Service Employees Local 9 (United Artists)

SERVICE EMPLOYEES LOCAL 9 (UNITED ARTISTS) 685 Theatre and Amusement Janitors Union Local 9, Service Employees International Union, AFL- CIO and United Artists Communications, Inc. Cases 20-CP-830, 20-CP-860-2, and 20-CC- 2718 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 26 July 1984 Administrative Law Judge James S. Jenson issued the attached decision. The Respondent filed exceptions. 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 Respondent's exceptions and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Theatre and Amusement Janitors Union, Local 9, Service Em- ployees International Union, AFL-CIO, its offi- cers, agents, and representatives, shall take the action set forth in the Order. DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge. These cases were heard in San Francisco, California, on May 14, 1984, pursuant to charges filed by the Union in Case 20-CP-830 on May 11, 1983,' in Case 20-CP-860-2 on December 9, and in 20-CC-2718 on December 12, and complaints which issued on May 17, 1983, January 6 and January 13, 1984, respectively. 2 All three cases have been consolidated for hearing. Answers were filed to each of the complaints; however, counsel for Respondent did not appear at the hearing. Prior to the hearing the General Counsel was informed by counsel for Respond- ent that the Respondent might not send a representative to the hearing. After the opening of the hearing, and prior to the presentation of any evidence, the General Counsel made unsuccessful telephonic efforts to commu- nicate with Respondent's counsel. All parties were given full opportunity to appear, to Introduce evidence, to ex- amine and cross-examine witnesses, and to file briefs. A 1 All dates are in 1983 unless stated otherwise. 2 The complaint in Case 20-CP-830 was withdrawn on September 22 following the execution and approval of a settlement agreement On the Respondent's failure to discharge its obligations under the agreement, the approval of the settlement agreement was withdrawn and the complaint reinstated on January 6, 1984 brief was filed by the General Counsel and has been carefully considered. On the entire record, including the General Counsel's brief, and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION The evidence established that United Artists Commu- nications, Inc. (UA) is engaged in the operation of movie theatres and the exhibition of motion pictures throughout the United States, with its headquarters office located in San Francisco, California For the fiscal year ending August 31, UA's gross revenues exceeded $500,000, and it purchased and received in California goods valued in excess of $50,000 directly from points outside California. It is found that UA is an employer engaged in commerce and in a business affecting comnierce within the meaning of Section 2(1), (2), (6), and (7) and Section 8(b)(4) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and found that Theatre and Amusement Janitors Union, Local 9, Service Employees International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting The Respondent was the collective-bargaining repre- sentative of all janitors employed by UA at its theatres in San Francisco for an undisclosed period of time, the most recent agreement having expired on July 31, 1981. The parties having unsuccessfully bargained for a succes- sor agreement, the Respondent instituted an economic strike and picketing activity which began on September 29, 1981. UA hired permanent striker replacements and continued to operate during the strike. B. Case 20-CP-830 Pursuant to a petition filed in Case 20-RM-2437, the Regional Director for Region 20 issued a Decision and Direction of Election dated December 17, 1982, direct- ing an election among the janitors employed by UA at its Coliseum, Balboa, Stonestown Twin, Vogue, Metro, Coronet, and Alexandria theatres in San Francisco. On April 27, following the Respondent's withdrawal of ob- jections to the election, the Regional Director issued a Certification of Results of Election to the effect that the Respondent was no longer the exclusive representative of the employees in the unit. Nevertheless, the Respond- ent continued picketing several of the UA theatres. Prior to May 3, the picket signs displayed at the employer's theatres identified the theatre as "on strike" followed by the Respondent's name. From May 3 until May 20, the signs read "United Artists Theatres—To Patrons Only— Please Do Not Patronize—Cleaning Done Under Sub- standard Conditions—Theatre Janitors Local 9-AFL- CIO." From May 20 until June 3, the picket signs read 272 NLRB No. 107 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Name of Theatre)—Employs Non Union Janitors—Do Not Patronize—Cleaning Done Under Sub standard Conditions—Theatre and Amusement Janitors—SEIU Local 9—AFL-CIO On May 24 the Coronet Theatre had a benefit premiere Approximately 40 individuals picketed with a