University Cleaning Co.

National Labor Relations Board - Board Decisions

Mar 1, 1965

151 N.L.R.B. 341 (N.L.R.B. 1965)

UNIVERSITY CLEANING CO. 341
bargaining with the Union, did not represent any change in the terms and conditions
of employment of Respondent's maintenance employees.
Moreover, the right of Respondent to contract out occasional maintenance work
without notice to or bargaining with the Union appears to be sanctioned by the
collective-bargaining agreement which was in effect when the maintenance work in
issue was subcontracted. Not only did the said agreement contain no provision
prohibiting or limiting subcontracting by Respondent, but it did contain a broad
management-rights clause, reserving exclusively to the Respondent the right to
change its "methods or processes ... to determine the extent to which the plants
shall be operated," and to transfer employees subject only to such factors as seniority.
In cases involving the same issue presented herein, the Board has held that similar
management-rights clauses in collective-bargaming agreements establish the employ-
er's "managerial perogative" unilaterally to make changes of work assignments in
the bargaining unit and to subcontract unit work without transgressing the bargain-
ing requirements of the Act, when no substantial impairment of the bargaining unit
results 22
Accordingly, for all the foregoing reasons and the lack of impact on unit employ-
ment, it is concluded that the Respondent did not violate Section 8(a) (5) of the
Act by unilaterally contracting out the maintenance unit work in issue herein. It
will therefore be recommended that the complaint herein be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent, The Fafnir Bearing Company, is engaged in commerce and
in operations affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union, International Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, Local No. 133, UAW, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. At all times material herein, the Union has been the representative for the
purposes of collective bargaining of a majority of the employees in the following
unit which is appropriate for such purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees of Respondent employed at its New
Britain and Newington, Connecticut, plants including setup men, but excluding super-
intendents, foremen and assistant foremen, supervisors, instructors, office and cler-
ical employees, office executives, engineers, office workers and shop clerks, time-
keepers, mailmen, chauffeurs, production clerks, dratsmen, shop engineers and shop
technicians, plant protection employees, nurses and first-aid employees, firemen, and
also excluding all tool makers, diemakers, and apprentices, machinists and machin-
ists' helpers employed in departments 61, N61, J61, and 74 together with all other
employees now in those four departments consisting of tool hardeners, cribmen,
stampcutters, errand boys, inspectors, sweepers, grinders, and spindlemen, as well as
those similarly classified workers employed in department 65.
4. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (5) or (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is rec-
ommended than an order issue dismissing the complaint in its entirety.
=General Motors Corporation (Buick Motor Division Parts Warehouse), 149 NLRB
40; Kennecott Copper Corporation (Chino Mines Division), 148 NLRB 1653, Shell Oil
Company, 149 NLRB 283.
Local 254, Building Service Employees International Union, AFL-
CIO and Herbert Kletjian , d/b/a University Cleaning Co.
Case No. 1-CC-361. March 1, 1965
DECISION AND ORDER
On September 16, 1963, Trial Examiner Harold X. Summers
issued his Decision in the above-entitled proceeding, finding that
151 NLRB No. 32.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in and was engaging in certain unfair
labor practices within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Decision. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices as alleged
in the complaint and recommended that they be dismissed. There-
after, the Respondent and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs.
The National Labor Relations Board has reviewed the rulings
of the Trial Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
The Board has considered the entire record in this case, including
the Decision and the exceptions and briefs, and hereby adopts
the findings, conclusions, and recommendations of the Trial Exam-
iner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts
as its Order the Order recommended by the Trial Examiner, and
orders that Respondent Local 254, Building Service Employees
International Union, AFL-CIO, its officers, agents, and representa-
tives, shall take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
This case was heard upon the complaint 1 of the General Counsel of the National
Labor Relations Board, herein called the Board, alleging that Local 254, Building
Service Employees International Union, AFL-CIO, herein called Respondent, had
engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and
(ii)(B) of the National Labor Relations Act, as amended, herein called the Act.
Respondent's answer to the complaint admitted some of the allegations of the com-
plaint and denied others; in effect, it denied the commission of any unfair labor
practices. Pursuant to notice, a hearing was held before Trial Examiner Harold X.
