps with ‘‘Local 87’’ printed on them,
marched in a closed, circular formation, carrying red cloth
banners, with the words ‘‘Justice for Janitors’’ printed on
them and chanting in unison with Linda Kahn, who was
shouting into a bullhorn slogans including ‘‘West Bay out,’’
‘‘JMA liars,’’ and ‘‘JMA unfair,’’ at the main entrance to 55
Hawthorne; and that no West Bay janitors were working in-
side the building during the course of the demonstration.
The above three complaints allege and counsel for the
General Counsel argues that Respondent’s picketing on Au-
gust 3, Hong’s threat of picketing on August 24, and Re-
spondent’s acts and conduct on November 7 were violative
of Section 8(b)(4)(i) and (ii)(B) of the Act. As to the conven-
tional picketing on August 3, I conclude that such was clear-
ly Section 8(b)(4)(i) and (ii) violative conduct. Atchison, To-
peka & Santa Fe Railroad Co., supra; J. H. Hogan, Inc.,
supra; and McDevitt & Street Co., supra. In this regard, un-
like the picketing at 49 Stevenson or 1 Ecker the past June,
as Respondent sought and obtained strike sanction prior to
the picketing and did so with placards, which misleadingly
proclaimed that Respondent was on strike against West Bay,
and as the picketing was partly conducted at the entrance uti-
lized by construction workers who were probably represented
by other labor organizations,99 it seems certain, and I be-
lieve, that not only was the picketing intended to coerce and
restrain JMA and the tenants of 631 Howard and 55 Haw-
thorne, within the meaning of Section 8(b)(4)(ii) of the Act,
but also such was meant to induce and encourage employees
to refuse to work, within the meaning of Section 8(b)(4)(i)
of the Act. Cf. Burns Detective Agency, supra. Moreover,
notwithstanding Respondent’s knowledge of the janitors’
work schedule, the picketing occurred at a time when no
West Bay or subcontractor janitors were working in either
631 Howard or 55 Hawthorne, and it is well settled that the
failure to conform to the Moore Dry Dock criteria, such as
picketing when no employees of the primary employer are
present at the worksite performing their normal job duties,
creates a rebuttable presumption of secondary intent for the
picketing. McDevitt & Street Co., supra at 958; Thrust IV,
supra, 264 NLRB 628. That said presumption of secondary
intent is warranted is buttressed by Respondent’s continued
practice of publishing and distributing documents, falsely
naming JMA as the party with which it was engaged in the
primary labor dispute. NLRB v. Local 77, supra. With regard
to the statements of Hong during his telephone conversation
with Attorney Culver on August 24, there can be no doubt
that, on behalf of Respondent, he threatened to resume pick-
eting at the two buildings and that the threats were for the
proscribed 8(b)(4)(B) objective. Thus, when asked what it
would take to prevent a resumption of the picketing, Hong
averred that JMA would have to agree to ‘‘go union,’’ there-
by implying that JMA would have to terminate its West Bay
contract. Inasmuch as the broadly stated threat was stated
with full knowledge of the reserved gate system and of the
exact hours when West Bay janitors would be working, it
was Hong’s burden to restrict his notice of impending picket-
ing. His failure to do so in light of the proscribed objective
renders his threats to JMA’s attorney violative of Section
8(b)(4)(ii)(B) of the Act. Coors Distributing Co., supra, 268
NLRB 475 (1983); Huntington Town House, supra, 225
NLRB 559 (1976).100 Turning to the November 7 incident,
the inescapable fact is that, for 2 hours, approximately 40 in-
dividuals patroled in front of the main entrance to 55 Haw-
thorne, carrying small red flag banners, on which was printed
the message ‘‘Justice for Janitors,’’ and chanting slogans.
One would only hesitate to term this activity picketing due
to the absence of message bearing placards, the hallmark of
conventional picketing. However, as stated above, the Board
has long held that the carrying of placards is not an essential
element to denote picketing; rather, the one essential feature
is the posting of individuals at entrances to a place of work.
Calcon Construction, supra, 287 NLRB 570 (1987); Stoltze
Land & Lumber Co., supra, 156 NLRB 388. Therefore, what
occurred in front of the entrance to 55 Hawthorne, on No-
vember 7, must be characterized as picketing (and not merely
as patroling and signal picketing as alleged in the complaint
in Case 20–CC–3174). Mine Workers District 12 (Truax-
Traer Coal Co.), 177 NLRB 213, 218 (1969). Moreover, not
only, in the circumstances of this case as described above,
must Respondent’s picketing be found to violate Section
8(b)(4)(i) and (ii) of the Act but also the record evidence
manifests the existence of the proscribed 8(b)(4)(B) object.
Thus, Roy Hong’s statement to attorney Culver, on August
24, establishes that the picketing was designed to force JMA
to terminate its business relationship with West Bay in order
to enter into an agreement with a union signatory building
maintenance contractor and to force the building tenants to
pressure JMA to take such action. Confirmation of Respond-
ent’s secondary objective is, of course, its failure to comply
with the Moore Dry Dock evidentiary standards that day.
Thus, Respondent engaged in picketing without clearly iden-
tifying with whom it was engaged in a primary labor dispute
and at a time when no West Bay employees were working
in the building. New Beckley Mining Co., supra; McDevitt &
Street Co., supra. Further confirmation of Respondent’s pro-
scribed object may be inferred from the myriad documents,
falsely naming JMA as the entity with whom Respondent
was engaged in the primary labor dispute. NLRB v. Local 77,
supra. Based on the foregoing, and the record as a whole, I
find that, on August 3, Respondent’s picketing was in viola-
tion of Section 8(b)(4)(i) and (ii)(B) of the Act; that Hong’s
threat of picketing on August 24 was violative of Section
8(b)(4)(ii)(B) of the Act; and that Respondent’s picketing on
November 7 was violative of Section 8(b)(4)(i) and (ii)(B) of
the Act.
In considering the merits of the complaint in Case 20–CC–
3177 and the legality of Respondent’s conceded January
1991 picketing at Koret, I note that, based on the
uncontroverted record evidence,101 Respondent had a primary
749SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
Victor Krasney. The testimony of each was uncontroverted, and each
appeared to be an honest and straightforward witness. However,
while, I believe, each seemed to be testifying honestly as to his
recollection of events, Partida impressed me as having the better
recollection, and I shall rely on his version as to what occurred
where their respective testimony conflicted. Otherwise, each shall be
credited herein.
102 Notwithstanding the contents of a leaflet and statements by
Linda Kahn to Krasney that Respondent’s concern was West Bay’s
status as a ‘‘notorious’’ subcontractor to employers who violate child
labor laws and other California labor code provisions, the record evi-
dence clearly establishes that Respondent was mainly concerned with
West Bay’s nonunion status herein. Thus, Kahn wrote to Koret that
she could not permit union-cleaned buildings to become nonunion
and that she would work with Koret to find a union signatory con-
tractor for its building. That said comment should be viewed as the
true characterization of the dispute between the parties is seen from
the nearly 5-year dispute between Respondent and West Bay and Re-
spondent’s picketing at 1 Ecker and 631 Howard and 55 Hawthorne
over West Bay’s nonunion status. Accordingly, while subcontractors’
labor code violations were important to Respondent, West Bay’s
nonunion status was of paramount importance and was the basis for
the instant labor dispute.
