Service Employees Union Local 77, Service Employees International Union, AFL-CIO (Thrust IV)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Service Employees Union Local 77, Service Employ- ees International Union, AFL-CIO and Thrust IV. Case 32-CC-523 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On March 18, 1982, Administrative Law Judge Joan Wieder issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order, as modified herein. 2 The General Counsel and the Charging Party contend, contrary to the Administrative Law Judge's finding, that Respondent's blatant viola- tions of Section 8(b)(4)(i) and (ii)(B) of the Act demonstrate a clear proclivity to violate the Act, and as such warrant a broad remedial order. The Administrative Law Judge recommended a narrow order, because of the short duration of the unlaw- ful activity and the adequacy of the standard order. The Administrative Law Judge also noted that a prior unexcepted-to Administrative Law Judge's Decision, adopted pro forma by the Board, which found the same Respondent to have committed similar 8(b)(4) violations at a different jobsite, could not properly be used to support a finding of Respondent's proclivity to violate the Act, citing, inter alia, Tri-State Building and Construction Trades Council, AFL-CIO (Structures, Inc.), 257 NLRB 295 (1981). The General Counsel excepted to this finding, arguing that Tri-State should be overruled since prior violations are an obvious indication of Respondent's recidivism and must be considered in the determination of an appropriate remedy.3 For t We disavow reliance on any statements in the Administrative Law Judge's Decision, sec. IV, pars. 9 and 10, which could be interpreted as meaning that, had Respondent been picketing with a purpose to protest Tiffany's failure to pay area standard wages and benefits, that purpose would shield Respondent from a finding that it violated the Act even if it also had an unlawful secondary object. s We hereby deny the Charging Party's request for a make-whole remedy as it is lacking in merit. 3 Member Hunter finds it unnecessary to pass on the issue involving whether or not such previous violations should be used as evidence of Respondent's proclivity to violate the Act. Member Hunter notes that the 264 NLRB No. 82 the reasons set forth below, we conclude that a broad order is warranted here. We do agree with the General Counsel and the Charging Party that Respondent's conduct in this case alone, including several occasions when Re- spondent's representative admitted his intent to vio- late the Act, leaves no question of the appropriate- ness of a broad order. Thus, at a meeting on July 20, 1980,4 with the Charging Party's president and other company officials, after a day of intentional secondary picketing, Respondent's representative, Garcia, explained why Respondent was ignoring the reserve gate system set up by Charging Party Thrust IV and picketing at times when it had knowledge that no Tiffany employees were present. Garcia stated that Tiffany was "an outlaw company," that did not pay minimum wage or pro- vide employee benefits, and that it hired illegal aliens whom it intimidated by threatening to call the Immigration and Naturalization Service. When Bickle expressed concern that one of his subcon- tractors was using such tactics, Garcia offered to suspend picketing if Thrust would agree only to accept bids from union contractors when Tiffany's contract expired. Bickle replied that Thrust would not make such a promise and Garcia said that the only way to organize employees of "outlaw com- panies" such as Tiffany was to organize entire job- sites. In another conversation between Bickle and Garcia, when Bickle pointed out that, if Thrust ac- quiesced to the Union's demands it would hurt Tif- fany's employees by causing their discharge, Garcia replied that "there were always casualties of war," and that it was necessary to the achieve- ment of .the goal of organizing the industry by or- ganizing jobsites. On July 22, Respondent resumed picketing at the secondary gate between 7 and 7:30 a.m. even though it had knowledge that no Tiffany employ- ees would report to work until 5:30 p.m. When Bickle reminded Garcia of this, and mentioned that the Tiffany gate was elsewhere, Garcia replied, "So what?" and stated that they "were picketing the jobsite and not the gate." The picketing stopped that afternoon around 2 p.m., 3-1/2 hours before any Tiffany employee was scheduled to work. violations found herein independently show such proclivity, thus war- ranting the issuance of a broad cease-and-desist order. Chairman Van de Water agrees with the General Counsel's contention that prior violations are an obvious indication of Respondent's recidivism or proclivity tc violate the Act and should be considered in determining whether a broad or narrow order should be granted Accordingly, to the extent Tri-State Building holds otherwise, he would overrule that Deci- sion. 4 All dates are in 1980 unless otherwise indicated. 628 SERVICE EMPLOYEES UNION LOCAL 77 Based on the foregoing, we find that Respond- ent's violations exhibited a blatant disregard of the Act and a clear willingness, if not eagerness, to violate it. Respondent's demands that Thrust hire only union subcontractors also indicate a high probability of recidivism directed against other unionized contractors in the area who engage non- union subcontractors to perform janitorial services. As we found in United Brotherhood of Carpenters and Joiners of America, Local 690 (R. L. (Bob) Moore Construction Co.), 190 NLRB 609 (1971), the danger of recurrence of the unlawful activity ex- tends beyond the parties here and will likely enmesh secondary employers other than the Charg- ing Party and primaries other than Tiffany. Fur- thermore, Respondent's admitted goal of organiz- ing jobsites through unlawful secondary activity is an expression of policy that threatens any second- ary employer who stands in the way of Respond- ent's attempt to organize the industry. Teamsters, Chauffeurs, Warehousemen and Helpers, Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Victory Transportation Service, Inc.), 180 NLRB 709 (1970). The scope of these directives and the means chosen to enforce them lead us to conclude that without proper restraints Respondent