Summers at Boston, Massachusetts, on July 15 and 16, 1963. All parties were
afforded full opportunity to examine and cross-examine witnesses, to argue orally,
and to submit briefs. Briefs filed by the General Counsel and by Respondent have
been fully considered.
Upon the entire record in the case, including my evaluation of the witnesses based
upon the evidence and my observation of their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Charging Party, Herbert Kletjian, is a private individual who is and has been
doing business under the trade name and style of University Cleaning Co ,2 an
individual proprietorship which will hereinafter be called University. University,
whose principal office and place of business is located at Cambridge, Massachusetts,
acts as a so-called contract cleaner, furnishing cleaning and other janitorial services to
i The complaint was issued June 7, 1963. The charge initiating the proceeding was
filed April 25, 1963.
2 This case is hereby amended to show the correct name of the Charging Party.
UNIVERSITY CLEANING CO. 343
various customers in Boston, Massachusetts, and vicinity. In the course and conduct
of its operations, it renders services valued in excess of $50,000 annually to
General Electric Company, whose Lynn, Massachusetts, plant itself ships goods to
points outside the Commonwealth of Massachusetts valued in excess of $50,000
annually and receives goods from points outside the Commonwealth of Massachusetts
valued in excess of $50,000 annually.
Contrary to the contention of Respondent, I find that University is an employer
engaged in commerce within the meaning of the Act:; And since, as found infra,
University is the primary employer in the labor dispute involved herein, I find that
the Board has jurisdiction over this matter .4
H. THE UNION
Respondent is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
University's present operation has been in existence since 1950. Since 1954, its
sole office-warehouse has been located in two adjoining stores at 59-61 River Street
in Cambridge.
Working from the River Street location, University dispatches employees-about
40 in number-to various buildings, stores, and other locations in and about the city
of Boston, there to sweep, mop, dust, and perform other janitorial duties. Most of
this work, but not all, is performed outside the regular business hours of the customer,5
and the normal practice of University's employees is to report directly to the location
at which their work is to be performed. Only about 40 percent of the employees
have occasion, in the course of their employment, to report to the River Street address,
and then only for limited periods of time; 6 the rest may voluntarily and informally
stop there, but such occurrences are rare.?
Respondent was recognized by University as bargaining agent for its employees in
1957.8 Thereafter, Respondent and University entered into a series of collective-
bargaining contracts, the most recent of which expired, by its terms, on May 30, 1962.
B. The primary dispute
Both before and after the expiration of the last collective-bargaining contract
between University and Respondent in May 1962, their representatives met to discuss
the terms of a new agreement. (Herbert Kletjian represented University and Eldridge
Buffum, Respondent's director of organization, was the main representative for
Respondent.) They had at least seven meetings, either at the office of one Thompson,
University's labor counsel, or at the offices of the Massachusetts Board of Arbitration
and Conciliation. The last meeting was held at the latter location in December 1962.
Negotiations broke down on University's rejection of Respondent's demands for the
deletion of a so-called "20-hour" clauses and for a shortened period of effectivity.is
The parties did not meet after December 1962.11 In March 1963 negotiations
8 Sxemons Mailing Service, 122 NLRB 81, 85
4 Truck Drivers Local Union No. 649, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL (Jamestown Builders Exchange, Inc.),
93 NLRB 386, 387.
6 There is an indication In this record that a number of University ' s employees have
employment elsewhere during the day.
O For example, a "strip crew"-a group of floor washers and waxers-will regularly
report at River Street to travel by company truck to and from their workplace of the
moment.
7 Some go there to pick up paychecks ; but, if they wish, paychecks will be delivered
to them on job locations.
8 No Board proceeding was involved
9 University's first contract with Respondent had excluded from coverage by the union-
security clause those employees who worked less than 15 hours per week for Univer-
sity. In the contract which expired in May 1962, the measure was increased to 20 hours.
IU The suggested termination date was in March 1963.
ii Unfair labor practice charges were filed by Respondent during the interim period,
one with the Board and one with the Commonwealth of Massachusetts
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between Respondent and a newly formed association of contract cleaners (of which
University was not a member ) resulted in a master agreement which was followed
in individual contracts executed between Respondent and various contract cleaners.
