Service Employees Union, Local 87, Service Employees International Union, Afl-Cio

82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Service Employees Union, Local 87, Service Employ ees International Union, AFL-CIO and West Bay Building Maintenance Case 20-CC-3037 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 3 1988 Administrative Law Judge David G Heilbrun issued the attached decision The Charging Party filed exceptions and a support ing brief the General Counsel filed limited excep tions and a supporting brief and the Respondent filed an answering brief in support of the judge s decision The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings and conclusions only to the extent consistent with this Decision and Order Contrary to the judge we find that the Respond ent violated Section 8(b)(4)(B) of the Act We agree with the judge that The Sharper Image (TSI) and West Bay Building Maintenance (West Bay) the employer with whom Service Employees Union Local 87 the Respondent has a primary labor dispute were not joint employers under the Act and thus the picketing at the TSI facility manifested an unlawful secondary object violative of Section 8(b)(4)(i) and (ii)(B) of the Act i The judge erred however by failing to find that the Respondent was responsible for the picketing We find merit in the General Counsels conten tion that the judge failed to make a proper analysis of the common law principles of agency The judge erroneously assumed that as a threshold matter there must be evidence of overt union in volvement establishing that the Respondent initiat ed the picketing or that an official of the Respond ent was present at the picket line (or otherwise en dorsed the picketing) in order to establish an agency relationship between the Respondent and the picketers As will be discussed below agency may be established in several ways and under either the principles of apparent authority and/or ratification there is ample evidence that the Re spondent is liable for the picketers conduct in this matter We note that no exceptions were filed with regard to the judge s finding that the picketing did not met several Moore Dry Dock standards Sailors Union (Moore Dry Dock) 92 NLRB 547 (1950) The facts are largely uncontroverted On July 23 1987 2 TSI advised West Bay that the latter would be the cleaning contractor at TSI s San Francisco headquarters complex replacing a union ized contractor Picketing began that day outside TSI s facility and continued for a week The pick ets carried commercially preprinted picket signs that included the following legend UNFAIR LOCAL 87 SERVICE EMPLOYEES INT UNION AFL-CIO West Bay s name was also handwritten in a space above the preprinted legend William Miranda sales representative of West Bay testified that on various occasions he saw between 8 to 10 picketers carrying those signs and that they had an addi tional 20 to 30 signs on the floor On July 23 and 24 West Bay s attorney had separate letters ad dressed to Graham Martinez and Ray Jacobs hand delivered to the Respondents office The letters advised that the picketing was taking place at an entrance not used by West Bay and when West Bay was not present In its brief the Respondent claims there is noth ing in the record to suggest that it ever received those communications and indicated that Local 87 does not even employ individuals who have those names The judge however found and we agree that receipt of these letters could be inferred and that the Respondents latest LM 2 report filed for calendar year 1986 with the Office of Labor Man agement Standards U S Department of Labor re vealed Wray Jacobs to be president of the labor or ganization while B Martinez was listed as a busi ness agent There is no evidence that the Respond ent took any action in response to these letters Section 2(13) of the Act provides that In determining whether any person is acting as an agent of another person so as to make such other person responsible for his acts the question of whether the spec fic acts per formed were actually authorized or subse quently ratified shall not be controlling Under this standard for establishing agency we are satisfied that the General Counsel was warranted in relying both on the doctrine of apparent authority and on ratification Apparent authority is created through a manifes tation by the principal to a third party that supplies a reasonable basis for the latter to believe that the 2 All dates are in 1987 unless otherwise indicated 291 NLRB No 11 SERVICE EMPLOYEES LOCAL 87 (WEST BAY MAINTENANCE) principal has authorized the alleged agent to do the acts in question NLRB v Donkin s Inn 532 F 2d 138 141 (9th Cir 1976) Alliance Rubber Co 286 NLRB 645 646 fn 4 (1987) Thus either the prim cipal must intend to cause the third person to be lieve that the agent is authorized to act for him or the principal should realize that this conduct is likely to create such belief Restatement 2d Agency § 27 (1958 Comment) Two conditions, therefore must be satisfied before apparent authority is deemed created (1) there must be some manifesta tion by the principal to a third party and (2) the third party must believe that the extent of the au thonty granted to the agent encompasses the con templated activity Id at § 8 On the other hand, ratification is defined as the affirmance by a person of a prior act that did not bind him but which was done or professedly done on his account whereby the act, as to some or all persons is given effect as if originally authorized by him Id at § 82 Section 83 defines affirm ance as either (a) a manifestation