103 Not only did the Koret picketing coerce and restrain Koret but
also it was intended to induce Koret’s employees to engage in a
work stoppage against Koret. Thus, Koret employs 25 individuals,
who are represented by the ILGWU; Richard Leung warned Richard
Partida that Koret would have problems with that labor organization;
Respondent sought and obtained strike sanctions against Koret; and
the Respondent’s picket signs merely read ‘‘On Strike.’’ In these cir-
cumstances, including the location of the picketing at the Koret em-
ployee entrance, the issue is free from doubt that the picketing was
aimed at Koret’s employees.
labor dispute with West Bay based on the latter’s status as
a nonunion building maintenance contractor102 and that, in
furtherance of the dispute, Respondent engaged in the afore-
mentioned picketing at Koret’s building. More specifically,
in accord with the credited testimony, I find that, having ter-
minated its relationship with a union signatory building
maintenance contractor, Koret contracted with West Bay to
provide such services at its office building in San Francisco
effective January 2, 1992; that Koret employs, at its building,
25 individuals, who produce Koret’s sample product line and
who are represented by the ILGWU; that, on December 28,
Linda Kahn informed Victor Krasney that Respondent would
picket at the building and that she could not permit union-
cleaned buildings go nonunion and would work with Koret
to find a union signatory contractor; that, on January 2, Rich-
ard Partida wrote a letter to Respondent in which he stated
that West Bay’s janitors would not be working during the
daytime, would start working each day at 6 p.m., and would
only enter the building through the rear entrance (110
Minna); that Koret sent said letter to Respondent by fac-
simile transmission, and such was received by Respondent;
that, later on January 2, Partida told Richard Leung that
Koret was within its rights to contract with West Bay, and
the latter replied that Respondent would picket at Koret’s
building and Koret would have problems with the ILGWU
‘‘if you don’t reverse your decision’’; that, on January 2, Re-
spondent sought and received strike sanctions against Koret
from the San Francisco Labor Council and picketed at the
front entrance to Koret’s building; that, on January 3, Leung
warned Partida that, if Koret did not cancel its contract with
West Bay and again contract with the union signatory build-
ing maintenance contractor, Respondent would continue pick-
eting ‘‘with as many people as it took to get us to change
our minds; and that, on January 3, Koret instituted a reserved
gate system at its building, reserving the front entrance only
for Koret’s employees and customers and the rear entrance
only for janitorial personnel and deliveries and posting prop-
erly worded signs at each entrance. I further find that, on
January 4, 7, 8, 10, 11, and 14, in the afternoon of each day
and at a time when no janitors employed by West Bay were
working at Koret’s facility, notwithstanding the reserved gate
system in effect at the building, Respondent picketed at the
front entrance to the facility with signs reading ‘‘ON
STRIKE—LOCAL 87, SEIU’’ and ‘‘HUELGA—LOCAL
87’’; and that, on January 7, 8, 10, and 11, during the day-
time when no janitors, employed by West Bay, were working
inside the building, Respondent picketed at the rear entrance
to the Koret facility with signs reading ‘‘ON STRIKE—
LOCAL 87, SEIU.’’
The complaint alleges and counsel for the General Counsel
argues that Respondent’s above-described picketing at the
Koret building was violative of Section 8(b)(4)(i) and (ii)(B)
of the Act and that Respondent’s threat of picketing was vio-
lative of Section 8(b)(4)(ii)(B) of the Act. Initially, there can
be no question that the picketing at both entrances was of
the type traditionally considered as constituting Section
8(b)(4)(i) and (ii) violative conduct. Atchison, Topeka &
Santa Fe Railroad Co., supra; Interox America, supra; J. H.
Hogan, Inc., supra.103 Turning to the object of the picketing,
without regard to any other considerations, including picket-
ing at the neutral entrance, the timing of the picketing, and
the failure to name West Bay on the picket signs—all of
which clearly establish the secondary nature of the picketing,
it is quite apparent that Respondent’s intent was that which
is proscribed by Section 8(b)(4)(B) of the Act. Thus, Linda
Kahn warned Krasney that Respondent could not permit
union-cleaned buildings to go non union and Richard Leung
twice blatantly threatened Richard Partida with picketing un-
less Koret reversed itself by canceling its contract with West
Bay, and entering into a new contract with American Build-
ing Maintenance, the prior janitorial contractor. Clearly, then,
Respondent would only have been satisfied by the cessation
of business between Koret and West Bay, and, therefore, Re-
spondent’s entire picketing of the Koret building was for the
proscribed object and must be found violative of Section
8(b)(4)(i) and (ii)(B) of the Act. Thrust IV, supra at 635;
Electrical Workers Local 441 (Rollins Communications), 208
NLRB 943 (1974). Finally, as to Richard Leung’s above
threat of picketing at Koret’s office facility if Koret did not
reverse its decision to contract with West Bay, and his warn-
ing that, in the event of continued picketing, Koret would
have problems with the ILGWU, the labor organization
which represented Koret’s production employees, the second-
ary nature of the threats is obvious, and Respondent clearly
acted in violation of Section 8(b)(4)(ii)(B) of the Act. Coors
Distributing Co., supra; Huntington Town House, supra.
With regard to the complaint in Case 20–CC–3189, while
there exists no dispute that Respondent engaged in dem-
onstrations in front of the entrance to 260 California on May
16, 17, 20, 22, and 23, 1990, and in front of 230 California
on May 23, there does exist a dispute as to exactly what oc-
curred during the May 23 incident at 260 California. Initially,
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
104 While each impressed me as testifying honestly as to his or her
recollection of the picketing, Barsotti and Carmichael contradicted
each other as to the time of the May 16 demonstration in front of
260 California, with the latter stating that such occurred at approxi-
mately noontime and the former stating that it occurred in the late
afternoon. Given that G.C. Exh. 85(e), a leaflet published by Re-
spondent, scheduled a ‘‘rally’’ for noontime on May 16 at 260 Cali-
fornia, I shall credit Carmichael as to the timing of the demonstra-
tion. Otherwise, the testimony of each was corroborative.
crediting the respective, uncontroverted testimony of Cath-
erine Carmichael and Richard Barsotti,104 I find that IMA
terminated its contract, covering the building maintenance
work at 260 California, with Golden State, a union signatory
contractor, on May 14 and entered into an agreement, effec-
tive on May 17, for said work with Ali Abdulla, on behalf
of Complete, a nonunion entity; that Golden State provided
a daytime janitor for 260 California; that, on May 14, IMA
sent a letter to Respondent, informing it that, effective on
May 17, no day janitor would be present at 260 California;
that, on May 15, Respondent sent a series of documents, in-
cluding a copy of a leaflet, exhorting tenants of 260 Califor-
nia to protest IMA’s decision to use a nonunion janitorial
contractor, and a copy of a letter, requesting strike sanctions
against IMA from the San Francisco Labor Council, to IMA;
that, on May 16, for approximately 2 hours between 11:30
a.m. and 1:30 p.m., a group of 10 to 20 individuals, who car-
ried small, red ‘‘Justice for Janitors—SEIU Local 87’’ flags
and chanted in unison with a person shouting into a bullhorn,
marched in a closed circular formation in front of the en-
trance to 260 California; that, during the demonstration, indi-
viduals distributed leaflets, entitled ‘‘IMA COMMERCIAL
PROPERTIES UNFAIR’’ and which stated that IMA had
taken jobs from janitors by terminating its union contract and
that Respondent was protesting against said ‘‘heartless ac-
tion’’; that, on May 17, 260 California tenants discovered
copies of Respondent’s leaflet, which requested their protests
to IMA concerning its decision to utilize a nonunion jani-
torial contractor, and, at approximately noontime, a group of
from 7 to 10 individuals, waving the small, red ‘‘Justice for
Janitors’’ flags and making noise, commenced marching, in
the same circular formation as on the day before, at the en-
trance to 260 California; and that similar demonstrations,
consisting of between 15 and 20 individuals marching in a
closed circular formation while carrying the small, red flags,
and chanting in unison with a person shouting into a bull-
horn, occurred during the afternoons of March 20 and 22 at
the entrance to 260 California.