Subsequent to the fashioning of the master agreement-and this involved three or
four telephone conversations-Buffum , referring to the master agreement , suggested
to Kletjian that they meet to see if they could not "get together ." Kletjian referred
Buffum to Attorney Thompson , who declined to meet with Respondent on the ground
that Respondent no longer represented a majority of University 's employees.12
In its answer herein , Respondent denied that it was engaged in a labor dispute with
University . At the hearing , counsel was permitted to amend the answer to change it
in this respect, and it was stipulated that Respondent was engaged in a primary labor
dispute with University . Whatever doubts may have been subsequently reraised by
Respondent Business Agent Sullivan 's testimony that Respondent no longer had
contractual differences with University , had no contract relationship with University,
and had "written off" negotiations with University some 9 months earlier, were
dispelled by his testimony that there was an "undissolved " [sic; unresolved] dispute
with University over its refusal to bargain for all its employees . At any rate , the facts
earlier recited herein establish , and I find, that-whether the point of disagreement
be University 's failure to come to terms with Respondent , its refusal to bargain for
all employees , its refusal to bargain at all, or some combination of these factors-
there was , at all times relevant herein , an existing labor dispute between Respondent
and University.
C. Secondary conduct
1. Preliminary facts
In mid -March 1963 , Edward T. Sullivan , secretary , treasurer , and business agent of
Respondent , having discussed the matter with Eldridge Buffum , director of organiza-
tion, and Sam Kofman , organizer , 13 decided the "University situation " had reached
a point at which some action was necessary. At or about the early part of April, he
requested and received authorization from Respondent 's executive board to commence
picketing when he deemed it appropriate . Thereupon, he decided to wait for favor-
able weather.
2. The involvement of United Airlines
United Airlines, herein called United,14 during at least the past 2 years, has utilized
the cleaning services of University at three of its locations in Boston : a sales and
reservation office at 156 Stewart Street , a ticket office at the Statler-Hilton Hotel, and
a ticket office at 8 Federal Street. Each location is cleaned on all operating days,15
the work being performed after the close of the regular business day.16
Late in March 1963 Kofman visited the Stewart Street office. The secretary to
United's district sales manager , Arthur Fairbanks , referred him to W. M. Duggan,
reservations chief. Kofman informed Duggan that United was using cleaning people
who were not union members. He asked if United was satisfied with its cleaning
contractor, to which Duggan answered in the affirmative When Duggan pointed out
that these matters were taken care of out of United's Chicago office , Kofman asked
that that office be apprised of the situation 17
During the last week in March, Buffum visited Stewart Street and spoke to
Daniel Sudbring , assistant district sales manager for United . Introducing himself, he
12 The findings in the above two paragraphs are based upon Kletjian ' s credited testi-
mony ( which is uncontradicted in any relevant respect ), as supplemented by the credited
testimony of Respondent 's witnesses Buffum and Sullivan
"I find that , at all times relevant , Sullivan , Buffum, and Kofman were responsible
agents of Respondent.
14 The complaint alleges that United, a common carrier engaged in air transportation,
annually performs services consisting of the interstate transportation of passengers and
freight valued in excess of $50 , 000 The answer admits , and I find , that United is an
employer engaged in commerce within the meaning of the Act.
Is Seven days per week at Stewart Street , 6 days at the Statler-Hilton , and 5 days at
Federal Street
19 One man does all the work at Stewart Street ; another cleans both the Statler -Hilton
and the Federal Street offices.
17 The findings in this and the six paragraphs next following-all concerned with
prepicketing conversations-constitute an amalgam of the testimony of witnesses Sud-
bring, Duggan , Campbell , Buffum , and Kofman Although they differed in minor respects,
all were, in my opinion, credible witnesses.
UNIVERSITY CLEANING CO. 345
asked if Sudbring was aware that United's cleaning contractor did not employ union
members, and he asked for permission to speak to the cleaner who (after business
hours) worked at Stewart Street. Permission was granted.
On April 10, Kofman went to the ticket office at the Statler-Hilton, where he spoke
to John Campbell, chief of ticket sales. He asked if Campbell was aware that the
person who cleaned the office was nonunion and that the cleaning firm was nonunion.