variety of signs including The Coronet Theatre Employs Non union Janitors—Unfair—Do Not Patronize—Cleaning Done Under Sub Standard Condi tions Theatre and Amusement Janitors SEIU Local 9 AFL-CIO Boycott UA Crush Union Busters With Mass Pickets and 602 Days—Enough—Stop On June 3 pursuant to Section 10(1) of the Act the United States District Court for the Northern District of Cali forma issued a temporary injunction enjoining the Re spondent from picketing UA s theatres Accordingly picketing of Respondent s existing theatres ended as of that date The General Counsel alleges that an object of the picketing was to force or require UA to recognize or bargain with the Respondent as the representative of its janitorial employees C Case 20-CP-860-2 UA commenced construction of a new theatre in 1983 on a site in San Francisco bordered on the north by Sutter Street on the west by Van Ness Avenue and on the south by Hemlock Street a one way alley The thea tre was scheduled to be opened on December 14 and was to be known as the Galaxy The general contractor on the job was Perini Corporation On November 30 Stan Smith a representative of the San Francisco Build ing and Construction Trades Council called Robert Naify UA s president Naify referred the call to Larry Levin UA s general manager Smith told Levin that he wanted to set up a meeting between Levin himself and George Hardy Respondent s recording secretary in order to try and avert a strike at the Galaxy construction site Accordingly on December 1 those three and an un identified individual met in Levin s office Hardy stated that the strike had lasted for three years and it was about time that we got together and sat down and nego hated a contract Smith stated that he hoped that we could work this out because he did not want to have his building construction people have to honor a picket line two weeks before Christmas Levin responded that he would have to talk to his principals 3 before he could negotiate Levin agreed to call Smith with an answer as soon as possible On December 5 and again on Decem ber 8 Levin informed Smith that he had been unable to contact either Syufy or Naify and asked for more time to do so On a later date Smith responded that if some thing wasn t accomplished soon that Local 9 would have to put up pickets because they would soon lose any bargaining potential Levin made another unsuc cessful effort to talk to Naify and Syufy and upon so ad vising Smith of the fact later that day was told that Local 9 would be picketing the next morning 4 3 Referring to Naify of UA and Syufy of Syufy Theatres 4 UA had not hired any Janitors for the Galaxy since it was not yet completed The Respondent commenced picketing the Galaxy construction site the morning of December 9 and contin ued through December 10 with a variety of picket signs reading (Name of Theatre)5 Theatre Employees Non Union Janitors UNFAIR Do Not Patronize Cleaning Done Under Sub Standard Conditions Theatre and Amusement Janitors SEIU Local 9 AFL-CIO Charles Kaplan Perini s project manager testified that on arriving at the jobsite that morning he asked a picket if a union business representative were present The picket pointed to Sal Roselli Kaplan asked Roselli why the Union was picketing Roselli told Kaplan that any questions about picketing would have to be made to Stan Smith of the San Francisco Building and Construction Trades Council and gave him the phone number Kaplan then called Rose Perini s attorney who initiated a conference call to Smith with Kaplan also on the line Rose asked Smith why the jobsite was being picketed and was told it was sanctioned by the Building and Con struction Trades Council Asked to remove the pickets Smith responded that he couldn t do so and said Why don t you call Robert Naify since he is responsible for having the pickets there in the first place Kaplan also informed Smith that all of the janitorial work that had been done on the jobsite had been performed by Amen can Building Maintenance whose employees were repre sented by locals of the SEIU 6 On December 11 through December 14 the pickets used signs which read GALAXY—UNFAIR The evening of December 14 the scheduled date for the Gal axy s opening over 100 pickets appeared In addition to displaying the above described picket signs the pickets handed out leaflets announcing the Respondent s success in postponing the opening of the Galaxy for 3 weeks 7 thanking the public for its support and proposing a boy cott of UA and Syufy theatres D Case 20-CC-2718 The afternoon of December 11 a reserve gate system was set up at the Galaxy construction site The Hemlock Street entrance designated as Gate A was established for the sole and exclusive use of UA employees and its suppliers The sign posted at the gate read 5 Separate signs listed one of the following four theatres Galaxy Coll scum Cinema 21 and Empire The latter two are owned by Syufy Enter prises a competitor of UA 6 The record establishes and I find