As stated above, there is no dispute that, on May 23, a
group of 15 to 20 demonstrators, including Roy Hong and
Robert Daniels, a business agent for Respondent, gathered in
front of the entrance to 260 California, blowing whistles,
waving the red flags, and being extremely loud. As to what
happened next, I credit the respective testimony of Car-
michael and building security guard Zelaya, both of whom
appeared to be testifying frankly and honestly, over that of
Daniels, whose demeanor was that of a mendacious witness.
My impressions in these regards were confirmed by perusal
of the 260 California Street visitors logsheets for May 23,
1991, on which neither signatures of individuals visiting Neil
DeMasters nor those of the individuals mentioned by Daniels
appear, and by the fact that the tactics of the demonstrators,
as described by Carmichael and Zelaya, were identical to
those employed later at 49 Stevenson and at 25 Ecker. Ac-
cordingly, I find that, after milling about outside the front
doors, the 15 to 20 demonstrators ‘‘rushed’’ into the lobby,
blowing on whistles and chanting loudly; that they then
boarded waiting elevators and went up to the eighth floor to
Neil DeMasters’ office; that, after a while, the group left the
building and walked to in front of the foyer entrance of 230
California where they proceeded to march in a circular for-
mation, blowing on whistles, chanting loudly, and waving the
red flags.
The complaint alleges and counsel for the General Counsel
argues that the foregoing constitutes conduct violative of
Section 8(b)(4)(i) and (ii)(B) of the Act. In this regard, what
occurred is similar to that which occurred at the front en-
trance of 55 Hawthorne on November 7, 1990. Thus, on each
of the above dates, a large group of individuals patrolled out-
side the front entrance of 260 California, carrying message-
bearing flags, and, on May 23, a large group patrolled out-
side the entrance to 230 California with the sane flags. While
the demonstrators never carried conventional placards, the
foregoing conduct, occurring at the entrances to the two
buildings, clearly constituted picketing, and I so find. Calcon
Construction, supra; Truax-Traer Coal Co., supra; Stoltze
Land & Lumber Co., supra. Moreover, as with the picketing
at 55 Hawthorne on November 7, given that Respondent
sought strike sanctions against 260 California Street, thereby,
attempting to reach the employees of tenants in the building,
it is patently obvious that the instant picketing was intended
to induce and encourage employees of tenants to strike in
violation of Section 8(b)(4)(i) as well as to coerce and re-
strain the tenants of both 260 California and 230 California
in violation of Section 8(b)(4)(ii) of the Act. Cf. Burns De-
tective Agency, supra. Furthermore, the boisterous invasion of
260 California Street, on May 23, must be viewed in the
context of the totality of Respondent’s conduct as constitut-
ing an additional act of restraint and coercion. Retail Whole-
sale Union District 65 (B. Brown Associates), 157 NLRB
615, 616 fn. 1 (1966).
I have demonstrated above that Respondent’s primary
labor dispute, in each of the consolidated cases, as a matter
of law and fact, was with the nonunion building maintenance
contractor, in the instant matter—Complete. Further, as the
record evidence herein establishes, said primary labor dispute
resulted directly from Complete’s nonunion status. Utilizing
the Moore Dry Dock evidentiary criteria for determining
whether picketing at a common situs was for a proscribed
secondary objective, the inevitable conclusion would appear
to be that Respondent’s picketing at 260 California and at
230 California was unlawfully secondary in nature. Thus, at
no time during the picketing at either location, did Respond-
ent name Complete as the entity with which it was engaged
in a primary labor dispute. Goold Electric, supra, 297 NLRB
1050 (1991); Stay-King Maintenance, supra, 279 NLRB 168
(1986). Moreover, at least 3 days of picketing occurred at
260 California at times, Respondent was aware, when no
janitors were working in the building. McDevitt & Street Co.,
supra; Thrust IV, supra.
Notwithstanding the lack of conformity with three of the
four Moore Dry Dock criteria, Respondent argues that Ali
Abdulla is an employee of IMA rather than an independent
contractor and, in the alternative, that Complete and IMA
constitute joint employers of the janitors at 260 California
751SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
105 Abdulla, of course blatantly contradicted Barsotti as to the ori-
gin of the addendum language. As I do not believe the contradiction
resulted from any language deficiency but rather from his deliberate
attempt to evade the truth and as I did not perceive his demeanor
as being compatible with honesty, I can not accept Abdulla’s asser-
tion that he created the addendum language.
106 I, of course, realize that the cited Board decision deals with a
joint employer relationship; however, as herein, the focus was on the
status of an alleged ‘‘neutral,’’ and I believe the same result must
attain.
and 230 California, and that, accordingly, IMA properly must
be considered a primary disputant in any labor dispute be-
tween Respondent and Complete. At the outset, in this re-
gard, I note that the record evidence on these points consists
only of the building maintenance contract between IMA and
Complete and the testimony of Ali Abdulla and that of Rich-
ard Barsotti and that in considering whether an individual is
an employee or an independent contractor, the Board utilizes
a ‘‘right of control’’ test, pursuant to which ‘‘if the person
for whom the services are performed retains the right to con-
trol the manner and means by which the results are to be ac-
complished, the person who performs the services is an em-
ployee. If only the results are controlled, the person who per-
forms the services is an independent contractor.’’ Fort
Wayne Newspapers, 263 NLRB 854, 855 (1982); Herald
Star, 227 NLRB 505, 507 (1976). Among the factors to be
considered are whether the work is an essential part of the
company’s normal operations; whether there exists a perma-
nent working arrangement; whether the individual does work
in the company’s name with the latter’s assistance and guid-
ance; whether the parties’ working agreement is promulgated
by and changed independently by the company; whether the
individual must account to the company for funds under a
regular reporting procedure; whether the parties’ contract re-
quires certain skills; whether the individual has a proprietary
interest in the work he performs; and whether the individual
has the opportunity to take risks which may result in profit
or loss. Gary Enterprises, 300 NLRB 1111, 1112 (1990);
Standard Oil Co., 230 NLRB 967, 968 (1977). Respondent
asserts that the relationship between IMA and Ali Abdulla
was that of employer-employee and, in support, argues that
Complete would not exist but for the relationship between
IMA and Abdulla, that Complete has no separate physical
existence separate from IMA, that Complete’s janitorial serv-
ices are an integral part of IMA’s leasing responsibilities,
that the agreement between Complete and IMA permits the
former to retain control over the parties’ contract and to uni-
laterally dictate the terms, and that IMA retains a right to
control the manner and means of Complete’s job perform-
ance.