Campbell said that he was not.
One week later, Kofman returned to the Statler-Hilton office. He asked Campbell
if the latter had learned anything more about the subject of their previous conversa-
tion. When Campbell said that he had not, Kofman commented that Campbell
"would not like to see pickets in front of [United's] ticket office." At this point, it
was suggested that Kofman see Assistant District Manager Sudbring.
A few minutes later, on the same day (April 17), Kofman went to Stewart Street,
where he spoke with Sudbring. First referring to Sudbring's March conversation with
Buffum, reported above, Kofman said that the Local (Respondent) now had authority
to picket United. Sudbring asked when the picketing would start, but Kofman was
unable to tell him; and a meeting with higher United management was arranged
for next day.
Next day, the 18th, Buffum and Kofman met with Fairbanks, the district sales
manager, and Sudbring. Buffum, speaking for Respondent, pointed out that Uni-
versity was undermining the wage rates in the industry, was committing unfair labor
practices, and, in general, was destroying Respondent's public image. Fairbanks
asked what he would like United to do. When Buffum suggested that they hire a
cleaner who was a union employee, Fairbanks said that the matter had been brought
to the attention of United's Chicago (main) office but that no reply had been received
from that office; and that, meanwhile, since United was satisfied with University's
service, there would be no change. He added that he felt Respondent's quarrel was
with University, not with United. At this, Buffum pointed out that United's places
of business would be picketed; he commented that this "would not please" United, a
comment with which Fairbanks expressed full agreement.
On April 23, Buffum telephoned the Stewart Street office. Fairbanks and Sudbring
being unavailable, he spoke to Duggan. He said he had been waiting for a Mr.
Thompson,18 who was supposed to "come in and clarify the situation"; that Thompson
had not appeared; and that, consequently, there would be a picket line at United
next 19 day.
On April 24, picketing commenced at two of United's three Boston offices. At
approximately 9 a.m. on that day, two men were brought to the Statler-Hilton loca-
tion; immediately, they began to pace back and forth on the sidewalk before the ticket
office with signs bearing the legend, "The contract cleaners employed here are not
members of Local, 254, AFL-CIO." Shortly thereafter, two pickets carrying identical
signs appeared at Federal Street.
The picketing continued for approximately 2 weeks. During the period, a regular
pattern was followed. An automobile would first deliver the Statler-Hilton pickets,
then the Federal Street pickets. The former picketed from approximately 9 a.m. to
4.30 p.m., the latter from shortly after 9 a.m. to between 4 and 4:30 p in., in each
case only on days during which the respective offices were open for business. Thus,
none of University's employees actually performed work for United while picketing
was going on.
As indicated, the picketing at the Statler-Hilton was performed on the sidewalk in
front of the office. Along this front wall, there is a doorway to the office leading
onto the street, but, because of a long-standing practice based upon weather considera-
tions, this doorway has been locked during certain seasons of the year, including all
times relevant hereto; and entrance to and exit from the office was accomplished
through a doorway leading from the ticket office to the Statler-Hilton Hotel corridor,20
the entrance to which was not picketed. In other words. customers and employees of
United could and did have access to the ticket office by way of three entrances to the
hotel without the necessity of physically crossing a picket line. Only those who might
use the street entrance to the office 21 would be required to cross the line. At the
18 Presumably University's attorney
19 The record shows that the promised picketing would take place "at noonday."
(Page 33, line 21.) My recollection, and independent evidence herein, indicate that the
expression used by the witness was "next day." The record is hereby corrected
accordingly
20 This was one of three corridors leading from different public streets to the hotel lobby.
"'Very occasionally-for example, when the need to transfer bulky luggage called
for it-the street door would be unlocked for a one-time usage.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federal Street ticket office, on the other hand, the picketing took place in front of
the sole entrance.22
The pickets at both places carried the signs earlier described. If asked a question
about the cause of picketing, the pickets would merely point to the signs. On the
basis of stipulations and other testimony in this record, I find that the pickets neither
passed out literature nor engaged in any conversations with customers or employees
of United. Nor is there any evidence of communication between Respondent and
United during the entire period of picketing.23
Without giving any notice or explanation to United, Respondent terminated its
picketing. Picketing ceased on May 7 or 8 at Federal Street, on May 9 at the
Statler-Hilton.