that at all times matenal herein Sal Rosen' George Hardy and Stan Smith officials and/or spokesmen for Respondent were agents of Respondent within the meaning of Sec 2(13) of the Act 7 The Galaxy did not open until February 1984 SERVICE EMPLOYEES LOCAL 9 (UNITED ARTISTS) 687 THIS GATE RESERVED EXCLUSIVELY FOR EMPLOYEES AND SUPPLIERS OF UNITED ARTISTS COMMUNICATIONS ALL OTHER PERSONS MUST USE THE GATE LOCATED ON SUTTER STREET The Sutter Street entrance, designated as Gate B, was es- tablished for the exclusive use of Perini and its subcon- tractors. The sign read: THIS GATE RESERVED EXCLUSIVELY FOR EMPLOYEES AND SUPPLIERS OF PERINI CORPORATION AND ALL OTHER EMPLOYERS OTHER THAN UNITED ARTISTS COMM. UNITED ARTISTS COMMUNICATIONS MUST USE THE GATE LOCATED ON HEMLOCK STREET A guard was placed on each entrance to ensure that the instructions on the signs were adhered to. Also, Per- ini's superintendent verbally informed the pickets at the jobsite of the establishment of the dual gate system and that it would be unlawful for them to picket the Sutter Street entrance. On December 12, a third entrance was established on Van Ness Avenue for the exclusive use of employees and suppliers of Perini and employers other than UA. The Respondent was advised by telegram dated December 10 of the establishment of the two re- served gates and their wording, and by telegram dated December 12 of the addition of the Van Ness Avenue re- serve gate. There is no evidence that the integrity of the reserve gate system was breached at any time. The evi- dence shows that despite the establishment of the reserve gate system, picketing continued at both the Sutter Street and Van Ness Avenue gates and that employees employed by Perini's subcontractors refused to work as a consequence. Discussion A. Case 20-CP-830 Section 8(b)(7)(B) of the Act provides that It shall be an unfair labor practice for a labor or- ganization or its agent . to picket or cause to be picketed, or threaten to picket or cause to be picket- ed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employ- ees of an employer to accept or select such labor organization as their collective bargaining represent- ative, unless such labor organization is currently certified as the representative of such employees . . . where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted. . . . There has been no showing that the February 4 elec- tion was not valid under Section 9(c) of the Act. Conse- quently, it is found that the election was valid and that the Respondent is not currently certified as the collec- tive-bargaining representative of Respondent's janitorial employees. Thus, the issue is whether an object of the picketing of UA's theatres following the election was to force or require UA to recognize or bargain with the Respondent. An unlawful object, when not admitted, must be ascertained from a respondent's overall conduct, which includes the past relations between the parties as well as the context in which picketing has occurred. In this regard it is noted that the Respondent has never dis- claimed an interest in representing UA's janitorial em- ployees; the strike and picketing which commenced in September 1981 continued uninterruptedly until enjoined by the United States District Court on June 3; the ab- sence of a hiatus in picketing following the issuance of the certification of results of the election; references to "substandard conditions" and "nonunion janitors" on the picket signs in use between May 3 and June 3; and the picketing of the Coronet Theatre on May 24, are all fac- tors indicating unlawful picketing in that the Respond- ent's object was to force or require UA to bargain with it within 12 months of a valid election. Accordingly, I find that Respondent's picketing of UA theatres from May 3 through June 3, within a year of a valid election had a statutorily proscribed object and violated Section 8(b)(7)(B) of the Act. San Diego Typographical Union 221, 264 NLRB 874 (1982); Electrical Workers Local 953, 154 NLRB 1301 (1965). B. Case 20-CP-860-2 The picketing of the Galaxy Theatre from December 9 through December 14 was also within 12 months of the issuance on April 27 of the Certification of Results of the Election, and prior to the Galaxy's opening The object of the picketing, i.e., to force or require UA to recognize or bargain with the Respondent, is clear. On November 30, Smith informed Levin that a meeting with Hardy was necessary in order to avert a strike at the Galaxy. When Levin met with Smith and Hardy on December 1, Hardy stated that the 3-year strike had gone on long enough and that they should meet and negotiate a con- tract, and Smith stated he hoped the two could resolve the matter so that the construction workers wouldn't have to honor a picket line so close to Christmas. When Levin informed Smith on December 8 that he had been unable to contact the president of UA regarding negotia- tions, Smith stated that Respondent would begin