General Service Employees Union Local No. 73

GENERAL SERVICE EMPLOYEES UNION LOCAL NO. 73 General Service Employees Union Local No. 73, affiliated with Service Employees International Union, AFL-CIO and Andy Frain, Inc. and Allied Security, Incorporated-Cbicago. Cases 13-CC- 942, 13-CC-947, and 13-CP-327 June 21, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On November 29, 1976, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs, and Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. Allied Security, Incorporated-Chicago, herein called Allied Security, is engaged in the business of providing contract security guard service. The complaint alleged, inter alia, that Respondent, a labor organization which admits into membership employees other than guards, made threats to picket and/or did picket Allied Security and its customers on 3 separate dates with an object of forcing Allied Security to recognize or bargain with Respondent as the collective-bargaining representative of Allied's guard employees. At the hearing, Respondent with- drew its answer and amended answer, but did not admit that it had committed any unfair labor practices. The parties also agreed to the language of a proposed "Order" which provided, inter alia, that Respondent refrain from picketing or threatening to picket Allied Security in any manner for 30 days from the receipt by Allied Security of a letter by Respondent disclaiming any interest in organizing its employees. The General Counsel then moved for summary judgment and the motion was granted. The Adminis- trative Law Judge found that Respondent has violated Section 8(bX)(4)(i) and (ii)(B) and Section 8(b)(7)(C) of the Act and in his recommended Order adopted the language proposed by the parties. In his Conclusion of Law 4, the Administrative Law Judge concluded that Respondent had violated Section 8(b)(7)(C) of the Act by threatening to picket and by picketing Allied Security and its customers for a 230 NLRB No. 52 period in excess of 30 days without a valid representa- tion petition having been filed Respondent and the General Counsel have excepted to the Administra- tive Law Judge's Conclusion of Law 4 and that portion of his recommended notice based thereon on the grounds that the complaint does not allege that Respondent picketed or threatened to picket Allied Security and its customers for a period in excess of 30 days without a valid petition having been filed under Section 9(c) of the Act. The General Counsel further contends that since Respondent admits nonguards into membership it cannot be certified as the collective-bargaining representative of Allied Securi- ty's guards by virtue of Section 9(bX3) of the Act and, therefore, Respondent may not picket or threaten to picket Allied Security, notwithstanding the "thirty days" language of Section 8(bX7)(C). In support thereof, the General Counsel relies, inter alia, on General Service Employees Union Local No. 73, affiliated with Service Employees International Union, AFL-CIO (A-I Security Service Co.), 224 NLRB 434 (1976), and Drivers, Chauffeurs, Warehousemen and Helpers, Local Union No. 71, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Wells Fargo Armored Service Corporation), 221 NLRB 1240 (1975). We find merit in these exceptions. According- ly, we shall amend Conclusion of Law 4, as set forth below, and shall also substitute an appropriate notice. AMENDED CONCLUSIONS OF LAW Substitute the following for the Administrative Law Judge's Conclusion of Law 4: "4. By threatening to picket and by picketing Allied Security, Incorporated-Chicago, and its cus- tomers for the purpose of forcing or requiring Allied Security, Inc., to recognize and bargain with the Respondent as the collective-bargaining representa- tive of its employees when the Respondent has not been certified as the representative of such employ- ees and cannot be so certified by virtue of the provisions of Section 9(b)(3) of the Act, the Respon- dent herein violated Section 8(b)(7XC) of the Act. All of the aforesaid unfair labor practices have a close, intimate, and substantial effect on commerce be- tween the several states." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, General Service Employees Union Local No. 73, affiliated with 351 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Service Employees International Union, AFL-CIO, Chicago, Illinois, its officers, agents, and representa- tives, shall take the action set forth in the said recommended Order except that the attached notice is substituted for that of the Administrative Law Judge. MEMBER MURPHY, dissenting in part: I disagree with my colleagues that Respondent violated Section 8(b)(7)(C) of the Act as alleged in the consolidated complaint.' Although Respondent does not contest the com- plaint allegations that the employees of Allied Security, Incorporated-Chicago are guards within the meaning of Section 9(b)(3) of the Act, I cannot- as a matter of fact or law-accept that conclusion. The consolidated complaint alleges that Allied Security is in the business of providing contract security guard services. In other words, it provides guards for its customers, not for itself. In my concurring opinion in Brink's, Incorporated, 226 NLRB 1182 (1976), I took the position that the term "guard" applies only to an employer's own plant protection employees. Clearly, the employees of Allied Security do not fit within that definition. Accordingly, I would find that none of Allied Security's employees here are guards within the purview of Section 9(b)(3). Thus, since there is no allegation that picketing for an object of recognition occurred for more than 30 days without the filing of a petition for an election, and inasmuch as a threat to picket does not, in my view, invoke the proscription of Section 8(b)(7)(C),2 I perceive no basis for finding that the Union has violated that section of the Act.3 I would, therefore, dismiss the complaint in Case 13- CP-327. I I agree with their finding that Respondent violated Sec. 8(bX4Xi) and (iiXB) of the Act. 2 See my dissent in General Service Employees Union Local No. 73 (A-I Security Service Co.). 