3. The involvement of A & P
The Great Atlantic & Pacific Tea Co., herein called A & P,24 operates a retail
grocery store at 168 Massachusetts Avenue, Boston, Massachusetts. Since this store
was opened, on June 6, 1962, University has furnished it with certain janitorial serv-
ices: Once every 3 weeks, after closing hours, a crew of three men wash and wax the
floors; and every Tuesday morning, during store operating hours, employees of Uni-
versity wash the windows.
Early in April 1963, Buffum had a telephone conversation with Elliott V. Martin,
A & P's divisional purchasing agent, among whose duties was the letting of contracts
for services to be furnished A & P's warehouse and stores. Buffum told Martin that
University, whose cleaning services were being utilized at the Massachusetts Avenue
store, was nonunion, that it was undermining conditions in the industry, and that it
was injuring the public image of Respondent. When he noted that permission had
been granted to picket University, Martin asked what this had to do with A & P.
Buffum said that some of A & P's stores might be involved in the picketing. Martin
questioned Respondent's right to picket A & P's stores, since "you have no fight with
us," to which Buffum replied, "We have permission to. I didn't say we were going
to, but we have permission to do it." 2 5
At one point before picketing actually began, Kofman attempted to communicate
with Martin, but his effort was unsuccessful.
At 9 a.m. on Monday, April 22, two pickets appeared in front of the Massachusetts
Avenue store. They carried signs identical with those used at United, described above.
They picketed the front, or customers', entrance on Massachusetts Avenue, but they
did not picket the side emergency exit or the delivery entrance facing another street.
There were pickets from 9 a.m. to 4:30 p.m. on Monday through Friday, and on
the following Monday, April 29. (The only employees of University who worked
while picketing was going on were two window washers, from 10 to 10:30 a.m. on
Tuesday, April 23.) On the 29th, without explanation, picketing ceased. During
the period of picketing, the pickets neither passed out any literature nor engaged in
conversations with customers, A & P employees, or delivery people; and, insofar as
this record reveals, no deliveries were affected.
4. Miscellaneous findings
Respondent at no time picketed University's premises at River Street in Cam-
bridge. Nor did it picket the premises of any other customers of University.
a1 The sales and reservation office at Stewart Street was never picketed. Here, the
entrance to the building was used by customers and employees of other firms, including
the employees of contract cleaners working for customers other than United.
z3 The General Counsel introduced evidence of contacts with United made during the
period of picketing by at least three cleaning contractors, competitors of University.
Each, in effect, sought the cleaning' business now enjoyed by University. The General
Counsel broadly insinuates that these contractors' actions should be imputed to Respond-
ent and should be construed as evidence of Respondents alleged objective-to cause
United to cease doing business with University Since an equally plausible explanation
would be that these contractors, realizing that United might be anxious to eliminate any
circumstance with which the picket line would concern itself, saw this as a possible way
to acquire a new customer, I do not regard this testimony as having any bearing upon
actions with which Respondent is charged.
u The Complaint alleges that A & P, engaged in the retail sale and distribution of food
and related products, annually purchases and receives goods and materials at points
inside the Commonwealth of Massachusetts from points outside the Commonwealth valued
in excess of $50,000, and has annual sales in excess of $500,000. The answer admits, and
I find, that A & P is an employer engaged in commerce within the meaning of the Act.
ze The findings in this paragraph are based upon the credited testimony of Martin, as
supplemented in pertinent part by Buffum.
UNIVERSITY CLEANING CO. 347
Pursuant to authority granted by Respondent's executive board, the decision to
picket United and A & P was made by Sullivan. The picketing was supervised by
Buffum, assisted by Kofman, and both of them actually participated in the picketing.
I find-and this is uncontroverted-that Respondent was responsible for the picketing.
The decision to terminate the picketing was made by Sullivan. The basis for the
decision: "We felt that everybody that we were interested in knew that University
cleaners was no longer under agreement with Local 254, specifically the major
purchasers of the contract cleaning services and the other contract cleaners in the
City of Boston."