picket- ing the next day, which it did. The picket signs displayed on December 9 and 10 and those displayed on December 11 through 14, and the handbills utilized in the mass picketing of the Galaxy the evening of December 14, all 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are indicative of the Respondent s bargaining objective In these circumstances it is found that the picketing from December 9 through December 14 within a year of a valid election was for a proscribed object and vio lated Section 8(b)(7)(B) of the Act C Case 20-CC-2718 Section 8(b)(4)(1) and (n)(B) of the Act was enacted to preserve the right of labor organizations to bring pres sure to bear on offending employers in primary labor dis putes and at the same time to shield unoffending em ployers and others from pressures in controversies not their own NLRB v Denver Building Council 341 U S 675 692 (1951) Generally speaking picketing that occurs at the primary employer s premises and seeks only to disrupt its normal operations is considered pri mary activity and thus protected while picketing that extends beyond the primary employer s premises to the neutral employer s premises and seeks also to disrupt the latter s operations is considered secondary activity and thus prohibited Where the primary employer and the neutral employer perform their work at the same site the Board and the courts require the Union to accommodate the neutral employer s right to remain immune from the full impact of the labor dispute by making every reasona ble effort to limit to the primary employer the induce ments and restraints that are inherent in common situs picketing As an aid in drawing the line between lawful and proscribed common situs picketing the Board in Sailors Union (Moore Dry Dock) 92 NLRB 547 (1950) developed criteria that have been summarized by the Su preme Court as follows (Electrical Workers Local 761 (General Electric) v NLRB 366 U S at 677) (1) that the picketing be limited to times when the situs of dispute was located on the secondary prem ises (2) that the primary employer be engaged in his normal business at the situs (3) that the picket ing take place reasonably close to the situs and (4) that the picketing clearly discloses that the dispute was only with the primary employer It is well settled that under the third element of the Moore Dry Dock test employers may by the use of sepa rate gates for the purpose of [the primary employer s] in gress to and egress from the job site lawfully force the union to picket only those separate gates Plumbers Local 519 v NLRB 416 F 2d 1120 1125 (DC Cir 1969) See also Carpenters Local 470 v NLRB 564 F 2d 1360 1362 (9th Cir. 1977) Iron Workers Local 433 v NLRB 598 F 2d 1154 1156 (9th Cir 1979) Markwell & Hartz Inc v NLRB 387 F 2d 79 (5th Cir 1967) cert denied 391 U S 914 (1968) When separate reserve gates are properly established and used by neutral employers performing work unrelated to the normal operations of the primary employer the union must absent unusual circumstances not present here avoid extending its ap peals to those jobsite access points used only by neutral employers and their employees Thus picketing that ex tends beyond the gate established for the primary em ployer and its employees and reaches the gate reserved for the employees of neutral employers on the jobsite is strongly indicative of a secondary proscribed object Ramey Construction Co v Painters Local 544 472 F 2d 1127 1131 (5th Cir 1973) Accord Carpenters Local 470 v NLRB supra It is clear from the undisputed facts that a proper re serve gate system was established at the Galaxy con struction site and that the Respondent was notified and had knowledge of the purpose of the dual gate system Application of the above principles to the facts requires a finding that by picketing the neutral gates on Decem ber 11 and thereafter Respondent violated Section 8(b)(4)(1) and (n)(B) of the Act On the foregoing findings of fact and on the entire record I make the following CONCLUSIONS OF LAW 1 United Artists Communications Inc is an employer engaged in commerce and in a business affecting com merce within the meaning of Section 2(1) (2) (6) and (7) and Section 8(b)(4) and (7) of the Act 2 Respondent is a labor organization within the mean ing of Section 2(5) of the Act 3 All janitors employed by UA at its Coliseum Balboa Stonestown Twin Vogue Metro Coronet and Alexandria Theatres in San Francisco California exclud ing confidential employees guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 of the Act 4 A valid election was held on February 4 within the appropriate unit 5 On April 27 pursuant to Section 9 of the Act the Regional Director on behalf of the Board duly certified that no labor organization had been selected as the col lective bargaining representative of UA s employees 6 By picketing from May 3 through June 3 and from December 9 through December 14 Respondent engaged in unfair labor practices within the