While Ali Abdulla hires and fires the helpers, who assist
him in performing the janitorial work in the IMA managed
commercial office buildings, establishes their wage rates, and
grants them time off, I find merit in Respondent’s contention
that the business relationship between IMA and Abdulla is
akin to that of employer and employee. Thus, Abdulla per-
forms commercial office building janitorial work only for
IMA, and, as IMA’s lease agreements require it to provide
janitor service for the tenants at 260 California, Abdulla’s
work is integral to IMA’s business operations. Next, clearly
militating against a finding of any proprietary interest by
Abdulla in his work, is the fact that, apparently with his as-
sent, IMA retains complete control over the contractual rela-
tionship between itself and Abdulla for 260 California. Thus,
the parties’ contract is an IMA purchase order form and in-
corporates all of the terms of the purchase order, including
the requirement that Abdulla must maintain sufficient and ac-
curate records of all costs incurred as such form the basis for
compensation. Also, the language of the ‘‘contract’’ was en-
tirely drafted by IMA, and not only was Abdulla not present
during the drafting but also he was never even consulted as
to the language. Further, that said agreement was promul-
gated by Respondent for its own benefit and to the detriment
of Abdulla may be seen from the origin of the vacation pro-
vision, by which IMA disclaimed responsibility for paying
for vacations for Abdulla’s employees. In that regard, I credit
Abdulla’s admission that he was unaware of the existence of
such a provision in the contract. Next, and equally as signifi-
cant a factor for my conclusion that an employer-employee
relationship exists between IMA and Abdulla, is the three-
page addendum, to the ‘‘contract,’’ of daily, weekly, monthly
and quarterly job duties, and I specifically credit Barsotti105
that IMA developed the scope of services without any input
from Abdulla. As to the contents of the document, even a
most cursory examination discloses that, not merely setting
forth the schedule for work to be accomplished, the listing
of job tasks includes specific instructions as to the manner
and means by which they should be accomplished. For ex-
ample, dusting must be with a ‘‘treated cloth,’’ fingerprints
and the like must be removed from glass surfaces with ‘‘a
non-abrasive cleaner,’’ bathroom urinals and toilet bowls
must be cleaned with only ‘‘approved germicidal solutions,’’
and ‘‘disinfectant’’ solutions must be used to clean bathroom
toilet seats and floors. In my view, the substantial degree of
control over Abdulla’s work evidenced by the foregoing and
the lack of even a minimum amount of latitude allowed to
Abdulla for the exercise of independent judgment are inimi-
cal to a finding of independent contractor status. Further il-
lustrative of IMA’s degree of control over Abdulla’s work
are the communications from Carmichael, regarding work not
completed to her satisfaction, which, Abdulla admitted, num-
bered in the ‘‘hundreds.’’ Moreover, Abdulla admitted that
IMA has the contractual right to terminate the agreement
with 3 days’ notice if he fails to perform assigned tasks. Fi-
nally, the nature of Abdulla’s overall relationship with IMA,
including his lack of past business skills and obvious com-
municative difficulties, suggests that he does not exercise any
of the normal entrepreneurial functions associated with an
independent contractor, including the taking of risks which
may result in profit or loss. In these circumstances, I find
that IMA has a right to control the manner and means by
which Ali Abdulla performs his tasks; that the business rela-
tionship between IMA and Abdulla, doing business as Com-
plete, is, in effect, an employer-employee relationship; and
that, therefore, IMA must be considered as being a primary
disputant herein. See Teamsters Local 363 (Roslyn Ameri-
cana Corp.), 214 NLRB 868 (1974).106 Accordingly, Re-
spondent’s picketing and other conduct at the IMA managed
buildings, 260 California and 230 California, as advertised in
its leaflets, must be considered as having been in pursuit of
a primary labor dispute with IMA and, therefore, not viola-
tive of Section 8(b)(4)(i) and (ii)(B) of the Act. Based on the
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
107 Testifying on behalf of the General Counsel, regarding the alle-
gations of this complaint, were Martin Zankel, Navaid Choudhary,
John Lathrop, and Meredith Suter. Not only was the testimony of
each uncontroverted but also each appeared to be an honest and
truthful witness and is credited herein.
108 That Trinity is the primary disputant and that Respondent re-
mained concerned with Trinity’s nonunion status is clear from the
record evidence. Thus, the record establishes that the 394 Associates,
which had contracted with a union signatory building maintenance
contractor, contracted with NAMCO, on or about June 15, 1991, to
manage 394 Pacific; that NAMCO in turn, contracted with Trinity
to perform the building maintenance functions; that Roy Hong wrote
to NAMCO, advising the latter it was aware NAMCO was planning
to utilize a nonunion janitorial contractor in that building; that Hong
also wrote to Martin Zankel, advising him that a nonunion janitor
would be working at 394 Pacific Trinity and warning that ‘‘[Re-
spondent] has been campaigning against Trinity throughout down-
town, San Francisco for more than a year, and as a result of
NAMCO’s decision, your building will be the center of our cam-
paign.’’
109 The daytime janitor position had been reinstated at 49 Steven-
son in July 1990, and this continued during the instant acts and con-
duct. Recognizing that there was some conflicting testimony, as I be-
lieve that Meredith Suter was the more reliable witness with regard
to the janitors’ work schedule during June and August 1991, I find
that the hours for the day janitor were from approximately 7 until
10 in the morning and from approximately 2 until 3 in the afternoon.
foregoing and the record as a whole, I shall recommend that
the complaint in Case 20–CC–3189 be dismissed.
Turning to the complaint in Case 20–CC–3190, the
uncontroverted record evidence107 is that, continuing its cam-
paign against Trinity, based on its status as a nonunion build-
ing maintenance contractor,108 Respondent threatened to
picket at 394 Pacific and acted on its threat by picketing at
49 Stevenson. More specifically, I find that, notwithstanding
its warning to make 394 Pacific the center of its continuing
campaign against the nonunion Trinity, approximately 15 to
20 individuals, on behalf of Respondent, gathered at the front
entrance to 49 Stevenson on June 19 at approximately 12:15
p.m.;109 that, carrying small, red banners, bearing the mes-
sage ‘‘Justice for Janitors,’’ and chanting slogans, such as
‘‘Down with NAMCO,’’ in unison with a person shouting
into a bullhorn, Respondent’s supporters commenced march-
ing in a 20 foot wide circle in front of the entrance; that
some of the marchers distributed a handbill, stating that Mar-
tin Zankel and the other owners of 394 Pacific contracted
with NAMCO to manage 394 Pacific, that NAMCO had ter-
minated a union signatory janitorial contractor and had hired
a nonunion one, and that ‘‘We intend to stop this immoral
and unjust attack’’; and that, after several minutes of march-
ing, the demonstrators entered the lobby, continued to chant
loudly and in unison with the man using the bullhorn, and
ignored the building security guard’s demand that they leave
the lobby; and that most of the demonstrators boarded the
building’s freight elevator, and proceeded to go to three
upper floors. I further find that, at all times material herein,
construction remodeling work was being performed on the
exterior walls and lobby at 394 Pacific; that, on June 27, 12
days after Trinity began providing janitorial services at 394
Pacific, Zankel received a letter from Roy Hong with two at-
tachments—one being a letter to the San Francisco Labor
Council requesting strike sanctions so that Respondent would
be enabled to commence picketing at 394 Pacific and the
other a letter advising of the granting of said sanctions; and
that Hong’s letter warned Zankel that, ‘‘in case you don’t
know what [the seeking and granting of strike sanctions] ex-
actly means, you most likely won’t get your building fixed
up on time.’’ Also, I find that, while no picketing ever oc-
curred at 394 Pacific, on August 1 at 4 p.m., approximately
50 demonstrators, concededly at Respondent’s direction, ap-
peared at 49 Stevenson; that, carrying red flags on which
was printed ‘‘Justice for Janitors—Local 87’’ and chanting in
unison with an individual shouting into a bullhorn, the dem-
onstrators, at first, milled about in the entrance area, posi-
tioning their feet and bodies so that the front doors could not
be closed and, later, marched in a circular formation in front
of the entrance area. Finally, I find that, on August 6 at ap-
proximately noontime, a large crowd of approximately 100
people marched toward 49 Stevenson, with many carrying
ordinary picket signs reading ‘‘Strike FDIC, 25 Ecker, Local
87’’; that, as the crowd arrived at the building, at least half
of the pickets left the street, moved inside the building’s ar-
cade area, waving signs and chanting slogans, including
‘‘shut it down, shut it down,’’ and remained in that area for
no more than 3 to 5 minutes before rejoining the group and
marching toward Ecker Street; that, an hour later, the crowd
of 100 pickets again marched toward 49 Stevenson—this
time from the direction of Ecker street; that, again, approxi-
mately half of the pickets, left the street and moved beneath
the arcade area, chanting the same slogans and waving their
signs, and, after a minute or two, rejoined the crowd, and
walked away toward Second Street.