5. Concluding findings
The General Counsel, in the complaint and arguments, contends that, by its conduct,
Respondent (i) engaged in, and induced or encouraged individuals employed by
United, A & P, and other persons engaged in commerce or in industries affecting com-
merce to engage in, strikes or refusals in the course of their employment to handle or
to work upon goods or to perform services, and (ii) threatened, restrained, and
coerced United, A & P, or such persons-all with an object of forcing or requiring
United, A & P, or such persons to cease doing business with University. Respondent,
in effect, urges that the picketing was not intended to induce, and did not induce,
employees to engage in strike action; that the prepicketing conversations between
Respondent's representatives and those of United and A & P, far from constituting
threats, coercion, or restraint, amounted to a "gentlemanly" advance notification of
what might-and in fact did-take place; that the picketing itself did not restrain or
coerce United or A & P; and that, rather than seeking to force or require United and
A & P to cease doing business with University, the sole objective of Respondent was
truthfully to inform the public that University did not employ union members-
nothing more.
Treating the issues formed by these contentions in inverse order, it is clear, and I
find, that an object of the picketing 26 was to force or require United, A & P, and "the
major purchasers of [University 's] contract cleaning services" to cease doing business
with University. Before the picketing began, Respondent's representatives suggested,
as recited above, that continued use of University's services might result in picketing,
a thinly veiled threat which Respondent's counsel himself urges was a forthright
prediction of things to come. A witness for Respondent 27 asked what the prepicket-
ing conversations with United representatives were intended to accomplish, consumed
pages of this record in what I considered to be unresponsive answers; I can under-
stand his problem for , as I see it, his only accurately responsive answer on these facts
would have been that United's sole "satisfactory" answer to Respondent would have
been a switch of contract cleaners.
This finding is reenforced by reference to the nature of the picketing. It was con-
fined to the premises of neutral employers.28 With a minor exception, it took place
when employees of the primary employer were not on the picketed premises, and the
signs did not clearly identify the employer with whom there was a dispute.29 And
neither United nor A & P was purveying to its customers-who might have been
inclined to respect a product boycott picket line-any goods or services furnished by
the primary employer.30
""The object specified need not be the sole object . N.L R.B . v. Denver Building and
Construction Trades Council, at al. (Gould & Preisner ), 341 U.S. 675, 689.27 Kofman
28 This is not to say that, under appropriate circumstances , Respondent could not have
picketed away from University' s "home" premises . International Brotherhood of Elec-
trical Workers, Local Union 861, at al (Plauche Electric, Inc.), 135 NLRB 250
29 Thus, in at least two respects, the picketing failed to conform to standards set up in
Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547.
80 Respondent 's reliance on Fruit and Vegetable Packers & Warehousemen , Local , 60,
et al. (Tree Fruits Labor Relations Committee, Inc) v. N.L R.B ., 308 F. 2d 311 (C.A.D.C.),
cert. granted June 10, 1963 , is misplaced In the first place , for reasons stated in
Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company
of America), 119 NLRB 768, 772, I am bound by the Board's decision therein, found at
132 NLRB 1@72. I note also that circuit courts themselves are in disagreement on this
point, see Samuel H Burr & Perfection Mattress & Spring Co., v. N.L R B , 321 F. 2d
612 (CA. 5). Finally, the instant case is relevantly distinguishable from Tree Fruits
in that there , as contrasted with this case, the union directed its energies toward
persuading customers not to buy a particular product originating from the primary
employer , making extraordinary efforts to insure that all other phases of the secondary
employers continued uninterrupted.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I reject Respondent's contention that its conversations leading to the picketing and
that the picketing itself did not restrain or coerce United and A & P. I•have intimated,
and I here find, that the prepicketing conversations between Respondent's repre-
sentatives and representatives of United and A & P constituted threats to picket;
attributing rationality to Respondent, I perceive no other, purpose in its (representa-
tives') repeated attributions of nonunionness to University, coupled with predictions
of picketing to come. As for the picketing itself, it would appear unnecessary at this
time again to set forth an analysis of congressional action, in the Landrum-Griffin
amendments, to close this particular "loophole," the result of which, inter alia, has
been held to ban consumer picketing 31 Furthermore, I here reaffirm a ruling I made
at the hearing-that the lack of adverse economic impact upon United or A & P is
not a defense herein.32
Whether the picket lines at United and A & P constituted inducement or encourage-
ment of employees to refuse to perform services, within the meaning of subsection (i)
of Section 8(b) (4), presents a more difficult problem. The General Counsel, in his
arguments, seems to assume that picketing amounting to restraint of an employer auto-
matically constitutes inducement or encouragement of employees. Respondent, on
the other hand, contends that there was neither inducement or encouragement nor
the intention to induce or encourage.