of an election by one on whose account an unauthorized act has been done to treat the act as authorized or (b) con duct by him justifiable only if there were such an election Finally Section 94 states that [a]n affirm ance of an unauthorized transaction can be inferred from a failure to repudiate it Applying the above principles to the instant case under the doctrine of apparent authority, we find that the Respondent is responsible for the picketing even in the absence of any specific evidence that it initiated or actually authorized the picketing The individual picketers carried Local 87 preprinted picket signs for 7 consecutive days having in their possession 30 or more such signs Furthermore the judge found and we agree that there is ample reason to believe that picket signs of such a settled character would be within the exclusive control of Respondent As found by the judge the Respond ent was notified that such picketing was taking place but took no steps effectively to disassociate itself from the picketing From all this the Re spondent should have known that the conduct of the pickets would likely create the belief that they were authorized to act on behalf of the Respond ent Also it was reasonable for TSI and West Bay and the employees customers and suppliers of TSI to believe that the acts of the pickets were attnbut able to the Respondent Clearly the judge ignored the principle that an agent will be deemed to have apparent authority where the principal knows or should know that the acts of the agent will lead 83 third parties to believe that the agent has been au thonzed 3 In addition to being responsible for the conduct of the pickets under the theory of apparent author ity the Respondents inaction on notification con stituted ratification of the picketing In factual cir cumstances similar to this case a union s liability was determined by its 'knowledge that like here picketing was occurring with its picket signs and the union s failure to take sufficient steps to repudi ate the illegal secondary picketing thus"establishing the consent necessary for ratification Teamsters Local 85 (San Francisco Newspaper) 191 NLRB 107 (1971), enfd mem 82 LRRM 2847 (9th Cir 1972) 4 In the instant case after two formal protests from West Bay the Respondent made no efforts to repudiate the picketing The Respondent did not disavow the picketing in any communication to the neutral or any other entity or person The Re spondent did not retrieve the picket signs bearing its name Nor is there evidence that union repre sentatives made an attempt to have the pickets return the signs or that they made an attempt to tape over or conceal the Respondents name on the picket signs Finally there is no evidence that the 9 Although not necessary to our conclusion that the Respondent is liable under the theory of apparent authority for the conduct of the stnk ers we note that officers of the Respondent on two previous occasions involving different jobsites threatened to picket West Bay if it entered into contracts to perform janitorial services for other employers In early May TSI s Miranda received a call from a person identifying herself as June Quan an agent of the Respondent telling Miranda that she was going to put picketers up in front of the building and do everything possible to make West Bay drop its contract at another San Francisco building Miranda further testified about another call on July 1 3 weeks before the picketing commenced at TSI in which Martinez threatened to picket if West Bay started work that night at yet another location The judge credited Miranda s uncontroverted testimony and found that the hreats were appropriate factors to be considered yet found that the tele phone conversation with Quan lacked authentication by Miranda and the second conversation with Martinez lacked sufficient foundation With re spect to the call from Quan the Respondents LM 2 annual report lists J Quan as a business agent of the Respondent Therefore the sub stance of the conversation supports a finding that the caller was Quan The judge s conclusion with respect to the second telephone conversation is parti,ularly misleading because the circumstances surrounding that call are even more compelling than the first call Miranda placed the call to the Respondents office specifically requesting to speak with Martinez thus establishing sufficient foundation that it was in fact Martinez the business agent of the Respondent listed on the LM 2 filed by the Re spondent Martinez did not testify in this proceeding Basic rules of evi dence support the General Counsels claim that the Respondent was re sponsible for these threats which corroborate other evidence indicative of th Respondent s liability for the picket line 4 The judge conced d that Teamsters Local 85 contained certain paral lei dynamics to the instant case but distinguished it on the grounds that in the instant matter no authoritative officials of Respondent ventured from its offices to the situs nor from the weight of the evidence endorsed the picketing Again we find the judge would erroneously require evi dente of this nature in order to establish any type of agency relationship The fact that the union in Teamsters signaled its members to respect the picket line served only to rebut the union s assertion that its efforts to retrieve the picket signs were proof that it had not adopted the actions of the pickets i 84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent reported any theft of its signs to the police Therefore as in Teamsters where similar preprinted picket signs were