meaning of Section 8(b)(7)(B) of the Act 7 By picketing at reserved Gates B at the Galaxy Theatre construction site on December 11 12 13 and 14 Respondent engaged in an unfair labor practice within the meaning of Section 8(b)(4)(i) and (n)(B) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed 8 8 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses SERVICE EMPLOYEES LOCAL 9 (UNITED ARTISTS) 689 ORDER The Respondent Theatre and Amusement Janitors Union Local 9 Service Employees International Union AFL-CIO San Francisco California its officers agents and representatives shall I Cease and desist from (a) Picketing or causing to be picketed or threatening to picket for a period of 1 year from December 149 United Artists Communications Inc where an object thereof is to force or require United Artists Communica lions Inc to recognize or bargain collectively with the Respondent Theatre and Amusement Janitors Union Local 9 Service Employees International Union AFL- CIO or to force or require the employees of United Art ists Communications Inc to accept or select the Re spondent as their collective bargaining representative (b) Picketing causing to be picketed or threatening to picket United Artists Communications Inc for any of the above mentioned objects where within the preceding 12 months a valid election under Section 9(c) of the Act has been conducted which Respondent did not win (c) Inducing or encouraging individuals employed by Perini Corporation D & J Electric Horton Drywall American Building Maintenance Linford Air Condition mg Service Metal Marconi Plastering Tile West Loper Sheet Metal or any other employer engaged in corn merce or in an industry affecting commerce to engage in a strike or refusal in the course of their employment to perform services or threatening restraining or coercing the above listed employers or any other employers en gaged in commerce or in an industry affecting corn merce where in either case an object thereof is to force or require Perini Corporation to cease doing business with United Artists Communications Inc 2 Take the following affirmative action designed to ef fectuate the policies of the Act (a) Post at its business office and meeting halls copies of the attached notice marked Appendix " Copies of said notice on forms provided by the Regional Director for Region 20 after being signed by Respondent s au thonzed representative shall be posted by Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to members are customarily posted Rea sonable steps shall be taken by Respondent to ensure that said notices are not altered defaced or covered by any other material (b) Furnish the Regional Director with signed copies of said notice for posting by Perini Corporation D & J Electic Horton Drywall American Building Mainte nance Linford Air Conditioning Service Metal Marconi Plastering Tile West and Loper Sheet Metal if willing at all places where notices to employees are customarily posted 9 See Electrical Workers Local 953 154 NLRB 1301 fn 5(1965) 10 If this Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the Na tonal Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and we intend to carry out the order of the Board WE WILL NOT picket or cause to be picketed or threaten to picket United Artists Communications Inc for a period of 1 year from the date of the cessation of our picketing at United Artists Communications Inc s theatres in San Francisco California which has been found by the National Labor Relations Board to be un lawful where an object thereof is to force or require United Artists Communications Inc to recognize or bargain collectively with us or to force or require the employees of United Artists Communications Inc to accept or select us as their collective bargaining repre sentative WE WILL NOT picket cause to be picketed or threaten to picket United Artists Communications Inc for any of the above mentioned objects where within the preceding 12 months a valid election under Section 9(c) of the Act has been conducted and we did not win WE WILL NOT in any manner prohibited by Section 8(b)(4)(B) of the National Labor Relations Act engage in or induce or encourage employees of the following named employers or persons or any other employer or person engaged in commerce or in an industry affecting commerce to engage in a strike or refusal in the course of their employment to perform services and WE WILL NOT threaten restrain or coerce the following named employers or persons or any other employer or person engaged in commerce or in an industry affecting corn merce where in either case an object thereof is to force or require Perini Corporation to cease doing business with United Artists Communications Inc Perini Corporation D & J Electric Horton Drywall American Building Maintenance Linford Air Conditioning Service Metal Marconi Plastering Tile West Loper Sheet Metal THEATRE AND AMUSEMENT JANITORS UNION LOCAL 9 SERVICE EMPLOYEES INTERNATIONAL UNION AFL-CIO