In its first decision on point following the 1959 amendments to the Act, the Board,
in effect, took the line now pressed by the•General Counsel. It held, in the Perfection
Mattress case,33 that all picketing of neutral establishments, such as retail stores, con-
stituted unlawful inducement or encouragement on -the theory that a picket line
necessarily invites employees to make common cause with the picketing union. This
doctrine was reversed a short time later, however, in the Minneapolis House Furnish-
ing case,34 a reversal which was followed by a reconsideration 35 of the Perfection
Mattress decision above referred to.36 It appears that, in each case, the determination
of the fact of inducement or encouragement of employees to strike depends on all the
surrounding circumstances.
We must begin, I believe, with the proposition that, generally speaking, a picket
line "necessarily invites employees to [make common cause with the strikers and]
refrain from working behind it irrespective of the literal appeal of the legends on the
picket signs," 37 and that "the foreseeable consequence, or stated differently, the
natural or probable result, of picketing at an entrance used in part by [secondary]
employees is to induce a strike." 38 Respondent here picketed entrances used partly
by secondary employees. The legend on the signs-which, I have previously found,
demonstrated the secondary nature of the picketing-did nothing to disabuse second-
ary employees of a desire that they make common cause with the pickets. Nor did
Respondent take affirmative steps, such as those found in the Minneapolis House
Furnishing and Perfection Mattress cases above referred to, to communicate, either
directly or indirectly, its desire (if one existed) that no employee refuse to cross or to
work behind these picket lines.
On the other hand, a number of factors are persuasive that there was no desire to
induce or to encourage employee stoppages. There was, in fact, no stoppage, a cir-
31 See the Board's analysis and holding in United Wholesale and Warehouse Employees,
Local 261, etc. (Perfection Mattress & Spring Company), 129 NLRB 1014, 1022-1023 (enfd.
as to this part in Samuel H. Burr & Perfection Mattress & Spring Co v. N.L.R B., supra)
and its reaffirmation in Upholsterers Frame & Bedding Workers Twin City Local 61, etc.
( Minneapolis House Furnishing Company), 132 NLRB 40, 43-45.
32 The Act does not require that a union's activity be successful to warrant an unfair
labor practice finding. N.L R B v. Associated Musicians, Local 802, AFL (Gotham
Broadcasting Corp. (Station WINS) ), 226 F 2d 900, 904-905 (C A. 2).
33 Sub nom . United Wholesale and Warehouse Employees , Local 261 , etc, 129 NLRB
1014, 1019-1021
34 Upholsterers Frame & Bedding Workers Twin City Local 61, etc (Minneapolis House
Furnishing Company), 132 NLRB 40, 41-42
35134 NLRB 931.
36 Upon review by the Fifth Circuit-cited in footnote 30, supra-this aspect of the
Board's decision was reversed Again, with due respect to the court, I am constrained
to follow Board precedent 0
37 Laundry, Linen Supply & Dry Cleaning Drivers Local No. 928, et al. (Southern
Service Company, Ltd.), 118 NLRB 1435, 1437, enfd. 262 F. 2d 617 (C.A 9).
33 United Wholesale and Warehouse Employees , Local 261, etc . ( Perfection Mattress
Spring Company), 125 NLRB 520.
UNIVERSITY CLEANING CO. 349
cumstance which brought no change in Respondent's tacties.39 Respondent spe-
cifically refrained from picketing the Statler-Hilton's hotel entrances, only through
which it might expect to "block" United employees there, and A & P's delivery
entrance, used by employees of other employers Finally, to the extent it picketed
entrances used by employees, it did not do so during their normal reporting and
leaving times.