used , it is reasonable to infer that the Respondent did not wish to oblit erate all reference to its identity from the picket signs The Respondent did not even take the token action the union took in Teamsters to cur tall the use of its name on its preprinted picket signs Thus the Respondents failure to repudiate or divorce itself from the picketing implied that it supported and ratified the picketing 5 In light of the foregoing we find the Respondent responsible for the picketing and that, consequent ly, it violated the Act as alleged in the complaint CONCLUSIONS OF LAW 1 The picketing of The Sharper Image on July 23 to 31 1987 induced or encouraged individuals employed by The Sharper Image and those of its suppliers or other persons engaged in commerce or in an industry affecting commerce to cease work 2 An object of such picketing was to force or require The Sharper Image a neutral, to cease doing business with West Bay 3 Service Employees Union, Local 87, Service Employees International Union AFL-CIO is re sponsible for the picketing and, therefore has en gaged in unfair labor practices in violation of Sec tion 8(b)(4)(i) and (11)(B) of the Act 4 The unfair labor practices found above affect commerce within the meaning of the Act THE REMEDY In order to effectuate the policies of the Act the Respondent shall be ordered to cease and desist from the unfair labor practices found above 6 ORDER The Respondent Service Employees Union Local 87 Service Employees International Union AFL-CIO San Francisco California its officers agents, and representatives shall 1 Cease and desist from engaging in, or inducing or encouraging any individual employed by The Sharper Image, its suppliers, 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 such individuals employment to use manufacture, process, transport or otherwise handle or work on any goods articles, materials or commodities or to perform any services, or to 5 Member Johansen agrees that the Respondent ratified the picketing and therefore finds it unnecessary to rely on the apparent authority of the pickets i 6 The General Counsels request for a visitatorial clause is denied Cherokee Marine Terminal 287 NLRB 1080 (1988) threaten coerce or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require The Sharper Image or any other person to cease doing business with West Bay Building Main tenance 2 Take the following affirmative action neces sary to effectuate the polices of the Act (a) Post in its business offices, meeting hall hiring halls, and other places where notices to members are customarily posted by the Respond ent copies of the attached notice marked Appen dix ' Copies of the notice on forms provided by the Regional Director for Region 20, after being signed by the Respondents authorized representa tive shall be posted by the Respondent immediate ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (b) Deliver to the Regional Director signed copies of the notice in sufficient number for posting by The Sharper Image if it so agrees, at places where it customarily posts notices to its employees (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 7 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al 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 APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT engage in or induce or encourage any individual employed by The Sharper Image its suppliers or any other person engaged in coin merce or in an industry affecting commerce to engage in a strike or a refusal in the course of such individuals employment to use, manufacture, proc ess transport or otherwise handle or work on any goods articles materials or commodities or to perform any services or threaten coerce or re strain any person in commerce or in an industry of SERVICE EMPLOYEES LOCAL 87 (WEST BAY MAINTENANCE) fecting commerce where in either case an object thereof is to force or require The Sharper Image or any other person to cease doing business with West Bay Building Maintenance SERVICE EMPLOYEES UNION LOCAL 87 SERVICE EMPLOYEES INTERNA TIONAL UNION AFL-CIO Margaret M Dietz for the General Counseb Paul Supton Esq (Van Bourg Weinberg Roger Rosen feld) of San Francisco California for the Respondent Scott D Rechtschaffen Esq (Littler Mendelson Fastiff & Tichy) of San Francisco California for the Charging Party DECISION STATEMENT OF THE CASE DAVID G HEILBRUN Administrative Law Judge This case was tried at San Francisco California 6 October 1987 The charge was filed by West Bay Building Main tenance (West Bay) on 24 July 1987 and complaint issued on 31 July 1987 The primary issue is whether Service Employees Union Local 87 Service Employees International Union AFL-CIO (Respondent) engaged in conduct with the object of forcing or requiring The Sharper Image (TSI) to cease doing business with West Bay and/or to force or require the customers and suppli ers of TSI and other persons engaged in commerce or in an industry affecting commerce to cease doing business with TSI in order to force or require TSI to cease dong business with West Bay this all allegedly in violation of Section 8(b)(4)(i) and (ii)(B) of the Act On the entire record including my observation of the demeanor of the witnesses and after consideration of the briefs filed by the General Counsel and the Charging Party i I make the following FINDINGS OF FACT I JURISDICTION TSI is a Delaware corporation with its corporate mar keting and telemarketing offices located at 650 Davis Street in San Francisco California where it has been engaged in the retail sale of specialty consumer goods During