will engage in similar misconduct in the future, and for these reasons we find it necessary to issue a broad remedial order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Service Employees Union Local 77, Service Em- ployees International Union, AFL-CIO, San Jose, California, its officers, agents, and representatives, shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph l(a): "(a) Engaging in or inducing or encouraging any individual employed by any person engaged in commerce, or in an industry affecting commerce, to engage in a strike or refusal in the course of his employment, to use, manufacture, process, trans- port, or otherwise handle or work on any articles, materials, or commodities, or to refuse to perform any other services where an object thereof is to force or require that person to cease using, han- dling, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with Tiffany Maintenance Service, Inc., or any other person." 2. Substitute the following for paragraph l(b): "(b) Threatening, coercing, or restraining any person engaged in commerce, or in an industry af- fecting commerce, where an object thereof is to force or to require that person to cease doing busi- ness with Tiffany Maintenance Service, Inc., or any other person." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage any indi- vidual employed by any person engaged in commerce or in an industry affecting com- merce to engage in a strike or refusal in the course of his employment, to use, manufacture, process, transport, or otherwise handle or work on any articles, materials, or commod- ities, or to refuse to perform any other serv- ices, where an object thereof is to force or re- quire that person to cease using, handling, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with Tiffany Maintenance Service, Inc., or any other person. WE WILL NOT threaten, coerce, or restrain any person employed in commerce, or in an industry affecting commerce, where an object thereof is to force or require that person to cease doing business with Tiffany Maintenance Service, Inc., or any other person. SERVICE EMPLOYEES UNION LOCAL 77, SERVICE EMPLOYEES INTERNA- TIONAL UNION, AFL-CIO DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge: This case was heard before me at Palo Alto, California, on No- vember 17, 1981,1 pursuant to a complaint issued by the Acting Regional Director for the National Labor Rela- tions Board for Region 32, on July 31, as amended at the hearing 2 and which is based on a charge filed by Thrust All dates herein refer to 1981, unless otherwise indicated. s The answer to the complaint was also amended at the heanng. Re- spondent objected to an amendment proposed by counsel for the General Counsel for a broad order, asserting surprise and denial of due process. The bases for these assertions were not fully, clearly. or convincingly ex- plicated on the record but Respondent was afforded the opportunity to show the asserted impairment to the presentation of its case throughout the hearing and on brief; Respondent has failed to do so and the onginal ruling permitting the amendments is hereby affirmed 629 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV (herein called the Company) on July 22, 1981. The complaint alleges that Service Employees Union Local 77, Service Employees International Union, AFL-CIO (herein called Respondent or the Union), has engaged in certain violations of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended (herein called the Act).3 All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were timely filed on behalf of the General Counsel, the Charging Party, and Respondent. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE EMPLOYER'S BUSINESS Respondent admits that Thrust IV is a California cor- poration engaged in business as a general contractor in the building and construction industry and having an office and place of business located in Mountain View, California. It further admits that during the past year, in the course and conduct of its business, the Employer has purchased and received goods and materials valued in excess of $50,000 from suppliers located outside the State of California. Tiffany Maintenance Service, Inc. (hereinafter called Tiffany), a California corporation, is an employer en- gaged in providing janitorial services. Accordingly, Respondent admits, and I find, that Thrust IV and Tiffany are engaged in commerce and in businesses affecting commerce within the meaning of Section 2(2), (6), (7),4 and Section 8(b)(4) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that it is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Thrust IV is in the business of buying land, developing projects, building, and then operating them after con- struction. The Company's majority stockholder and president is Hugh Bikle. Approximately 2 years prior to the hearing herein, Thrust IV commenced construction of the Landmark project which is a multibuilding com- plex of offices. Construction has been continuous and six of the office buildings have been completed and are oc- s The Charging Party's motion to correct the transcript of hearing is granted. The errors noted in the motion are just a small portion of the total errors contained in the transcript. However, the errors are not of sufficient import to warrant an extensive recitation thereof in this Deci- sion. 4 See International Brotherhood of Electrical Workers, AFL-CIO. Local Union No. 257 (Glenn L. Whitman and Robert R. Jolley. d/b/a Osage Neon Plastics), 176 NLRB 424, 425 (1969). cupied. 