On balance, I do not believe that it can be said that Respondent's picketing herein
either induced or encouraged, was intended to induce or encourage, or had the neces-
sary tendency to induce or encourage employees to refuse to perform services within
the meaning of Section 8(b) (4) (i) (B); 40 and I so find.
IV. THE REMEDY
Having found that Respondent has violated Section 8(b)(4)(ii)(B) of the Act, I
shall recommend that it be ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing factual findings and conclusions and upon the
entire record in the case, I come to the following:
CONCLUSIONS OF LAW
1. University, United, and A & P are employers engaged in commerce within the
meaning of Sections 2(6) and (7) and 8(b) (4) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
3. By threatening, coercing, and restraining United and A & P, with an object of
forcing or requiring them to cease doing business with University, Respondent has
engaged in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
5. Except for the above, Respondent has not engaged in unfair labor practices as
alleged in the complaint herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that Local 254, Building Service Employees
International Union, AFL-CIO, its officers, agents, successors, and assigns, shall:
1. Cease and desist from threatening, coercing, or restraining United Airlines, The
Great Atlantic & Pacific Tea Co., or any other person similarly engaged in commerce,
or in an industry affecting commerce, where an object thereof is to force or require
them to cease doing business with Herbert Kletjian, d/b/a University Cleaning Co.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Post in its business offices and meeting halls, copies of the attached notice
marked "Appendix." 41 Copies of such notice, to be furnished by the Regional
Director for Region 1, shall, after being duly signed by an authorized representative
of Respondent, be posted immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted. Reasonable steps shall be-
taken by Respondent to insure that such notices are not altered, defaced, or covered
by any other material.
'By this , I do not mean that Respondent 's "lack of success" in achieving its object
Is a good defense See footnote 32, supra. But I do consider of some significance is
determining the motivation for the actions in question, Respondent's reaction to the
results of its conduct.
40 I deem it unnecessary to decide here whether the result would have been the, same.
if, In fact, any secondary employees did engage in stoppages because of the picket lines
and Respondent; put on notice thereof, took no steps to change its course of conduct.
41 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of'
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Sign and mail copies of said notice to the Regional Director for Region 1 for
posting by United Airlines, if willing, at its ticket offices at the Statler-Hilton Hotel
and at 8 Federal Street, both in Boston, Massachusetts, and by The Great Atlantic &
Pacific Tea Co., if willing, at its retail store at 168 Massachusetts Avenue, Boston,
Massachusetts.
(c) Notify the Regional Director for Region 1, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to com-
ply herewith 42
It is further recommended that the complaint be dismissed insofar as it alleges that
Respondent engaged in, and induced or encouraged individuals employed by United,
A & P, or other persons engaged in commerce or in industries affecting commerce to
engage in, strikes or refusals in the course of their employment to use manufacture,
process, transport, or otherwise handle or work on goods, articles, materials, or com-
modities, or to perform services, with an object of forcing or requiring United, A & P,
or such other persons to cease doing business with University.
12 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 1, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 254, BUILDING SERVICE EMPLOYEES INTERNA-
TIONAL UNION, AFL-CIO, AND TO UNITED AIRLINES AND THE GREAT ATLANTIC &
PACIFIC TEA CO.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT threaten, restrain, or coerce United Airlines, The Great Atlantic
& Pacific Tea Co., or any other employer or person engaged in commerce or in
an industry affecting commerce, where an object thereof is to force or require
them to cease doing business with University Cleaning Co.
LOCAL 254, BUILDING SERVICE EMPLOYEES
INTERNATIONAL UNION, AFL-CIO,
Labor Organization.
Dated------------------- By--------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Telephone
No. 523-8100, if they have any question concerning this notice or compliance with its
provisions.
Local Union 124 of The International Brotherhood of Electrical
Workers, AFL-CIO and The Kansas City Star Company. Case
No. 17-CD-60. March 1, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed on July 22, 1964,
by The Kansas City Star Company, herein called the Employer,
alleging a violation of Section 8(b) (4) (ii) (D) by Local Union 124
of the International Brotherhood of Electical Workers, AFL-CIO,
herein called the IBEW or Electricians. Pursuant to notice, a
hearing was held on November 16, 17, and 18, 1964, at Kansas
151 NLRB No. 36.