the fiscal year ending 31 January 1987 TSI in the course and conduct of its business operations de rived gross revenues in excess of $500 000 while selling products goods and materials valued in excess of $5000 to customers located outside the State of California The Respondent admits and I find that TSI is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Respondent is a labor organs zation within the meaning of Section 2(5) of the Act 1 The Respondent elected not to present evidence at the conclusion of the General Counsel s case contending instead in its oral summation of record that she had not made out a prima facie case in all truth The record was also augmented by the General Counsels own oral summa tion and her short response to Respondents closing argument II ALLEGED UNFAIR LABOR PRACTICES 85 A Summary of Events TSI maintains its executive headquarters 24 hour tele marketing activity and a retail store at consecutively ad joining addresses on Davis Street near San Francisco s fi nancial distract Around late May 1987 it proposed to modify the custodial services previously provided exclu sively by its lessor Initially this modification contem plated that West Bay provide scheduled but occasional services beyond those regularly supplied by the lessor s contractor Able Building Maintenance Company (ABM) 2 In early July TSI actually implemented supple mentary custodial services by West Bay Then late that month roughly coextensive with lease renewal negotia tions West Bay totally supplanted ABM with TSI ob taining a credit for relieving the lessor of this obligation under the new lease On 23 July TSI informally advised West Bay that it had been fully commissioned as cleaning contractor for the premises and picketing began On this and succeeding 6 weekdays numerous pickets were present for several hours of midday a timespan during which no persons were present on behalf of West Bay at the site Picketing ceased on issuance of the com plaint in this matter B Basis of Analysis An original 4 year lease between TSI and the Golden Gateway Center covered only the 650 Davis Street loca tion and obligated the lessor to provide TSI with basic janitorial services Subsequent to this beginning TSI ac quired the added leased space that now adjoins but in the process had to assume responsibility for new custodi al needs at addresses actually distinguished as 660 (tele marketing) and 680 (retail store) Davis Street The pro vider of such services overall both as a lessor responsi bility and directly to TSI was ABM When renewal negotiations of 1987 for lease of the entire facility occurred TSI voiced its growing dissatis faction with the services of ABM Consequently the eventual renewal lease deleted the lessor s previous obli gation to provide janitorial coverage after July Concur rently TSI had taken steps to secure an alternative source of such services After one false start at supplant ing ABM with West Bay effective 1 June TSI initially fell back on only testing West Bays performance by a single carpet spot cleaning during June West Bay does not directly employ janitorial person nel but instead engages subcontractors to service its own customers This was true even with the single spot clean ing of June Based on the continuing negotiations be tween TSI and West Bay a specific set of special serv ices on Saturdays was awarded by letter dated 3 July This was soon informally enlarged to include Wednesday evening work each week doing carpet cleaning The first day of such special services was to be on 4 July necessary keys were provided West Bay and asso ciated instructions were for custodial personnel to enter 2 All dates are in 1987 unless otherwise indicated 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD via the rear building access address of 455 Embarcadero Except for the actual first day of special services the ar rival time of custodial personnel was to be 6 p in The general consequence of so awarding was that ABM con tinued through July with lessor obligated janitorial serv ices at 650 Davis Street and directly for TSI at the other two addresses all on a Monday through Friday schedule only West Bay covered where business was conducted on Saturdays plus performing any additional service that might be agreeably arranged between it and TSI during this transitional month There were no instances before 1 August in which West Bay s subcontractors had stored any cleaning materials or equipment on the premises before or after the actual times of work Throughout July the various bids proposals and re finements were progressively discussed between TSI and West Bay This resulted in issuance of a letter dated 23 July from TSI Facilities Coordinator David Wood bury to West Bay s sales representative William Miran da in confirmation of an embodied comprehensive list of daily Saturday and special services to be performed by West Bay effective 1 August on a month to month basis The letter also contained additional miscellaneous items that related to the arrangement including an allot ed hour of custodial service in the personnel office each weekday 7 30 to 8 30 a in Shortly after West Bay s per formance of all custodial service actually began Wood bury refined some of the expected details and re emphasize[d] desired results by a brace of letters to Mi randa dated 3 and 4 August Morning service in TSI s personnel office did not actually begin until 5 August Meanwhile the appearance of pickets around 10 30 a in on 23 July had resulted in a chain of reporting from the posted security guard to TSI s corporate purchasing manager