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UNITED STATES MAINTENANCE CORP. v. SEIU

November 18, 1974

United States Maintenance Corporation, Plaintiff
v.
Service Employees International Union, Local 82, AFL-CIO, Defendant


Gesell, District Judge.


The opinion of the court was delivered by: GESELL

GESELL, District Judges.

 United States Maintenance Corporation (hereafter "Maintenance") sues Service Employees International Union, Local 82, AFL-CIO (hereafter "Local 82") for damages, claiming that it was injured in its business by reason of an unfair labor practice. Jurisdiction exists under Section 303 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 187. The particular unfair labor practice is defined under Section 8(b)(4)(ii) (B), which states in relevant part as follows:

 
(b) It shall be an unfair labor practice for a labor organization or its agents (4) (ii) to threaten, coerce or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is (B) forcing or requiring any person to . . . cease doing business with any other person . . . .

 More specifically, Maintenance claims that Local 82 threatened Gustave Ring, who owns and operates two buildings covered by a labor contract with Local 82, with a strike, an object of which was to force Ring to cease doing business with Maintenance. Local 82 denies any liability on both factual and legal grounds, as will appear. The matter was tried to the Court without a jury and the following constitutes the Court's findings of fact and conclusions of law.

 Local 82 entered into a three-year agreement with Ring dated September 8, 1971. The agreement contained an arbitration clause and an explicit undertaking not to strike or picket during the term of the agreement. Under the provisions of the contract (paragraph 17), Ring undertook not to subcontract the work covered by the agreement without ten-day notice to the Local and agreed that any subcontract must provide that employees of the subcontractor "shall be paid wages at least equal to the wages provided for in the agreement." Local 82 represented maintenance employees such as maids, janitors and elevator operators, and the contract treated two buildings owned by Ring as a package.

 Beginning in January, 1974, Ring commenced consideration of subcontracting the work, believing that the quality of the maintenance in his buildings and its cost required a change. Local 82 gave the required 90-day notice in June of 1974 that it wished to negotiate a new contract when the existing contract expired in September and Ring, on July 3, gave ten-day notice that he intended to subcontract all the work, except elevator operators, to Maintenance as of August 1, 1974. In response, the Local requested a meeting and one was held at the Local's convenience on July 16, but in the meantime, on July 13, the work was actually subcontracted by Ring to Maintenance. On July 16, representatives of Ring and the Local met. The testimony conflicts as to what occurred at this crucial meeting. It is clear that Local 82 considered Maintenance as a substandard, non-unionized concern and objected vigorously to the subcontract on the ground that Maintenance would not maintain the standard of hourly pay, vacation and sick leave benefits that were in the contract. Whether Maintenance in fact intended to pay at a rate in accordance with the contract is in dispute. *fn1" However, it is clear from the entirely credible testimony of the President of Local 82, Ms. Neal, that at the time of the crucial July 16 meeting she and the other members of the Union's negotiating team reasonably believed, based on conversations with Maintenance's employees on other jobs, that Maintenance's general practice was to pay substandard wages. By his own admission, Ring's representative, Mr. Cook, did nothing to correct this impression at the July 16 meeting, stating that he didn't know what Maintenance was going to pay and didn't care since that was entirely between Maintenance and its employees.

 Cook claims that Local 82 representatives said that Maintenance was not fair and that the Local would picket Ring's buildings to "punish" Ring for using Maintenance. Local 82 denies this assertion and the Court finds that no threat in this form was made. On the basis of the preponderance of the evidence, it appears that Local 82's representatives emphatically stated that they would establish an "informational" picket line no matter to whom Ring subcontracted the work if the subcontractor failed to pay wage rates and provide working conditions consistent with the existing wage scale at the buildings. Ring's representatives were concerned that a picket line would be set up. Ring himself did not want any picketing or union trouble and for this reason cancelled the subcontract after consultation with Maintenance. He was entitled to do this under a 30-day cancellation clause of the subcontract.

 Maintenance contends that an object of the threatened picketing was to force Ring, as he eventually did, to cease doing business with Maintenance. In support of this contention, evidence was introduced establishing that the Local had lost its agreement with Maintenance in 1970 and had been trying, although somewhat sporadically, over a period of time again to organize Maintenance. At the meeting there was no threat to picket any of the other approximately 50 buildings where Maintenance was performing work and it is also clear that Local 82 made no effort to invoke its arbitration rights under the contract against Ring for any alleged breach of the subcontracting provisions. Maintenance also attempted to show that Local 82 failed to object to a subsequent subcontract made by Ring with a firm known as Gotham Building Maintenance, another non-union maintenance contractor, who was put in place without the ten-day notification required under the agreement. But this latter circumstance must be discounted because the present suit and other legal proceedings were by then already under way. Although the National Labor Relations Board Regional Office dismissed the complaint of Maintenance claiming a secondary boycott violation, the issue is again tendered in this proceeding.

 Local 82 argues that its sole intention was to engage in "informational" picketing, cf. NLRB v. Fruit Packers Local 760 (Tree Fruits), 377 U.S. 58, 84 S. Ct. 1063, 12 L. Ed. 2d 129 (1963); compare 29 U.S.C. § 158(b) (4), second proviso, with 29 U.S.C. § 158(b) (7) (C), second proviso; and points to the signs it had printed but never used, which read as follows:

 
United States Maintenance Corporation
 
UNFAIR
 
Does Not Provide
 
S.E.I.U. Local 82, ...

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