The complaint alleges and counsel for the General Counsel
argues that Respondent’s foregoing threat and conduct were
violative of Section 8(b)(4)(i) and (ii)(B) of the Act. Initially,
as to the threat to alleged threat to picket, there can be no
doubt that the reference, in Hong’s letter, to the building not
being ‘‘fixed’’ on time, in conjunction with the attached let-
ter seeking strike sanctions in order to picket at 394 Pacific,
constituted a direct threat, to Martin Zankel, of picketing at
that building, with the sanctions and picketing designed to
induce or encourage the employees of the construction com-
panies and coerce and restrain the contractors themselves.
Moreover, I believe the secondary objectives of the threat are
obvious—forcing the construction companies to cease doing
business with 394 Associates which, in turn, would force or
require 394 Associates to pressure NAMCO into terminating
its building maintenance contract with Trinity. Accordingly,
the threat to Zankel was clearly violative of Section
8(b)(4)(ii)(B) of the Act. Huntington Town House, supra.
With regard to what occurred on June 19 and August 1
at 49 Stevenson, the conduct of the demonstrators, for which
Respondent conceded responsibility, in front of the entrance
to the building (patrolling, carrying the red flag banners and
chanting slogans), as with the conduct in front of 55 Haw-
thorne on November 7, 1990, and that which occurred in
front of 260 California on May 16 through 23 and in front
of 230 California on May 23, notwithstanding that none of
the demonstrators carried placards, must be considered as
constituting picketing, and I so find. Calcon Construction,
supra; Truax-Traer Coal Co., supra; Stoltze Land & Lumber
Co., supra. Furthermore, the June 19 invasion of the building
by the demonstrators and the confrontational nature of what
occurred inside the lobby, occurring in connection with the
picketing, and the August 1 milling around inside the en-
trance area and the conduct in the doorway must likewise be
753SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
110 Unlike the June 19 and August 1 picketing and other coercive
acts at 49 Stevenson, which, based on my findings and conclusions
for the 1990 picketing there, I do not believe were directed at em-
ployees, I do believe that the August 6 picketing was directed at the
employees of tenants as well as at the tenants themselves. Thus, the
pickets’ slogans, including ‘‘Shut it down, shut it down’’ and their
placards, which contained the false message, ‘‘On Strike,’’ convince
me that their conduct was intended to induce and encourage the em-
ployees of the 49 Stevenson tenants to engage in a work stoppage
or strike, within the meaning of Sec. 8(b)(4)(i) of the Act.
111 Respondent disclaims responsibility for that which occurred on
August 6. However, Respondent admitted responsibility for the pick-
eting at 25 Ecker, which occurred between the incidents at 49 Ste-
venson, and there can be no doubt that the crowd of pickets, from
which those who picketed at 49 Stevenson broke off, was on its way
to 25 Ecker, located a little more than a block away. Respondent’s
assertion is without merit as a labor organization is responsible for
the acts of its authorized pickets ‘‘even if not specifically authorized
or indeed specifically forbidden.’’ Avis Rent-A-Car, supra.
112 The respective testimony of the witnesses, who testified on be-
half of the General Counsel (John Schmidt, Everett Woldridge, Tim-
othy Tanner) was uncontroverted, and each appeared to be honest
and candid while testifying. Accordingly, each shall be credited
herein.
113 Respondent’s defense to its conduct at 25 Ecker is similar to
its defense to the allegations, regarding its conduct at 260 California
and 230 California—that Brighton Pacific and GMG are joint em-
ployers of the janitors at 25 Ecker and, therefore, the former is, in
reality, a primary disputant herein. In this regard, in order to deter-
mine whether separate businesses constitute joint employers, the
Board must decide if the said employers ‘‘share or co-determine
those matters governing the essential terms and conditions of em-
ployment.’’ Whitewood Oriental Maintenance Co., 292 NLRB 1159,
1161 (1989); O. Voorhees Painting Co., 275 NLRB 779, 780 (1985).
In analyzing alleged joint employer cases, evidence of control over
five areas is ‘‘particularly relevant:’’ hiring and firing, discipline,
wages and insurance, supervision, and participation in the collective-
bargaining process. Whitehead Maintenance, supra at 1161 fn. 8.
Herein, Respondent initially argues that Brighton Pacific retains the
right to review the performance of the GMG janitors, and there is
record evidence that, each day, John Schmidt checks the previous
night’s janitorial work. However, the record also establishes that
GMG provides its own supervisor, who directs the work of the jani-
torial crew each night, and that Schmidt does not monitor their
work. Further, while Schmidt has the right to ask a janitor to per-
form a contractually obligated task, such seems to be ‘‘in the nature
of routine directions of what tasks [are] required’’ and not evidence
of direct supervision. Southern California Gas Co., 302 NLRB 456,
461 (1991). Respondent next argues that, while there is no evidence
that Schmidt has any authority over the hiring of janitors, he did
state that he has the right to request that a janitor be replaced and
that Brighton Pacific’s ultimate sanction, if GMG refuses his request,
is not to renew the building maintenance contract. However, Brigh-
ton Pacific’s right, in this regard, merely is that of an owner or occu-
pant protecting his premises and not that of a joint employer. Id.
Hychem Constructors, 169 NLRB 274, 276 (1968). There is no
record evidence establishing any other indicia of control, by Brigh-
ton Pacific, over the janitors’ terms and conditions of employment,
and, therefore, I find no merit to Respondent’s assertion that Brigh-
ton Pacific and GMG constitute joint employers of the janitors so
as to make the former a primary disputant herein. Further, for the
same reasons, I find no merit to the contention that there exits some
intimate relation between them so as to deny Brighton Pacific the
status of a neutral herein.