5 The completed and occupied buildings were managed by Chris Taylor, a project manager whose duties include overseeing the leasing, management, and maintenance of the occupied buildings. Raymond Shields is the project superintendent of the Landmark project and is in charge of the construction of the project. In July 1981 the Company employed approximately 44 to 50 carpenters, laborers, painters, tapers, and sheetrock finishers. It is uncontroverted that the Company had col- lective-bargaining agreements covering all of these em- ployees. Also the Company utilizes subcontractors whose employees are union members in the following trades: electricians, plumbers, sheetrock workers, carpet layers, and landscapers. The workday for the main construction crew begins at or about 7:30 a.m. and ends between 3:30 and 4:30 p.m. One employee starts at 7 a.m. and some employees work as late as 5 p.m. Maintenance work on the unfinished portions of the project was handled by the Company's laborers. On the completed buildings, Thrust IV used a subcontractor for janitorial work, Tiffany Maintenance Service, which does not have a contract with Respondent. Prior to July 21 most of the mainte- nance work was performed during the evening by a crew of about four Tiffany employees who commenced work at 5:30 to 6 p.m. and finished at or about 2 a.m., depending on the amount of work to be done nightly. Approximately 2 months or more prior to July, Tiffany, pursuant to a request from Thrust IV, started supplying a day janitor who cleaned the restrooms and buildings during the day. The day janitor started work at or about 10 a.m. and finished at or about 6:30 p.m. B. The Events of July 17 On July 17, Chris Taylor received a telephone call from Mike Garcia, who is employed by Respondent as an organizer. According to Taylor: Mike Garcia called me and asked me who was doing the maintenance on the project. I said that Tiffany was and that he said I might be in for a sur- prise on Monday. At that point I asked him who was calling and that's when he identified himself, and I said, you know, "What, what sort of a strike are [you] talking about?" and he said that I might expect some pickets out there Monday morning. Garcia admitted calling Taylor, "verifying whether, for security's sake, to make sure that Tiffany was in fact the building contractor in there.... She may have asked me why, why was I asking her this and I believe I told her that we were considering, or something like that." Based on demeanor, demonstrated superior clarity of recollection, candor, and inherent probabilities, in addi- tion to the corroborative nature of Garcia's testimony, Taylor's version of this conversation is found to be the most credible. It is noted that Garcia's admission that the reason for the phone call was to verify that Tiffany was 5 Also at the time of the hearing one building was completed but was unoccupied, five buildings were under construction, and two buildings were not yet under construction 630 SERVICE EMPLOYEES UNION LOCAL 77 the janitorial subcontractor at Landmark indicates that Garcia did not definitely know the identity of the janito- rial service at Landmark on July 17. Garcia asserts that he visited the Landmark project prior to July 20 and talked to an employee of Tiffany but could not identify the individual nor would he detail with credible accura- cy what the individual said regarding the wages and other benefits he received from Tiffany to indicate that they were less than that paid to employees by firms who had contracts with Respondent, and Garcia failed to ex- plain the need to call Thrust IV to verify that Tiffany was the janitorial subcontractor if he had in fact learned from Tiffany employees the wages and benefits they re- ceived while working at the Landmark project. Based on the above-stated factors, including inherent probabilities, the lack of detail in Garcia's testimony, Garcia's refusal to interview Tiffany employees at Landmark during a meeting, and subsequent events discussed below, Garcia's representation that he determined the wages and benefits Tiffany employees were paid while working at Land- mark prior to July 20 is not credited. C. The Events of July 20 On July 20, at approximately 8:15 a.m., pickets were observed at the main entrance to the Landmark projects carrying picket signs bearing the following legends: TIFFANY Fails to Pay Wages and Benefits Established by S.E.I.U. Local 77 AFL-CIO no disputes with any other employer TIFFANY UNFAIR Fails to Pay WAGES AND BENEFITS Established by S.E.I.U. Local 77 AFL-CIO no dispute with any other employer Ray Shields was not sure whether the day janitor had commenced work when the pickets arrived, but Castan- eda, a principal in Tiffany's and its operations manager, claims the employee did not start work until 10 a.m. The picketing started after the construction workers com- menced work and there was no disruption of construc- tion on July 20. According to the job diary, Thrust IV had approximately 44 employees and subcontractors had approximately 25 employees at the jobsite. After the picketing commenced, Bikle called several labor officials in an attempt to ascertain the reason for the picketing. Eventually he contacted Garcia and ar- ranged to meet with him that afternoon. Bikle also or- dered the creation of a separate entrance to the Land- 6 On the morning of July 20, the main entrance was the only entrance to the Landmark project mark project for the exclusive use of Tiffany employees. The new entrance was completed about 3:30 p.m. and was marked with a sign which stated: "TIFFANY'S EM- PLOYEES, SUPPLIERS AND CUSTOMERS, THIS GATE ONLY." The "main" gate was posted as follows: "LANDMARK PUBLIC ENTRANCE. TIFFANY'S EMPLOYEES, SUPPLIES AND CUSTOMERS FORBIDDEN rO E.N' ER THIS GATE." The "Tif- fany" gate was located approximately 400 feet away from the "main" gate. Also on July 20, at 11:36 a.m., Pacific daylight time, Bikle sent Respondent the following telegram: YOU ARE HEREBY INFORMED THAT THRUST IV IN- CORPORATED HAS ESTABLISHED A SEPARATE GATE AT ITS lADMARK [sic] OFFICE PROJECT ON L ANDING DRIVE MOUNTAIN VIEW CAI IFORNIA THE SIGN ON ONE GATE WILL RIAD (TIFFANY EMPLOYEES, SUP- PLIERS AND CUSTOMERS THIS GATE ONLY) THE SIGN AT THE MAIN ENTRY WILL READ AS FOI LOWS "LANDMARK PUBLIC ENTRANCE, TIFFANY EMPLOY- EES SUPPLIERS AND CUSTOMERS FORBIDDEN TO ENTER THIS GATE" WOULD YOU PLEASE CONFINE YOUR PICKETING TO THE TIFFANY GATE ONLY IF ANY ACTIONS THREATS OR FINES ARE USED AGAINST OUR UNION CONSTRUCTION WORKERS TO DISSUADE THEM FROM WORKING AT THE LANDMARK IN AC- CORDANCE WITH [sic] OUR CONTRACT A GREAT DEAL OF FINANCIAL HARM WILL BE CAUSED TO THRUST IV INCORPORATED AND WE WILL BE FORCED TO TAKE WHATEVER ACTION IS ALLOWED US UNDER THE LAWS TO RECOVER OUR DAMAGES I AM AVAILABLE night or day PLEASE CALL [phone number deleted, unnecessary for decisional pur- poses; emphasis supplied.] Bikle also instructed Castaneda to discontinue the work of the day janitor, to have all Tiffany employees work only from 5:30 p.m. to midnight, and to use only