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

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 82 (N.L.R.B. 1988)

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 ]