224 NLRB 434. 3 See my dissent in International Brotherhood of Teamsters, Local 344 (Purolator Security, Inc.), 228 NLRB 1379 (1977). 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 individ- ual employed by any person engaged in interstate commerce or in an industry affecting commerce to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, or commodities, or to perform any services, and WE WILL NOT threaten, restrain, or coerce any person engaged in interstate com- merce or in an industry affecting interstate commerce where, in either case, the object thereof is to force or require said person, or any other person, to cease doing business with Andy Frain, Inc., or Allied Security, Incorporated-Chicago, or to force or require Andy Frain Inc., or Allied Security, Incorporated-Chicago to recognize us as the collective-bargaining representative of its employees unless we have been certified pursuant to Section 9 of the National Labor Relations Act. WE WILL NOT picket or 'threaten to picket Allied Security, Incorporated-Chicago, where an object thereof is to force or require Allied Security, Incorporated-Chicago, to recognize or bargain with us as the representative of guards employed by Allied Security, Incorporated-Chi- cago, or forcing or requiring employees of Allied Security, Incorporated-Chicago, to select us as their collective-bargaining agent, when we have not been certified as the representative of such employees and cannot be so certified by virtue of the provisions of Section 9(b)(3) of the Act. WE WILL notify Allied Security, Incorporated- Chicago, that we do not have any interest in organizing their employees or in being recognized by it as a bargaining agent, and WE WILL refrain from picketing Allied Security, Incorporated- Chicago, for a period of 30 days from the date of receipt of said letter of disclaimer. GENERAL SERVICE EMPLOYEES UNION LOCAL No. 73, AFFILIATED WITH SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO DECISION FINDINGS OF FACT WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before me at Chicago, Illinois, upon a consolidated unfair labor practice com- plaint1 issued by the Regional Director for Region 13 which alleges that Respondent General Service Employees The principal docket entries in this case are as follows: Charge filed against Respondent by Andy Frain, Inc., in Cases 13-CC-942 and 13-CP- 326 on August 10, 1976; charge filed against Respondent by Allied Security. Inc., in Case 13-CP-327 on August 23, 1976, and amended on September 23, 1976; charge filed against Respondent by Allied Security, Inc., in Case 13-CC-947 on September 23, 1976; consolidated complaint issued against Respondent in Cases 13-CC-942 and 13-CP-326 on August 20, 1976; complaint issued in Case 13-CP-327 on September 10, 1976; order consolidating Cases 13-CC-942, 13-CP-326, and 13-CP-327 on September 9, 1976; amended complaint in Case 13-CC-942 issued on October 4, 1976; 352 GENERAL SERVICE EMPLOYEES UNION LOCAL NO. 73 Union Local No. 73, affiliated with Service Employees International Union, AFL-CIO, unlawfully picketed or threatened to picket Andy Frain, Inc.,2 and Allied Security, Incorporated, and customers thereof in violation of Section 8(b)(4)(i) and (ii)(B) and Section 8(b)(7)(C) of the Act. As part of a settlement of this matter which was concluded by the parties, the Respondent, without admitting the comm is- sion of any unfair labor practices, withdrew its answer and amended answer, whereupon the General Counsel moved for summary judgment. Under Section 102.20 of the Board's Rules and Regulations, Series 8, as amended, any allegation not specifically denied by a respondent's answer is deemed to be admitted. Since there was no answer before me, there was no material issue of fact to be tried, so the General Counsel's motion for summary judgment was granted. Accordingly, I find as a fact upon the record in this case that the Respondent did, by the acts and conduct alleged in the consolidated complaint herein, violate Section 8(b)(4)(i) and (ii)(B) and Section 8(bX7)(C) of the Act. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Andy Frain, Inc., and Allied Security, Incorporated (Chicago), are, respectively, employers engaged in com- merce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent General Service Employees Union Local No. 73, affiliated with Service Employees Interna- tional Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening to picket United Air Lines with an object of forcing or requiring United Air Lines to cease doing business with Andy Frain, Inc.; by picketing with an object of forcing Car Carriers, Inc., to cease doing business with the Ford Motor Corporation, with the further object of forcing the Ford Motor Corporation to cease doing business with the Hertz Corporation, and for the further object of forcing the Hertz Corporation to cease doing business with Allied Security, Incorporated (Chicago), and also to force Allied Security, Incorporated (Chicago) and Frain to bargain with Respondent as the collective-bar- gaining representative of its employees, the Respondent herein violated Section 8(b)(4Xi) and (iiXB) of the Act. 4. By threatening to picket and by picketing Allied Security, Incorporated (Chicago), and its customers for a period in excess of 30 days without a valid representation petition having been filed, for the purpose of forcing or consolidated complaint issued in Cases 13-CP-327 and 13-CC-947 on October 5, 1976: charge in Case 13-CP-326 withdraw on October 6. 1976; order further consolidating cases omitting Case 13-CP-326 issued on October 11, 1976; Respondent's answer filed on a date not apparent from record; Respondent's amended answer filed on a date not apparent from record; hearing held in Chicago, Illinois, on November 8, 1976. 