the gate reserved for them. Castaneda telephoned all affected em- ployees and related to them Bikle's instructions. There is no contention that any Tiffany employees used the "main" gate after July 20. At or about 4 p.m., Bikle, Taylor, and Shields met with Garcia. Garcia introduced himself as an organizer for Respondent and his status as a representative of the Union is clearly established on this record. There was some disparity in the witnesses' versions of what oc- curred during the meeting. Taylor and Bikle gave similar accounts of the meeting. According to Bikle, Garcia ex- plained, in response to the question of why they were picketing, that Respondent was attempting to organize Tiffany and was experiencing difficulty. Garcia asserted that Tiffany was "an outlaw company that" did not pay even minimum wage, did not provide employees with any benefits, hired illegal aliens, and intimidated them by threatening to call the Immigration and Naturalization Service. The Tiffany operation was likened to other companies in the field and specifically it was likened to Medallion. 7 1 Service by Medallion is the employer in a case referred to by both Charging Party and the General Counsel in Local 77. Service Employees Continued 631 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bikle expressed concern over the possibility that a sub- contractor on "his project" was intimidating employees and wanted an opportunity to investigate the allegations and to have Garcia meet with a representative of Tiffany as part of the investigation. Garcia assertedly expressed his willingness to afford Thrust IV the opportunity to in- vestigate his allegations and offered not to picket as long as Bikle would agree to accept bids for the janitorial work only from union contractors when Tiffany's con- tract expired in November. Bikle explained that Tiffany was hired pursuant to a system of competitive bidding open to both union and nonunion firms whereby the Company considered hiring the lowest three or four bidders and made inquiries about this group of low bidders, prior to determining which company to hire, and that the contract contained a 30- day notice period for cancellation.8 Bikle opined that the union companies were not "that far off. That everybody was more or less in the same range .... " The Compa- ny intended to accept bids from all interested companies, both union and nonunion, in November when Tiffany's contract expired. Bikle again assertedly expressed his concern over the alleged intimidation and requested that Garcia attend a meeting to be held that evening wherein the Union was seeking sanction of its picketing, and not picket on July 21, but rather meet with him on July 21 after Bikle had an opportunity to discuss the Union's charges with Tiffany. Garcia assertedly replied that he would consult with his boss who was in Hawaii, and further stated: . . . there is no way to organize these-what I can call outlaw. To me they are outlaws. People who go around intimidating people are outlaws, but that is no way to organize these people, because they just call the-he used the three letter-INS. They just call the INS and they just disappear like the ge- stapo or something. How can you organize people who keep disappearing in the middle of the night. . . . The only way they could get the kind of bene- fits and protection to these people is to organize the job sites. Come around to guys like us and persuade us-I think that was the word that was being used at that point. To only contract with union subcon- tractors. International Union, AFL-CIO (Service by Medallion), AU Decision JD- (SF)-110-81 (April 15, 1981), wherein the ALJ found the respondent vio- lated Section 8(b)(4) and (7)(C) of the Act. There was no showing that the administrative law judge decision was appealed. Charging Party and counsel for the General Counsel argue that the failure to file exceptions in the Medallion case should not be a shield against a finding of a procliv- ity to violate the Act. Since there was no showing that exceptions were filed to the Medallion decision, I am constrained by Board precedent from using the administrative law judge decision as a basis for finding such a proclivity as to warrant issuance of a broad order. See Teamsters Union Local 70 (C & T Trucking Co.), 191 NLRB 11 (1971), affd. 458 F.2d 1201 (5th Cir. 1972), and Tri-State Building and Construction Trade Council, AFL-CIO (Structures. Inc.), 257 NLRB 295 (1981). 8 Bikle opined that threatening employees may be considered as non- performance permitting cancellation of the contract more quickly if the allegations by the Union are proved true. As previously indicated, Taylor closely substantiated Bikle's testimony.9 Taylor testified as follows: He [Garcia] said that number one, we should fire Tiffany from our project and he explained it for the, for the reasons that Tiffany was the same as Medal- lion Service and that they, they use intimidation. He basically said that, that the workers for the mainte- nance firm are intimidated by the fear of deporta- tion. He said that they are paid low wages, receive no benefits, and it's because of this fear of deporta- tion that, that they are somewhat held under this working situation. He said that he-we should fire Tiffany and that they should be replaced with a union firm. Hugh explained to him that we have a contract with Tiffany and that in the contract it would take 30 days for us to give 30-day notice before we could release ourselves out of the con- tract. And he said he understood that if we agreed to terminate Tiffany and replace them with a union from that we wouldn't have any problems with picketing in that interim period. Bikle also explained that the picket line could cause Thrust IV to "Suffer some heavy financial losses . . . all of our construction workers are union." Additionally Taylor asserts that Bikle asked Garcia "if he had ap- proached the individual workers who worked for the maintenance company and asked them if they wanted to be part of the union. He said that, that Tiffany would not permit that and that it wouldn't work."10 Garcia corroborated in part Bikle's and Taylor's ver- sion of the meeting. Specifically Garcia recalled the fol- lowing statements by Bikle, the inquiry as to why the picket line was set up, that Thrust