Sandra Humphrey and on to Miranda The ob served number of pickets on the 7 days involved ranged from a grouping of 8 or 10 to a surge up to 20 or 25 Reportedly the participants would appear around 10 a m and disperse by 3 p in The picketing was known to be confined to outer sidewalk areas immediately in front of 650 and 660 Davis Street The uniform legend of nu merous picket signs prominently labeled West Bay as unfair to Respondent On 23 July TSI s legal counsel caused hand delivery of a letter addressed to Mr Graham Martinez and Mr Ray Jacobs at Respondents San Francisco office address This letter asserted that the picketing reportedly underway constitute [d] a clear violation of the National Labor Relations Act The letter contained a passage to the effect that West Bay is currently performing no janitorial work at 650 Davis Street On 24 July TSI s counsel wrote again to Jacobs and Martinez in much the same vein stating this time however that building maintenance contractors and subcontractors perform work only at night and enter the building through an en trance located at 455 Embarcadero The letter dated 24 July was hand delivered by legal messenger Jeffrey De vault to Respondents office where after inquiring for Martinez and Jabobs he left the letter with two gentle men behind the counter Devault testified that they had agreed to see that it would reach the addressees Miranda made daily observations of the picketing and testified that of the picketers present he recognized only Oscar Gamboa Miranda understood from unrelated deal ings 3 or 4 years back that Gamboa was a member of Respondent at that time and employed by ABM Addi tionally Miranda testified that while inside the premises about 4 30 p in on 27 July he noticed a working janitor who was previously among the pickets Humphrey ob served at irregular times and took photographs of the scene on 25 July She did not personally know any pick ets nor recognize even one as a contemporary employee of ABM Respondents latest LM 2 annual report was filed for calendar year 1986 on 28 May with the Office of Labor Management Standards U S Department of Labor It reveals Wray Jacobs to be president of the labor organs zation while B Martinez and J Quan are listed as bust ness agents Respondents office is shown by the report as Room 101 240 Golden Gate Avenue San Francisco Miranda testified that in May a person identifying her self as June Quan had telephoned him in connection with a freshly started custodial contract at 177 Post Street in San Francisco He recalled that the caller stated she would picket in front of the building and do everything possible to make West Bay drop the contract Miranda also testified that in connection with another contract for evening custodial service at 731 Market Street in San Francisco he spoke with a person believed by him to be named Brandon or Graham Martinez on the first day of scheduled performance in early July The conversation resulted when Miranda telephoned to Martinez after that property manager notified him by pager of a picketing threat When so reached Martinez assertedly questioned West Bay s emergence for the job and prophesied prob lems C Contentions The General Counsel and the Charging Party each argue that an unlawful secondary objective is apparent from the described picketing The composite of their contentions involves the commonly structured raising of Moore Dry Dock3 standards These are set out as so often so 4 to constitute several criteria that if not met in any instance raises a presumption that common situs picketing is directed against a primary employer with whom no dispute exists and not actually toward the sec ondary employe- with whom a dispute does exist Such conditions comprising the Moore Dry Dock rule are as follows (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary em ployer s premises (b) At the time of the picketing the primary em ployer 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 9 Sailers Union (Moore Dry Dock) 92 NLRB 547 (1950) 4 See Service Employees Local 87 (Pacific Telephone) 279 NLRB 168 (1986) Electrical Workers IBEW Local 211 (Atlantic County Authority) z77 NLRB 1041 (1985) SERVICE EMPLOYEES LOCAL 87 (WEST BAY MAINTENANCE) 87 (d) The picketing discloses clearly that the dis pute is with the primary employer It is contended by the General Counsel and the Charging Party that the first second and third elements of the test are not met and from this the totality of Respondent s conduct compels an inference that an objective of en meshing a neutral in the dispute has been established These parties also argue separately that Respondent s persistent effort to show TSI and West Bay as a joint employer has utterly failed For its part Respondent contended chiefly that any complained of conduct cannot be attributed to it as an entity and that applicable principles of agency law fail to show that this accused labor organization committed any illegal acts Respondents counsel asserted that not withstanding all else picketing at this jobsite was pnvi leged because the degree of control retained by TSI over manner and means of performance by West Bay constituted the two companies as a joint employer Final ly Respondent contends that West Bay s protests were so loosely rooted in truth as to render picketing activity permissible under a totality of circumstances test pro nounced by the court in Constar v Plumbers Local 447 748 F 2d 520 (9th Cir 1984) for determining whether unions show unlawful intent in such situations D Analysis I am satisfied this case is decidable on the agency issue The