114 That GMG’s nonunion status was the underlying rationale for
Respondent’s acts and conduct at 25 Ecker seems certain. Thus,
prior to the effective date of the contract with GMG, Roy Hong tele-
phoned Schmidt and said he was aware that Brighton Pacific was
going to replace the union signatory ISS with the nonunion GMG
and, subsequently, Richard Leung asked if something could be done
to retain a union-signatory contractor.
considered coercive conduct within the meaning of Section
8(b)(4)(ii) of the Act. B. Brown Associates, supra. Finally,
notwithstanding that each lasted for only a few minutes, the
demonstrations on August 6, with the individuals involved
carrying placards in front of 49 Stevenson, were nothing less
than episodes of conventional picketing and, of course,
8(b)(4)(i) and (ii) violative conduct. McDevitt & Street Co.,
supra.110 As to whether or not Respondent’s picketing111 and
other coercive misconduct, at 49 Stevenson, was intended for
a proscribed object, the record evidence, including the hand-
bill distributed on June 19, convinces me that what occurred
at that building was, in reality, an blatant aspect of Respond-
ent’s campaign to force 394 Associates and the 49 Stevenson
tenants to pressure NAMCO and to force NAMCO to cease
doing business with Trinity both at 394 Pacific and at 49
Stevenson. That this is true can be seen from the handbill,
which falsely casts responsibility for the picketing on 394
Associates and NAMCO and which never identified Trinity
as the primary disputant. Service Employees Local 77, supra;
Pacific Telephone, supra. Moreover, it is apparent that Re-
spondent never conformed to the Moore Dry Dock evi-
dentiary standards. Thus, the picketing occurred at times
when the day janitor was not scheduled for work at 49 Ste-
venson, and there is no evidence that, during Respondent’s
acts, the janitor was in the building, performing his normal
job duties, and Respondent never identified Trinity as the
primary disputant. Goold Electric, supra, 297 NLRB 1050
(1991); Ready Mixed Concrete, 200 NLRB 253 (1972). Ac-
cordingly, I find that, by its acts and conduct on June 19 and
August 1, Respondent engaged in violations of Section
8(b)(4(ii)(B) of the Act and, by its picketing on August 6,
engaged in acts and conduct violative of Section 8(b)(4)(i)
and (ii)(B) of the Act.
Finally, with regard to the complaint in Case 20–CC–
3196, the uncontroverted record evidence112 is that, based on
a primary labor dispute with GMG,113 based on its status as
a nonunion building maintenance contractor,114 as the cul-
mination of its campaign against nonunion building mainte-
nance contractors and the commercial office building owners
and managers who utilized their services, Respondent en-
gaged in acts and conduct, for which it conceded responsibil-
ity, at 25 Ecker. More specifically, I find that, on behalf of
the owners association, Brighton Pacific terminated its jani-
torial services contract with union signatory ISS and entered
into a contract with nonunion GMG to become effective on
August 1, 1990; that the GMG janitors were scheduled for
work at 25 Ecker from 7 p.m. until 4 am each day; that, on
July 30, at approximately 3 p.m., a demonstration occurred
in the plaza, in front of the building, with a crowd of, at
least, 50 people marching in a circular formation, carrying
the small, red cloth ‘‘Justice for Janitors—Local 87’’ banners
and loudly chanting slogans in unison with a man shouting
into a bullhorn; that, after the man, with the bullhorn, shout-
ed that they should enter the building, the crowd surged to-
ward the front doors, with one of the demonstrators charging
into an FDIC employee, Everett Woldridge, and pressing him
against one of the glass doors and another demonstrator
splashing him with a red liquid; and that approximately 35
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
115 The record warrants the inference, from the timing and manner
of the demonstration, that the demonstrators were the same ones who
appeared at 49 Stevenson that day. Obviously, they stopped at the
latter location to and from 49 Stevenson—a sort of ‘‘double header’’
demonstration.
116 Inasmuch as no building employees are represented by any
labor organization and as no strike sanctions were sought, I do not
believe that the picketing on July 30 through August 1 was directed
at employees so as to constitute 8(b)(4)(i) violative conduct. My
conclusion is not affected by the obvious assault on FDIC employee
Woldridge. Thus, there is no evidence to suggest that any of the
demonstrators knew he was a worker in the building; rather, it ap-
pears as if he was an innocent victim of Respondent’s coercive con-
duct that day.
117 As with the picketing at 49 Stevenson the same day, I believe
the picketing, at 25 Ecker, constituted (i) violative conduct, as well.
Thus, the picket signs read ‘‘On Strike’’ and the pickets chanted,
‘‘We’ll shut it down,’’ and I agree with counsel for the General
Counsel’s argument that such constitute efforts to induce or encour-
age employees to engage in a work stoppage.
of the demonstrators entered the building lobby, waving their
red banners and making a great deal of noise. I further find
that, on July 31 at 3:30 p.m., another demonstration occurred
inside the plaza area at 25 Ecker, with 40 to 50 people, who
were bunched closely and carried the red ‘‘Justice for Jani-
tors—Local 87’’ banners, marching in a circular formation;
that, after a while, the crowd massed in front of the glass
entry doors, effectively blocking ingress to and egress from
the building; and that, after 10 minutes, the crowd resumed
its marching inside the plaza. Also, I find that, on August
1, from 3:30 until 5:30 p.m., a similar demonstration oc-
curred in the plaza area; that Roy Hong would periodically
countdown to when the crowd should enter the building; and
that, after one such countdown, approximately 20 demonstra-
tors did rush into the building, marching and chanting inside
the lobby. I find that, on August 6, 4 days after Brighton Pa-
cific had hand-delivered, to it, a letter, setting forth the hours
that the GMG janitors worked at the building, Respondent’s
final, and most massive demonstration, at 25 Ecker, occurred
shortly before noontime;115 that an estimated 250 people,
with some carrying the red cloth ‘‘Justice for Janitors—Local
87’’ banners and others carrying standard picket signs read-
ing ‘‘FDIC, 25 Ecker, On Strike, Local 87,’’ bunched tightly
together and side-by-side, marched in the same circular path
as on the previous days; that, after marching for half an hour,
the entire crowd massed in front of the glass atrium, pressing
up against the glass, along the entire front of the building,
loudly shouted slogans, such as ‘‘We’ll shut it down,’’ and
blocked ingress and egress; that, after a few minutes, the
crowd moved away from the atrium walls and resumed
marching inside the plaza.
The complaint alleges, and counsel for the General Coun-
sel argues, that the aforementioned acts and conduct were
violative of Section 8(b)(4)(i) and (ii)(B) of the Act. I have
previously concluded that, notwithstanding the absence of
conventional picket signs, the massed patrolling at the front
entrances to the various commercial office buildings herein
constituted picketing, and, accordingly, I conclude that, by
having large numbers of people march inside the 25 Ecker
plaza in front of the entrance doors on July 30 through Au-
gust 1, Respondent engaged in picketing on those days.
Calcon Construction, supra; Truax-Traer Coal Co., supra,
177 NLRB 213 (1969); Stoltze Land & Lumber Co., supra,
156 NLRB 388. Furthermore, the trespassory entries into the
building on July 30 and August 1, accompanied by the
marching and shouting, and the massed blocking of ingress
and egress on July 31, occurring in conjunction with the
picketing those days, were equally and obviously likewise
coercive and violative of Section 8(b)(4)(ii) of the Act. B.
Brown Associates, supra.116 As to the massive August 6
demonstration, and as to the July 31 demonstration, it is clear
that mass picketing and the blocking of ingress to and egress
from a building constitute coercive conduct, violative of the
Act. Carpenters District Council of Philadelphia (Reeves,
Inc.), 281 NLRB 493 fn. 3 (1986). Moreover, what occurred
that day is remarkably similar to that which occurred in
C.D.G., Inc., supra, 305 NLRB 298 (1991). Therein, for ap-
proximately 30 minutes, between 300 and 400 members of
a labor organization, which sought to force a company to
cease doing business with another unless the latter used its
members at area standard wages, encircled a building, carry-
ing picket signs, marching, and blocking all entrances. The
Board concluded that such conduct constituted restraint and
coercion within the meaning of Section 8(b)(4)(ii) of the Act.