IV and "grown with the union" that he should not "throw" all nonunion jani- torial firms into the same classification, that he was con- cerned that some of the Tiffany employees may have been threatened, that if the Union continued picketing it would be like "declaring war" on him, and Bikle threat- ened to fire all the construction workers who crossed the picket line and start a nonunion construction firm to complete the project and to develop into the largest non- union construction contractor in the area. Garcia did not deny offering to remove the picket line if assurances were given that in November the Company would use a "union" janitorial firm, that the only way to organize the industry was to organize the jobsites. Garcia also ad- mitted he knew that the construction activities were being performed by employees who were union mem- bers. Based on demeanor, inherent probabilities, discrepan- cies such as Garcia's admissions that Bikle exhibited pride in how the Company grew during its relationship with the various trade unions, rendering improbable his threat that he would fire all employees who crossed the picket line and convert his operations into a "nonunion" company, clarity of recollection, and lack of corrobora- 9 The witnesses were sequestered. io Shields generally corroborated Taylor and Bikle, but did not dem- onstrate a clear recollection of the meeting, explaining that it was only one of many meetings he attended that day 632 SERVICE EMPLOYEES UNION LOCAL 77 tive testimony on the salient points lead me to conclude that Bikle and Taylor provided an accurate and true ac- count of the meeting and I credit their testimony. C. The Events of July 21 The Respondent did not picket on July 21 as agreed during the July 20 meeting. Also on this date, Bikle sent the Union a telegram which reads as follows: AS OF THIS DATE THE SECURITY GUARDS OF THE LANDMARK OFFICE CENTER IN MOUNTAIN VIEW WILL ONLY ALLOW TIFFANY MAINTENANCE COMPA- NY PERSONNEL ON THE PROJECT BETWEEN THE HOURS OF 530 PM AND MIDNIGHT. On the evening of July 21, Bikle again met with Garcia. Also present were Taylor and Castaneda. The meeting lasted approximately 3 hours. There is very little contradictory testimony regarding this meeting and no refutation of most of the testimony. Bikle introduced Castaneda to Garcia, indicated that Garcia made several serious allegations regarding Tiffany's treatment of its employees, and had Garcia repeat the allegations he had made to Bikle and Taylor the preceding day. In reply to the allegation that Tiffany paid below union standard wages, Castaneda replied that union wages start at $4.50 an hour and it takes a member 3 years to reach $6 an hour; that Tiffany employees start at $4.25 an hour, slightly less than the union minimum, but one of the employees at Landmark was already making over $6 an hour with less than I year of employ- ment at Tiffany. Castaneda also stated that Tiffany gave its employees benefits such as medical insurance, holi- days, vacations, and life insurance, but he admitted that they did not have a dental insurance or a pension plan for their employees. Castaneda denied the allegation that Tiffany was affiliated with Medallion, that he did not know the source of Garcia's information, but he did not think Garcia spoke with any of his employees. Garcia as- serted that he did not believe Tiffany paid the wages and benefits outlined by Castaneda. Castaneda also represent- ed that as far as he knew his employees were not union members as a matter of choice. Taylor suggested that, since the janitors were then cleaning an area close to the meeting site, they invite them into the conference room, assure them they will not jeopardize their jobs, and thereby ascertain the truth. Bikle also offered Garcia the opportunity to solicit signa- tures on authorization cards and to inquire why they did not want to join the Union. Castaneda agreed but Garcia refused, asserting he knew the wages and benefits paid by Tiffany and it was unnecessary to subject the employ- ees to the suggested meeting, that the employees would not be candid in such a situation. According to Garcia: I did not want to place the workers in any kind of a hotbed situation. I told them because my expe- rience has been and the nature of the janitorial in- dustry that employers have been, in my own per- sonal experience, very callous and, and have been very severe in their actions that they have done in response to, to beating a union or keeping a union out of their company and I didn't want to place these workers in any jeopardy. It was unnecessary because I knew what they were making. Garcia does not deny or refute that Bikle told him during the meeting the Union did not know if Tiffany employees were illegal aliens; that if the Union picketed the jobsite starting at 7 o'clock the following morning as Garcia represented, to organize the jobsite as the only ef- fective means of protecting Tiffany employees; that no Tiffany employees would be present because they were to start after 5:30 p.m. and the guards were instructed not to permit them on the premises prior to that time; that it would cost Thrust IV about $10,000 to $20,000 due to lost construction time and would cause Thrust IV employees to lose $9,000 to $10,000 in wages; that the Union was holding a gun to the head of Thrust IV; that Tiffany and its employees would not be impacted by the picketing; and that if Thrust IV acquiesced to the Union's demands it would result in the firing of Tiffany employees, the individuals the Union was ostensibly trying to protect. Furthermore, Garcia did not deny re- plying that there were always casualties of war, that it was the only way he could accomplish his goal of orga- nizing the industry by organizing jobsites, that he re- quested Thrust IV to terminate its contract with Tiffany and to accept bids only from "union subcontractors"; and the Union would give them time to meet its demand. When Bikle replied to their demands by saying that they would accept bids in November from both union and nonunion firms, Garcia did not deny replying, "Well, we'll just have to picket you tomorrow." Bikle claims to have then said, without controversion and with corrobo- ration, that Garcia could picket at 5:30 p.m. at the gate reserved for Tiffany; that Garcia could