General Counsel anticipated this defense and cites Davlan Engineering 283 NLRB 803 (1987) as an thonty for finding the requisite agency status in this case In Davlan the Board revisited fundamental principles of agency law as applying to unions Section 13 of the Act provides that In determining whether any person is acting as an agent of another person so as to make such other person responsible for his acts the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be con trolling The opinion in Davlan sets out language contained in Re statement 2d Agency § 3(2) (1958) defining a special agent as one authorized to conduct a single transaction or a series of transactions not involving continuity of service The condition can apse when a union permits or acquiesces in conduct and by such respective action or inaction creates the limited purpose relation ship There is simply insufficient evidence here to show that Respondent created this or any type of agency rela tionship No official of Respondent was ever present at the picket line nor is there evidence that activity was initiated by Respondent in regard to any shadowing it maintained over West Bay See Alliance Rubber Co 286 NLRB 645 (1987) In a more comparable fact situation the General Counsel also advances Teamsters Local 85 191 NLRB 107 (1971) on a key point of whether Respondent tell ingly acquiesced in the described activity While Team sters Local 85 contains certain parallel dynamics to hap penings here there are pointed contrasts too There had been major metropolitan disruption wrought by that picketing and the accused union had signaled its mem bers to respect the line while providing comforts to the picketers The case must be distinguished from these cir cumstances because no authoritative official of Respond ent ventured from its offices to the situs nor from the weight of evidence endorsed the picketing The fact that Gamboa was once and arguably remains a union member does not necessarily connect his picket ing activity to Respondent Plainly West Bay made an immediate formal protest to Respondent the receipt of which must be inferred however these written commit nications assume a predicate that does not exist namely some overt or incriminating fact that pins origination of the picketing on Respondent The routine picket signs naming Respondent as the victim of an unfair employ er and Miranda s testimony that he was twice warned about being a nonunion janitorial business are appropri ate factors to consider but singly or in the totality of events do not alter a fundamental lack of proof on the issue There is ample reason to believe that picket signs of such a settled character would be within the exclusive control of Respondent yet this assumption is weakened when no overt union involvement at or in connection with the scene has been proven As to telephone conver sations the earlier one with Quan lacks authentication by Miranda and surrounding circumstances are not persua sive enough to make it significant Iron Workers Local 433 (United Steel) 280 NLRB 1325 (1986) The second contact one in which Miranda was the caller is of prob lematical foundation as to the person named Marti-iez yet even giving this episode a light most favorable to the General Counsel it was fleeting inconclusive and gen erally inadequate to salvage what is otherwise a failure to sustain the required burden of proof The argument that Respondent did not disclaim daily picketing is ap pealing 5 but it is simply insufficient to say that a union must be held to such a standard of swift inquiry when there is no preliminary showing that it had generated the unwelcome conduct See Avis Rent A Car System 280 NLRB 580 (1986) I thus hold that Respondent has not violated the Act as alleged in th s complaint On other issues I find that a joint employer relation ship between TSI and West Bay has not been shown Respondent points only to communications in which the client makes clear its desired quality of service but in no meaningful way involves itself in task performance de tails as these are commonly termed the means of ac complishment On the contrary both TSI and West Bay had an array of functionaries and it is only in this con text that they respectively set standards and assured satis faction Cf Electrical Workers IBEW Local 2208 (Simplex Wire) 285 NLRB 834 (1987) Finally were it material to co so I hold that picketing shown here did not meet several Moore Dry Dock stand ards and would have been found as of unlawful intent There was a clear description of the absence of West 8 The Charging Party s brief cites Dogherra v Safeway Stores 679 F 2d 1293 (1982) however this case does not address a notion of disclaiming the dispute by a union 88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bay from the situs during the midday timespan and the fact that any effectiveness intended to impact West Bay alone would require a presence at the stated rear en trance of 455 Embarcadero Similarly there was no at tempt to engage in Saturday picketing when TSI as least at its 650 Davis Street headquarters was not normally engaged in business CONCLUSIONS OF LAW I The Sharper Image is an employer engaged in com merce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act 2 Service Employees Union Local 87 Service Em ployees International Union AFL-CIO is a labor organs zation within the meaning of Section 2(5) of the Act 3 Service Employees Union Local 87 Service Em ployees International Union AFL-CIO did not commit the unfair labor practices alleged in this complaint [Recommended Order omitted from publication ]