2 Respondent admits, and I find, that the Charging Party Andy Frain. Inc., is an Illinois corporation which maintains its principal place of business in Chicago, Illinois, where it is engaged in the business of providing personnel for crowd control, baggage inspection, passenger screening, and related services. Dunng the preceding calendar year, a representative period, it has performed such services valued in excess of $500.000 of which S50,000 were performed in States other than Illinois. Accordingly, it is an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) requiring Allied Security, Inc., to recognize and bargain with the Respondent as the collective-bargaining represen- tative of its employees, the Respondent herein violated Section 8(bX7X)(C) of the Act. All of the aforesaid unfair labor practices have a close, intimate, and substantial effect on commerce between the several states. REMEDY Having found that the Respondent herein has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take other action designed to effectuate the purposes and policies of the Act. As the parties have agreed to the language of a proposed Board Order, and as the proposed order substantially remedies the unfair labor practices found herein, I will recommend said order to the Board. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER3 Respondent General Service Employees Union Local No. 73, affiliated with Service Employees International Union, AFL-CIO, Chicago, Illinois, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Threatening, coercing, and restraining United Air Lines or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of Andy Frain, Inc., or to cease doing business with Andy Frain, Inc., or forcing or requiring Andy Frain, Inc., to recognize and bargain with the Respondent as the representative of its employees, unless Respondent has been certified as the representative of such employees under the provisions of Section 9 of the Act. (b) Inducing or encouraging any individual employed by Car Carriers, Inc., 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 employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any service; or (c) Threatening, coercing, or restraining Car Carriers, Inc., Ford Motor Corporation, Hertz Corporation, or any other person engaged in commerce or in an industry of the Act. Charging Party Allied Security, Incorporated (Chicago), is an Illinois corporation which maintains its principal place of business in Oak Park, Illinois, where it is engaged in providing contract security guard service. During the past calendar year, a representative period, it has purchased and shipped goods and services from Illinois to points and places located outside the State of Illinois. Accordingly. it is an employer engaged in commerce within the meaning of Sec. 2(5) of the Act. The Respondent is a labor organization within the meaning of Sec. 2(5) of the Act. 3 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. 353 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affecting commerce, where in either case, as set forth in paragraphs (b) and (c) hereof, an object thereof is forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of Allied Security, Incorporated (Chicago), or forcing or requiring Allied Security, Incorporated (Chicago), to recognize or bargain with the Respondent as the representative of its employees, unless Respondent has been certified as the representative of such employees under the provisions of Section 9 of the Act. (d) Picketing or threatening to picket Allied Security, Incorporated (Chicago), where an object thereof is to force or require Allied Security, Incorporated (Chicago), to recognize or bargain with the Respondent as the represen- tative of guards employed by Allied Security, Incorporated (Chicago), or forcing or requiring employees of Allied Security, Incorporated (Chicago), to select the Respondent as their collective-bargaining agent, when Respondent has not been certified as the representative of such employees and cannot be so certified by virtue of the provisions of Section 9(b)(3) of the Act. 2. Take the following affirmative action designed to effectuate the purposes and policies of the Act: (a) Send to Allied Security, Incorporated (Chicago), a letter containing the following text and signed by Respon- dent's General Counsel: This is to advise you that the General Service Employees Union, Local No. 73, affiliated with Service Employees International Union, AFL-CIO, does not In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a have any interest in organizing your employees, or in being recognized by you as the representative of your employees, or in obtaining or negotiating with you a labor agreement covering your employees. (b) Refrain from picketing or threatening to picket Allied Security, Incorporated (Chicago), in any manner whatsoev- er for a period of 30 days from the receipt by Allied Security, Incorporated (Chicago), of the letter referred to in paragraph (a) hereof. (c) Post at its office and meeting hall in Chicago, Illinois, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by its authorized representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, including all places where notices to members are customarily placed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Deliver to the Regional Director for Region 13 signed copies of said notice for posting by Andy Frain, Inc., and Allied Security, Incorporated (Chicago), if they are willing, at all locations where said employers normally post notices to their employees. (e) Notify the Regional Director for Region 13, in writing, within twenty days from the date of this Order, what steps the Respondent has taken to comply herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 354