personally enter company property during the day to ascertain if any Tif- fany employees were working; and, if Garcia found any such employees present, Bikle would join him on the picket line; that picketing at 7 a.m. the following day, as threatened, is illegal and would be done solely to injure Thrust IV. Garcia said, "My instructions are . . . to put the picket up . .. my boss wasn't too pleased that I didn't picket today.... We want you to agree to only subcontract with union people." Garcia did not deny saying during the meeting that the Union did not know the names of Tiffany employees or the locations of the jobsites serviced by Tiffany to or- ganize the Company; therefore the most effective means of organizing the industry was to organize the jobsites. Garcia also stated that Bikle would lose much more the next day due to the picketing than the added cost of con- tracting with a union firm; that he could avoid the ex- pected monetary impact of the picketing by merely agreeing to "get rid of ... Tiffany and agree[ing] to hire union people," that the Union would place an "in- formational picket" line at Landmark. Bikle told Garcia that he asserted Tiffany was harassing its employees which it uses as a basis to harass Thrust IV, which he described as unjust as the activity he complained of, that it was improper, and was a declaration of war. The Union did not disclaim Garcia's representation that his boss, then visiting Hawaii, instructed him to picket as 633 DECISIONS OF NATIONAL LABOR RELATIONS BOARD part of an overall plan to organize the jobsite. For the reasons stated above, Bikle's and Taylor's version of the meeting are credited. D. The Events of July 22 On July 22, between 7 and 7:30 a.m., the Union com- menced picketing at the Landmark project. Taylor, Shields, Castaneda, and Bikle observed the pickets prin- cipally patrolling the area near the main gate, spending substantially less time at the Tiffany gate. The only picket these witnesses recognized was Garcia. Garcia denied the allegation that the Union picketed at or near the main gate. Based on demeanor, the fact that many of Garcia's responses regarding the picketing on this date were in response to leading questions, the lack of cor- roboration, inherent probability such as the absence of Tiffany employees, the uncontroverted and credited evi- dence that Garcia admitted the purpose of the picketing was to force Thrust IV to fire Tiffany and hire only union firms, the impact the picketing had upon Thrust IV employees," the inherent probabilities as well as all the other variant factors considered in reaching the credibility issues, including clarity of recall and candor, Garcia's uncorroborated denial is not credited. Later in the morning, Bikle and Taylor spoke to Garcia while he was picketing near the main entrance. Bikle said, "Just to be immensely clear about this, you recognize that there aren't any Tiffany employees on the job." According to Bikle, whose testimony was not con- troverted, he replied, "So what?" Bikle then said, "... and you realize that the Tiffany gate is way down there, not up here near our main gate." Garcia replied, "... that they were picketing the job site and not the gate." The picketing terminated early that afternoon, at ap- proximately 2 p.m., well before the Tiffany employees were to start working at the Landmark project. The following day, again according to Bikle's uncon- troverted and credited testimony, Garcia telephonically offered to not picket any more if Bikle would agree to drop the unfair labor practice charge which initiated this proceeding. Bikle refused, explaining to Garcia that they agreed the preceding Tuesday evening that the only indi- viduals who would be hurt by the Union's actions were Bikle and his employees, noting that the picketing ended at 2 p.m. IV. ANALYSIS AND CONCLUSIONS The key question in this proceeding is whether, under the circumstances present in this case, the picketing of the Landmark project, a construction site involving common situs neutrals, had the unlawful object of em- broiling any of the neutral employers and/or employees in its controversy with the primary employer, Tiffany Maintenance Service. Section 8(b)(4)(i) and (ii) of the Act prohibits picketing by a union or a union's inducing or encouraging employ- ees to strike or to otherwise refuse to perform services, II Of the 85 men who worked on the construction project the preced- ing day, only 10 reported to work; many of the others were observed in or near their vehicles which were parked on the street which runs per- pendicular to the main entrance to the Landmark project. or for a union to restrain or coerce an employer where the object of such conduct is to require an employer to cease doing business with another person or to injure a third person who is completely unconcerned in the dis- agreement between the employer and the union. See, generally, Dallas Building and Construction Trades Coun- cil, 164 NLRB 938 (1967), enfd. 396 F.2d 677 (D.C. Cir. 1968); and Sheet Metal Workers International Association, AFL-CIO (Burt Mfg. Co.) v. N.L.R.B., 293 F.2d 141, 146 (D.C. Cir. 1961). National Woodwork Manufacturers Asso- ciation v. N.L.R.B., 386 U.S. 612 (1967). The Senate Committee Report regarding Section 8(b)(4) of the Act characterized the conduct to be pro- scribed by its enactment as follows: Thus, it would not be lawful for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B; nor would it be lawful for a union to boycott employer A because employer A uses or otherwise deals in the goods of or does business with employer B (with whom the union has a dis- pute). [S. Rept. 510, 80th Cong., Ist sess. 22, I Leg. Hist. 428. (1947)112 As found in Plumbers and Steamfitters Local 129, AFL- CIO (Gross Plumbing and Heating Co., Inc.), 244 NLRB 693, 701 (1979): However, when a union pickets an employer for the sole purpose of compelling conpliance with pre- vailing area wage and benefit standards, the Board "regards" this so-called "area standards" picketing as nonrecognitional and outside the above proscrip- tions of the Act. See, e.g., Local Union No. 171, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Keith Riggs Plumbing and Heating Contractor), 137 NLRB 1125 (1962). A union may attempt to ensure that an employer "is required