Id. at 298. In the instant circumstances, given the massive
size of the demonstration and the picketing, the convergence
of the crowd in front of the atrium walls and blockage of
the entrance doors, and the placards, the same result attain
herein, and I so conclude.117 With regard to evidence of the
8(b)(4)(B) proscribed cease doing business object, it is clear
that, by failing to identify GMG as the primary disputant
during its demonstrations on July 30 through August 1, Re-
spondent failed to conform an aspect of the Moore Dry Dock
evidentiary criteria. Goold Electric, supra. As stated above,
the failure to act in conformity with just one of the criteria
is sufficient to establish a rebuttable presumption of a sec-
ondary objective for picketing. In these circumstances, that
such a conclusion is correct may be seen from consideration
of Respondent’s August 6 picketing. Thus, notwithstanding
being placed on notice that no GMG janitors would be work-
ing during the daytime hours, Respondent’s picketing oc-
curred at approximately noontime, thereby violating two
other Moore Dry Dock tenets. McDevitt & Street Co., supra;
Thrust IV, supra, 264 NLRB 628. Moreover, not only did the
picket signs fail to identify GMG as the primary disputant,
they did name the FDIC, thereby misleading tenants, their
employees, and the public as to the nature of the dispute.
Service Employees Local 77, supra. Accordingly, based on
the record as a whole, as Respondent’s obvious aim was
forcing the 25 Ecker tenants to pressure Brighton Pacific and
forcing Brighton Pacific to cease doing business with GMG,
I find that, on July 30 and 31 and August 1, Respondent’s
picketing and other acts at 25 Ecker were violative of Sec-
tion 8(b)(4)(ii)(B) of the Act and that, on August 6, its pick-
eting at 25 Ecker was violative of Section 8(b)(4)(i) and
(ii)(B) of the Act.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
2. 49 Stevenson Corporation and NAMCO are employers
engaged in commerce or in an industry affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
755SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
3. West Bay is a person and an employer engaged in com-
merce or in an industry affecting commerce within the mean-
ing of Section 2(1), (2), (6), and (7) of the Act.
4. Sakti International is an employer engaged in commerce
or in an industry affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
5. 230 California Associates in an employer engaged in
commerce or in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
6. 394 Associates is a person and an employer engaged in
commerce or in an industry affecting commerce within the
meaning of Section 2(1), (2), (6), and (7) of the Act.
7. The FDIC is a person and an employer engaged in com-
merce or in an industry affecting commerce within the mean-
ing of Section 2(1), (2), (6), and (7) of the Act.
8. (a) NAMCO, Constructa U.S., Data Vision, Combs and
Greenley, Yank Sing Restaurant, the other 49 Stevenson ten-
ants, and Trinity are persons engaged in commerce or in an
industry affecting commerce within the meaning of Section
2(1), (6), and (7) and Section 8(b)(4)(ii)(B) of the Act.
(b) By picketing, several days each week during the first
3 weeks of June, 1990, at 49 Stevenson, without identifying
Trinity as the primary disputant, at times when no janitors
employed by Trinity or by its subcontractor were working in-
side the building, and when falsely casting responsibility for
its conduct on NAMCO, Respondent engaged in conduct vio-
lative of Section 8(b)(4(ii)(B) of the Act.
9. (a) The Copy Shop, Grafika, Golden Gate University
Book Store, Gallelli Real Estate, San Francisco Education
Fund, the Coro Foundation, the California Appellant Project,
and the other 1 Ecker tenants are persons engaged in com-
merce or in an industry affecting commerce within the mean-
ing of Section 2(1), (6), and (7) and Section 8(b)(4)(ii)(B) of
the Act.
(b) By picketing, on June 14, 1990, at 1 Ecker, without
identifying West Bay as the primary disputant and at a time
when no janitors employed by West Bay or by its sub-
contractor were working inside the building, Respondent en-
gaged in conduct violative of Section 8(b)(4)(ii)(B) of the
Act.
(c) By its confrontational and coercive acts, akin to picket-
ing, on July 9, 1990, at 1 Ecker, without identifying the pri-
mary disputant and at a time when no janitors employed by
West Bay or by its subcontractor were working inside the
building, Respondent engaged in conduct violative of Section
8(b)(4)(ii)(B) of the Act.
10. (a) JMA, PC Computer Rental, the American Diabetes
Society, the Leukemia Society, the Bank of America, The
Copy Station, the Tan Cafe, and the other 55 Hawthorne and
631 Howard tenants are persons engaged in commerce or in
an industry affecting commerce within the meaning of Sec-
tion 2(1), (6), and (7) and Section 8(B)(4)(i) and (ii)(B) of
the Act.
(b) By picketing, on August 3, 1990, at 631 Howard and
55 Hawthorne, at a time when no janitors employed by West
Bay or by its subcontractor were working inside the build-
ings and when falsely casting responsibility for its conduct
on JMA, Respondent engaged in conduct violative of Section
8(b)(4)(i) and (ii)(B) of the Act.
(c) On August 24, 1990, by threatening to picket at all en-
trances to 55 Hawthorne and 631 Howard, notwithstanding
knowledge of the existence of a reserved gate system, and
at a time when no janitors employed by West Bay or by its
subcontractor would by working inside the building, despite
knowledge of the janitors’ hours of work, Respondent en-
gaged in conduct violative of Section 8(b)(4)(ii)(B) of the
Act.
(d) By picketing, on November 7, 1990, at 55 Hawthorne,
at a time when no janitors employed by West Bay or by its
subcontractor were working inside the building, without iden-
tifying West Bay as the primary disputant, and when falsely
casting responsibility for its conduct on JMA, Respondent
engaged in conduct violative of Section 8(b)(4)(i) and (ii)(B)
of the Act.
11. (a) Koret is a person engaged in commerce or in an
industry affecting commerce within the meaning of Section
2(1), (6), and (7) and Section 8(b)(4)(i) and (ii)(B) of the
Act.
(b) By picketing, on January 4, 7, 8, 10, and 14, 1991, at
all entrances to the Koret building, Respondent engaged in
conduct violative of Section 8(b)(4)(i) and (ii)(B) of the Act.
(c) On January 2 and 3, 1991, by threatening to picket at
the Koret building unless Koret reversed its decision regard-
ing contracting with West Bay and stating that such picket-
ing would result in problems with the labor organization rep-
resenting Koret’s production personnel, Respondent engaged
in conduct violative of Section 8(b)(4)(ii)(B) of the Act.
12. On June 27, 1991, by threatening to picket at 394 Pa-
cific, in conjunction with the seeking of strike sanctions and
a warning that construction work on the building would be
delayed, Respondent engaged in conduct violative of Section
8(b)(4)(ii)(B) of the Act.
13. (a) Kvaerner Hydropower, McCord Co., DataVision,
Travel Age West Magazine, and the other 49 Stevenson ten-
ants are persons engaged in commerce or in an industry af-
fecting commerce within the meaning of Section 2(1), (6),
and (7) and Section 8(b)(4)(i) and (ii)(B) of the Act.
(b) By picketing, on June 19 and August 1, 1991, at 49
Stevenson, at times when no janitors employed by Trinity or
by its subcontractor were working inside the building, with-
out identifying Trinity as the primary disputant, and when
falsely casting responsibility for its conduct on NAMCO and
394 Associates, Respondent engaged in conduct violative of
Section 8(b)(4)(ii)(B) of the Act.
(c) By picketing, on August 6, 1991, at 49 Stevenson, at
times when no janitors employed by Trinity or by its sub-
contractor were scheduled to work inside the building, with-
out identifying Trinity as the primary disputant, when falsely
casting responsibility for its conduct on NAMCO, 394 Asso-
ciates, and FDIC, and with picket signs bearing the message
‘‘On Strike,’’ Respondent engaged in conduct violative of
Section 8(b)(4)(i) and (ii)(B) of the Act.
14. (a) Brighton Pacific and GMG are persons engaged in
commerce or in an industry affecting commerce within the
meaning of Section 2(1), (6), and (7) and Section 8(b)(4)(i)
and (ii)(B) of the Act.
(b) By picketing, on July 30 and 31 and August 1, 1991,
at 25 Ecker, without identifying GMG as the primary dispu-
tant, Respondent engaged in conduct, violative of Section
8(b)(4)(ii)(B) of the Act.
(c) By picketing, on August 6, at 25 Ecker, at times when
no janitors employed by GMG were working inside the
building, without identifying GMG as the primary disputant,
when falsely accusing FDIC as being the primary disputant,
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
118 I have not included Respondent’s acts and conduct at 230 Cali-
fornia and 260 California at which Respondent was saved from act-
ing unlawfully by the relationship between IMA and Complete, a
matter about which Respondent was ignorant until the trial herein.
119 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.
and with picket signs carrying the misleading legend ‘‘On
Strike,’’ Respondent engaged in conduct, violative of Section
8(b)(4)(i) and (ii)(B) of the Act.
15. The aforementioned unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
16. Unless specifically found, Respondent engaged in no
other unfair labor practices.
REMEDY
Having found that Respondent engaged in a series of acts
and conduct, violative of Section 8(b)(4)(i) and (ii)(B) of the
Act, I shall recommend that it be ordered to cease and desist
therefrom and that it take such affirmative action as will ef-
fectuate the purposes and policies of the Act. In this regard,
counsel for the General Counsel seeks a broad order, enjoin-
ing Respondent from engaging in future secondary activity
proscribed by Section 8(b)(4)(B) of the Act, as the appro-
priate remedy herein. I agree. At the outset, it is well settled
Board law that a broadly worded cease-and-desist order is
warranted only if a respondent is demonstrated to have a
‘‘proclivity’’ to violate the Act or if a respondent has en-
gaged in ‘‘such egregious or widespread misconduct so as to
demonstrate a general disregard for . . . fundamental statu-
tory rights.’’ Iron Workers Local 378 (N.E. Carlson Con-
struction), 302 NLRB 200 (1991); Hickmott Foods, 242
NLRB 1357 (1979). Utilizing the initial standard, I note that
Respondent’s ‘‘Justice for Janitors’’ campaign against non-
union janitors and the building owners or managers who con-
tract with them commenced in June 1990—less than 2 years
after the Board issued its prior West Bay, supra, decision, a
case involving similar secondary picketing based on West
Bay’s nonunion status, and 4 years after the Board’s Stay-
King, supra, and Pacific Telephone, supra, decisions, both of
which involved secondary picketing. As pointed out by coun-
sel for the General Counsel, unlike the situation herein, the
Board has denied broad relief in secondary picketing cases
in which there has been no evidence of ‘‘previous similar
violations.’’ Atchison, Topeka & Santa Fe Railway Co.,
supra at 616 fn. 3. With regard to the second facet of the
Board’s test, the record establishes that Respondent’s ‘‘Jus-
tice for Janitors’’ campaign continued for slightly longer than
15 months during which time Respondent engaged in
confrontational, coercive, and disruptive tactics to achieve its
secondary aims at no less than seven commercial office
buildings in downtown San Francisco.118 Moreover, Re-
spondent has ignored the building owners’ and managers’ ef-
forts to limit, or eliminate, the effect of its picketing and
other conduct. In my view, such indicates not only a blatant
and egregious disregard for the secondary boycott provisions
of the Act but also, as Respondent’s goal, clearly, is to attack
nonunion janitorial contractors anywhere in San Francisco,
the distinct possibility that Respondent will continue its cam-
paign and involve other neutral building owners or managers
unless an order of the Board contains some future injunctive
relief. Thrust IV, supra at 629. Accordingly, as I believe that,
without proper restraint, Respondent is likely to continue to
engage in similar secondary activity as herein involved, a
broad remedial order is necessary.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended119
ORDER
The Respondent, Service Employees Union, Local 87,
Service Employees International Union, AFL–CIO, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Picketing or any similar or related conduct or in any
other manner inducing or encouraging any individual em-
ployed by JMA Properties Ltd., the tenants of 55 Hawthorne
and 631 Howard, Koret of California, Inc., Northwest Asset
Management Co., Kvaerner Hydro Power, Inc., the tenants of
49 Stevenson, Brighton Pacific Asset Management Co., the
FDIC, the tenants of 25 Ecker, or any other person engaged
in commerce or in an industry affecting commerce, to engage
in a strike or a refusal in the course of his or her employ-
ment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials or commod-
ities, or to perform any services where objects thereof are to
force or require JMA Properties Ltd., Koret of California,
Inc., Northwest Asset Management Co., Brighton Pacific
Asset Management Co., or any other person to cease doing
business with West Bay Building Maintenance, Trinity
Building Maintenance, GMG Janitorial Maintenance, any
other person; or to force or require any person to pressure
or to cease doing business with JMA Properties, Ltd., Koret
of California, Inc., Northwest Asset Management Co., Brigh-
ton Pacific Asset Management Co., or an other person in
order to force or require said latter persons or any other per-
sons, in turn, to cease doing business with West Bay Build-
ing Maintenance, Trinity Building Maintenance, GMG Jani-
torial Maintenance, or any other person.
(b) Picketing or any similar or related conduct, threatening
to picket, or by any other means threaten, coerce, or restrain
Northwest Asset Management Co., the tenants at 49 Steven-
son, Gallelli Real Estate, the tenants at 1 Ecker, JMA Prop-
erties, Ltd., the tenants at 55 Hawthorne; Koret of California,
Inc., 394 Associates, Brighton Pacific Asset Management
Co., the tenants at 25 Ecker, or any other person engaged in
commerce or in an industry affecting commerce where ob-
jects thereof are to force or require Northwest Asset Manage-
ment Co., Gallelli Real Estate, JMA Properties Ltd., Koret
of California, Inc., 394 Associates, Brighton Pacific Asset
Management Co., or any other person to cease doing busi-
ness with Trinity Building Maintenance, West Bay Building
Maintenance, GMG Janitorial Maintenance, or any other per-
son or to force or require any person to person to pressure
or cease doing business with Northwest Asset Management
Co., Gallelli Real Estate, JMA Properties Ltd., Koret of Cali-
fornia, Inc., 394 Associates, Brighton Pacific Asset Manage-
ment Co., or any other person in order to force or require
said latter persons or any other persons to cease doing busi-
ness with Trinity Building Maintenance, West Bay Building
757SERVICE EMPLOYEES LOCAL 87 (TRINITY MAINTENANCE)
120 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.’’
Maintenance, GMG Janitorial Maintenance, or any other per-
son.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its business office and all meeting halls located
in San Francisco, California, copies of the attached notice
marked ‘‘Appendix.’’120 Copies of said notice, on forms pro-
vided by the Regional Director for Region 20, after being
signed by Respondent’s authorized representative, shall be
posted by it immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that the
notices are not altered, defaced, or covered by any other ma-
terial.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaints in Cases 20–
CC–3162 and 20–CC–3164 be dismissed insofar as they al-
lege violations of Section 8(b)4)(i)(B) of the Act and that the
complaint in Case 20–CC–3189 be, and the same hereby is,
dismissed in its entirety.