to pay employee costs equivalent to those paid by the organized employer." Retail Clerks In- ternational Association. Local Union No. 899, et al. (State-Mart, Inc. d/b/a Giant Food), 166 NLRB 818, 822-824 (1967), enfd. 404 F.2d 855 (9th Cir. 1968). This principle, however, does not allow a union to force, under the guise of "area standards" mainte- nance, its collective-bargaining agreement, part and parcel, upon employees it does not represent. See, e.g., Centralia Building & Construction Trades Coun- cil (Pacific Sign & Steel Building Co., Inc.), 155 NLRB 803, 806 (1965), enfd. 363 F.2d 699, 701 (D.C. Cir. 1966). Moreover, the proscriptions of Sec. 8(b)(7)(A) and (b)(4)(i) and (ii)(C) apply as long as one of the union's objects is illegal; it is im- material that the union may also have other legiti- mate objects. The totality of the Union's conduct is examined in de- termining its objectives and the Board is not bound by 12 See further similar statements in H.R. Conf. Rept. No. 510, 80th Cong., Ist sess. 43 t Leg. Hist 547 (1947). 634 SERVICE EMPLOYEES UNION LOCAL 77 the legends on picket signs as the professed object of the picketing. International Brotherhood of Electrical Workers, Local 408 (Gulf Coast Building and Supply Company, Inc.), 172 NLRB 413 (1968), enfd. 413 F.2d 1085 (D.C. Cir. 1969); and Local 307, Plumbers, United Association of Journeymen and Apprentices of the Plumbing and Pipefit- ting Industry (Meyer Plumbing, Inc.), 187 NLRB 652 (1978), enfd. 469 F.2d 403 (7th Cir. 1972), Consideration of all the surrounding circumstances re- quires a conclusion that Respondent violated Section 8(b)(4) of the Act. In reaching this conclusion, the fol- lowing factors were considered: (I) statements by the Union to the secondary employer; (2) violation of Moore Dry Dock standards;' L (3) evidence of the union's lack of real interest in the subcontractor's wages and benefits; and (4) the impact of the 1-day hiatus in picketing with- out an attendant renunciation of unlawful object. As found above, Garcia, on July 17, told the neutral employer that there might be pickets at the Landmark project the following Monday, July 20. Garcia did not inquire when the janitorial staff would be present; he just asked about the identity of the subcontractor. On both July 20 and 22 picketing commenced when there was no showing that Respondent had reason to believe Tiffany employees were present. This factor will be discussed in more detail below. Also on both July 20 and 21 Garcia stated that the purpose of the picketing was to organize the jobsite, that the picketing would cease if the neutral employer would agree to fire Tiffany and subcontract only with union firms. The Union also made the state- ment on the picket line that the known absence of Tiffa- ny employees was not determinative of when it picketed, demonstrating that the clear purpose for the picketing was to force the neutral employer to cease doing busi- ness with Tiffany. The picketing would have clearly continued if Tiffany were paying area standard wages and benefits since Garcia explained his object was to or- ganize the jobsite as the only means of organizing the in- dustry. These statements and actions by the Union clear- ly establish an intent to enmesh the primary contractor for the purpose of terminating its contract with Tiffany, a nonunion subcontractor. The Union clearly indicated to the neutral employer that it would not be satisfied with anything less than removal of Tiffany from the Landmark project, which is an unlawful object of picket- ing. See International Brotherhood, Electrical Workers Local 11 (L. G. Electric Contractors, Inc.), 154 NLRB 766 (1965); Carpenters Local Union No. 944 (Ralph Duris Plumbing), 159 NLRB 563 (1966); Local 307, Plumbers (Meyer Plumbing, Inc.), supra; and Local No. 441, Electri- cal Workers (Rollins Communications, Inc.), 208 NLRB 943 (1974). 3 Sailors' Union of the Pacific (Moore Dry Dock Company), 92 NLRB 547, 549 (1950), which held: · . I that common situs picketing will be presumed to be lawful and primary if it meets the following conditions: "(a) picketing is strictly limited to the times when the situs of dispute is located on the sec- ondary employer's premises; (b) at the time of the picketing the pri- mary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs, and (d) the picketing discloses clearly that the dispute is with the primary employer." It is also found that Respondent violated the standards set forth in the Moore Dry Dock decision. 4 The Union clearly failed to confine its picketing to the times and lo- cations or places reasonably close to the location used by the primary employer. As mentioned above, on July 17, the Respondent indicated uncertainty in its belief that the primary employer was even present at the jobsite and when told of its presence did not ascertain when the Company's employees would be present. On July 22, the Union commenced picketing at a time when it knew the employees of Tiffany would not be present, continued picketing after being informed that these employees were not on the site,' picketing principally near the neutral employees' entrance,' 6 knowingly picketed in a manner on July 22 particularly that optimized the possibility of enmeshing neutrals. The effectiveness of the plan is dem- onstrated by the number of neutral employees who failed to report to work on July 22. Another basis for finding that the picketing was in fur- therance of an unlawful objective is the Union's failure to demonstrate that it held a reasonably couched belief that Tiffany paid substandard wages and benefits. As found above, Garcia's representation that he spoke to a Tiffany employee at the Landmark project is not credi- ble based on demeanor, lack of details such as benefits paid, the telephone call of July 17 indicating uncertainty as to the identity of the janitorial subcontractor no less the wages and benefits paid its employees, the failure of the Union to contact the subcontractor prior to picket- ing, as well as the other factors mentioned above, indi- cates a lack of knowledge and hence real interest in the primary employees' wages and benefits. Gulf Coast Building and Supply Co., Inc., supra. However, even if it were assumed arguendo that the Union was reasonably aware of the wages and benefits paid by Tiffany, the Union's avoidance of clarifying the matter during the July 21 meeting by talking to Tiffany employees, or detailing how Tiffany could resolve the dispute, but in lieu thereof directing all its picketing ef- forts directly at the secondary contractor admittedly to ensure that only companies having contracts with the Union are used, further substantiates the finding that the Union evidenced lack of real interest in the primary em- ployer's assertedly substandard wages and benefits. See Local 4, Hoisting and Portable Engineers (0. DiMascio Corp.), 167 NLRB 888 (1967); Gulf Coast Building and Supply Company, Inc., supra, and Sheet Metal Workers Local 80 (George W Sise), supra. The I-day hiatus in picketing was not accompanied by a disclaimer of unlawful objective; in fact picketing was resumed, as found hereinabove, after clear expressions verbally and in the manner of picketing, that the basis of the picketing was for an unlawful objective. There are no facts in this proceeding upon which it could be rea- sonably found that the 1-day hiatus in picketing was a "4 The Moore Dry Dock criteria are applicable to area standards picket- ing in common situs situations, as present in the instant proceeding i' Local Vo. 481, Electrical Workers (Mechel Incorporated), 234 NLRB 297 (1978). '6 See Sheet Metal Workers Local 80 (George W Sise)., 234 NLRB 297 (1978), and Carpenters Local 102 (Arthur L Elshoutl. 241 NLRB 392 (1979). 635 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manifestation of change in object. The Union picketed the secondary employer at times when the primary em- ployees were known to be absent, after being informed of the adverse impact the picketing would have on the secondary employer; therefore the location and the times of the picketing on July 22 all dispute any possible con- tention that there was a change in objectives during the hiatus. In sum, it is concluded that the "totality of the union's conducts" clearly exhibits the Union's intent to have Thrust IV cease doing business with Tiffany Mainte- nance and to have Thrust IV and other neutral employ- ees honor the picket line, objectives proscribed by Sec- tion 8(b)(4) of the Act. V. THE REMEDY Having found that Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the Act, I shall recommend that it cease and desist from such practices and take certain af- firmative actions designed to effectuate the Act. Counsel for the General Counsel and the Charging Party seek a broad cease- and-desist order characterizing Respondent's behavior as a flagrant, premeditated, and malicious violation of Section 8(b)(4) of the Act. As found above, the Administrative Law Judge's decision in Service by Medallion cannot be used as a basis for finding Respondent to be a "recidivist" as claimed by counsel for the General Counsel. See cases cited above. The Charging Party's contention that Respondent's failure to appeal the Service by Medallion decision should not serve as a basis for finding repeated violations for it permits a union to repeatedly violate the Act, yet by the simple device of failing to appeal the decision of the Adminis- trative Law Judge it avoids the only effective remedy to such a plan, a broad cease-and-desist order. The finding of one prior violation by an administrative law judge will not support a finding that Respondent has demon- strated a proclivity to violate the Act and the Union's actions were not shown to be so flagrant as to warrant the imposition of a "broad order." Respondent cites the standard enunciated by the Board in Hickmott Foods, Inc., 242 NLRB 1357 (1979), which is found inapplicable herein for the order involving a violation of Section 8(b)(4)(i) and (ii)(B) of the Act does not contain the ap- plicable language "in any other" or "in any like of relat- ed manner." The short duration of the unlawful activity and the adequacy of the standard order to protect both Thrust IV and Tiffany lead me to conclude that a board cease-and-desist order has not been shown to be appro- priate in this case. CONCLUSIONS OF LAW 1. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 2. Thrust IV is an employer engaged in commerce or in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. 3. By the picketing and related conduct set forth in section III, above, Respondent has induced and encour- aged individuals employed by Thrust IV, and by other secondary employers, to engage in a refusal in the course of their employment to perform services for their em- ployer and has restrained and coerced Thrust IV, and other secondary employers, with an object of forcing or requiring Thrust IV to cease doing business with Tiffa- ny, thereby engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' 7 The Respondent, Service Employees Union Local 77, Service Employees International Union, AFL-CIO, Mountain View, California, its officers, agents, and rep- resentatives, shall: 1. Cease and desist from: (a) Engaging in or inducing or encouraging employees of Thrust IV, or any other person engaged in commerce or in industry affecting commerce, to engage in a strike or refusal in the course of their employment to use, man- ufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services where an object thereof is to force or require Thrust IV, or any other person, to cease doing business with Tiffany Maintenance Service, Inc. (b) Threatening, coercing, and restraining Thrust IV, or any other person engaged in commerce or in an in- dustry affecting commerce, where an object thereof is to force Thrust IV, or any other person to cease doing business with Tiffany Maintenance Service, Inc. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix.""' Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or cov- ered by any other material. (b) Sign and mail to the Regional Director for Region 32, sufficient copies of said notice, to be furnished by him for posting by Thrust IV, and all other persons en- gaged in building construction services at the Landmark project, if they are willing, at places where they custom- arily post notices to their employees. 17 In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." is In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes. 636 SERVICE EMPLOYEES UNION LOCAL 77 637 (c) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith.