Building Service Employees Union, Local 32-J

National Labor Relations Board - Board Decisions

Feb 7, 1962

135 N.L.R.B. 909 (N.L.R.B. 1962)

BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 909
Building Service Employees International Union , Local 32-J,
AFL-CIO and Terminal Barber Shops , Inc. Case No. 2-CC-
596. February 7, 1962
DECISION AND ORDER
On June 14, 1961, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report herein, finding that the Respondent engaged in un-
fair labor practices and recommending that it cease and desist there-
from and take affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record. The Board affirms the Trial Ex-
aminer's rulings and adopts his finding and conclusions.
ORDER
The Board adopts the Recommendations of the Trial Examiner
with the modification that provision 2(c) read: "Notify the Regional
Director for the Second Region, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply
herewith." 1
'In the notice attached to the Intermediate Report marked "Appendix ," the words
"Decision and Order " are hereby substituted for the words "The Recommendations of a
Trial Examiner ," and the following paragraph is added to the notice:
Employees may communicate directly with the Board 's Regional Office ( 745 Fifth
Avenue, New York 22, New York ; Telephone Number, PLaza 1-5500) if they have
any question concerning this notice or compliance with Its provisions.
In the event that this Order Is enforced by a decree of a United States Court of Appeals,
the words "Pursuant to a Decision of the United States Court of Appeals , Enforcing an
Order" shall be substituted for the words "Pursuant to a Decision and Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , in which all parties were represented by counsel, was heard
before Eugene F. Frey, the duly designated Trial Examiner , in New York, New
York, on various dates between February 7 and March 10, 1961, on complaint of
the General Counsel of the National Labor Relations Board , as amended, and
answer of Building Service Employees International Union, Local 32-J, AFL-CIO
(herein called Respondent or .the Union), as amended . At the close of the hearing,
General Counsel and Respondent made oral argument , but none of the parties have
filed briefs with the Trial Examiner . Motions of Respondent to dismiss the com-
plaint on various grounds, made during and at the close of the testimony, were
taken under advisement and are disposed of by the findings and conclusions below.'
1 On March 30, 1901 , the parties submitted to' the Trial Examiner by letters agreed
corrections of designation of certain formal exhibits Introduced by General Counsel, and
135 NLRB No. 73.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The main issues litigated were (1) the question of jurisdiction, and (2) whether
the Union violated Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations
Act, as amended, 29 U.S.C., Sec. 151, et seq. (herein called the Act), by picketing
two places of business operated in New York, New York, by Terminal Barber
Shops, Inc., the Charging Party herein (also called Terminal) and a subsidiary of
Terminal described below.
Upon the entire record, and from my observation of the witnesses on the stand,,
I make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THE EMPLOYERS INVOLVED
A. The Terminal enterprise
Terminal is a New York corporation, with its principal office and place of busi-
ness located in New York, where it is engaged in the operation of 16 barbershops,
furnishing barber and related services. Three of those shops, all in New York City,,
are involved in this case and are located at 120 Broadway (herein called the 120,
Broadway shop), in the Empire State Building at 350 Fifth Avenue (herein called;
the Empire State shop), and in the Time and Life Building, at 111 West 50th Street
(herein called the Time and Life shop). Terminal is the sole owner of all the
stock of the following subsidiary corporations:
(1) Charmode Beauty Salons, Inc., a New York corporation (herein, called'.
Charmode), which operates in New York City two barbershops in which it fur-
nishes barber and related services, and six beauty salons in which it furnishes hair-
dressing and related beauty services; the barbershops, which are involved herein, are
located in the Tishman Building at 666 Fifth Avenue (herein called the Tishman
shop), and in Grand Central Terminal, East 42d Street and Vanderbilt Avenue
(herein called the Grand Central shop).
(2) Waldorf Products Co., Inc., a' New York corporation (herein called Wal-
dorf) engaged in the business of procuring barber and beauty salon supplies and
related materials and products for the use of Terminal, Charmode, and other enter-
prises owned by Terminal as described below.
(3) Terminal Barber Shops of Maryland (herein called Terminal Maryland), a
corporation which operates a barbershop in Baltimore, Maryland, where it furnishes.
barber and related services to the public.
(4) Terminal Barber Shops of Pennsylvania (herein called Terminal Penn-
sylvania), a corporation which operates two barbershops in Pittsburgh, Pennsyl-
vania, where it furnishes the same type of services to the public as Terminal.
(5) Terminal'Beauty Shops, Inc. (herein called Terminal Beauty), a corporation'
which operates two beauty salons in New York City (aside from those run by
Charmode), where it furnishes the same type of personal services as the Charmode
salons.
(6) George M. Stern Beauty Salon, Inc., a corporation which operates one
beauty salon in New York City furnishing the same type of personal service' as the-
Charmode salons.2
Terminal is a closely owned corporation, with three or four stockholders, and
directors. Two of them are Jay Bauman and John R. Brown, who are also,
president-treasurer, and executive vice president-secretary-general manager, respec-
tively, of Terminal, and who hold the same offices in Charmode, Terminal Mary-
land, Terminal Pennsylvania, Waldorf, and Terminal Beauty. The principal office
additional facts regarding proceedings -,instituted by the Union in Case No. 2-RC-11136
(not published in NLRB volumes) before the National Labor Relations Board, and in,
Cases Nos SU-34215 and SE-34078 before the New York State Labor Board In accord'
ance with the stipulations, I correct the record as follows:
(1) General Counsel's Exhibit No 1 is corrected to read in part as follows-
1-M General Counsel's Motion for leave to file Amended Complaint
1-N Amended Complaint
1-0 Affidavit of Service of Motion
1-P Respondent's Notice of Opposition to above Motion
1-Q Teletype of Trial Examiner granting Motion
(2) The basic facts showing the proceedings in both representation proceedings noted'
above are accepted as stipulated facts, to the extent noted hereafter.
There are five or six other unnamed but inactive corporate subsidiaries of Terminal,
which are not pertinent to the issues herein.
BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 911
of'Terminal and each subsidiary corporation is located at 152 West 42d Street,
New York City, New York, where payrolls and other records of all the corpora-
tions are kept and maintained by administrative and clerical employees of Terminal.
In some past years, Terminal and Charmode have filed consolidated tax returns.
In their barbershop operations, Terminal and Charmode employ over 300 barbers.
manicurists, cashiers, and floor managers. These corporations and Terminal Penn-
sylvania have a common labor policy with respect to their barbers and manicurists,
who are members of Local 760, Journeymen Barbers, Manicurists, Hairdressers
and Cosmetologists International Union of America, which has executed a single
collective-bargaining contract with Terminal covering all these employees in the
New York and Pittsburgh barbershops .3 There is a constant interchange of barbers,
manicurists, other employees, and working managers among the barbershops and
beauty salons of Terminal and Charmode. All the barbershops in New York City,
Baltimore, and Pittsburgh are advertised and known to the public as "Terminal
Barber Shops," and their operations are constantly supervised andcontrolled by Vice
President Brown, as general manager, and to a lesser extent by President Bauman_
All employees in the Terminal and Charmode barbershops are covered by single
master insurance policies indemnifying said corporations against various types of
claims.
The record shows, and Respondent admits, that the sole function of Waldorf in
the operation of the Terminal enterprise is the procurement of materials and sup-
plies for use and incidental sale by all the barbershops and at least three of the
beauty salons; there is no substantial evidence that it buys products or materials for
use by or resale to sources outside the Terminal chain. Its procurement activities.
are handled entirely from the common office of the Terminal enterprises noted
above; it does not have employees separate from those of Terminal, nor does
it own or operate any independent manufacturing, warehousing, or distribution
facility, but arranges for delivery of supplies directly to various barbershops or
beauty salons, or for routing through an independent warehouse operator in a,
manner more fully described hereafter. I find that Waldorf is not an independent
nonretail business, but merely a procurement arm or purchasing agent of the
Terminal enterprise.
In view of Terminal's sole ownership of the subsidiary corporations, their com-
mon officers, directors, and stockholders, centralized top management and super-
vision, common principal office and clerical and administrative staffs, the common
labor policy of Terminal, Charmode, and Terminal of Pennsylvania, and the inter-
change of employees and supervisory personnel among establishments of those cor-
porations, I conclude and find that Terminal and its subsidiary corporations con-
stitute a single integrated business enterprise and a single employer within the
meaning of Section 2(2) of the Act .4
During the year 1960, in the course of its business, Terminal alone performed
services in New York for the consuming public valued in excess of $1,400,000;
including the business done by its Maryland and Pennsylvania subsidiaries, its gross
volume was approximately $1,680,000. In 1959 Charmode furnished services to
the public in New York valued in excess of $770,000, and in 1960 its gross volume
was over $1,000,000. During 1960, the gross volume of business done by Tishman,
120 Broadway, Empire State, Grand Central, and Time and Life barber shops of
Terminal and Charmode was approximately $534,000. In the same year, the total
gross volume of business performed by the entire Terminal enterprise (including
Waldorf) had a value in excess of $3,000,000. Thus, the entire enterprise satisfies
the minimum standard set by the Board for assertion of jurisdiction over retail
enterprises.5 While admitting this, and recognizing that the majority of the corpora-
tions in the Terminal family are engaged exclusively in retail business, Respondent
contends that the entire enterprise is a combination business, involving both retail
and nonretail operations, to the extent that the Board should apply its nonretail
standards under its rulings in American Linen Supply Co., et al., 12S NLRB 639, and
New Pacific Lumber Co., 119 NLRB 1307, and that the $50,000 minimum nonretail
standard is not satisfied by the facts herein, and that this standard is controlling
because the nonretail aspects of the business exceed de minimis.
The record shows, and Respondent admits, that during 1960 Waldorf and Char-
s Employees of Terminal Maryland in Baltimore and beauty salon employees of Char-
mode (the record does not show their number) are not represented by unions
* Morelli Brothers and Capital Transport Co., Inc., 123 NLRB 635, 638 ; Hamilton
Bros ., Inc and B cE C Stevedoring Co , Inc ., 130 NLRB 233 ; and The Pamiily Laundfy/„
Inc., et al, 121 NLRB 1619, 1620.
s Carolina Supplies and Cement Co., 122 NLRB 88,
`912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mode had a combined direct and indirect inflow of materials and supplies, which
were used only by establishments in the Terminal chain, valued at approximately
$49,500.6 As this figure falls short 'of the $50,000 minimum nonretail standard,
Respondent argues that the amount of such purchases is de minim is, when compared
to the gross volume of business of the Terminal chain, and that the Board should not
take jurisdiction herein under the cases above cited. I reject this argument. I have
found that the Terminal family is a single employer and an integrated retail enter-
prise, for purposes of jurisdiction, and that Waldorf's purchasing activities directly
implement the main retail service activities of the whole enterprise. It is also clear
that Charmode, in its purchasing activities, performs the same function for the beauty'
salon service portion of the enterprise carried on in its salons. Neither Waldorf
nor Charmode in this respect operate businesses separate and independent of the
overall service function.7 Hence, I conclude that the Terminal enterprise is pre-
dominantly an integrated retail enterprise rendering services to the ultimate con-
sumer, with procurement aspects only incidental to its main purpose. The Board
has held that determination of jurisdiction is based on the impact on commerce of
an employer's total operation, and that it will assert jurisdiction over this type of
enterprise if the employer's total operations meet either the retail or nonretail
standards .8 Further, the legal jurisdiction prerequisite to application of the $500,000
gross annual volume retail standard is present, in that Terminal does business in
more than one State through its Maryland and Pennsylvania subsidiaries, at least
$5,000 worth of its supplies bought from whatever source are shipped annually from
New York to the Maryland and Pennsylvania shops, and the total direct and indirect
inflow of the enterprise, is very little short of $50,000 annually. Hence its com-
merce operations are clearly not de minimis.9
Respondent also argues that only two Terminal barbershops, Tishman and 120
Broadway, were picketed and thus affected by the labor dispute, that the gross
volume of business done in 1960 by those shops was only $197,984, hence the
Board should not take jurisdiction under its ruling in McAllister Transfer, Inc.,
110 NLRB 1769, 1771, where it held that it would consider for jurisdictional pur-
pose (besides the operations of the primary employer) 10 "the operations of any
secondary employers to the extent that the latter are affected by the conduct involved."
In the McAllister case the Board considered the gross volume of business'done by
secondary employers at three terminals affected by the secondary activities and found
it sufficient to meet the applicable standard then controlling. As will appear here-
after, however, the Union's complaint about loss of jobs by union cleaners, which
gave rise to the picketing, involved not only the two shops picketed, but also the
Grand Central and Empire State shops (where union contractors had been ter-
minated and the Union threatened Terminal with picketing), the Time and Life
shop (where a union contractor had been terminated), and the Estelle Wyler Beauty
Salon of Charmode (where the Union tried to sign up an employee of a nonunion
cleaner). In addition, the record shows that union agents had between April 1960
and January 1961 solicited employees of Todaro and other nonunion cleaning con-
tractors at the Tishman, Empire State, and Grand Central barbershops, and the
Wyler Beauty Salon, to join the Union. It is clear from this that at least five barber-
shops and one beauty salon were involved directly or potentially in the dispute, as
they were being cleaned by nonunion contractors with nonunion employees. As
6 Of this amount, $26,000 represents products procured directly from out-of-State by
Adwe Laboratories, Inc, a New York City jobber and distributor, which are then resold
and delivered to Charmode, after an internal double-billing and "wash sale" procedure
between the two corporations which does not alter the fact of an original direct inflow in
that amount to Adwe and ultimate sale thereof to Charmode and delivery to its salons.
Contrary to Respondent's contention at one point, I find that these purchases constitute
indirect inflow to Charmode within the definition of that term in, Siemons Mailing Service,
122 NLRB 81, 85
7 There is some testimony that a small but not clearly defined amount of products is
sold by Waldorf to sources other than the Terminal establishments, but this does not
alter the main conclusion that Waldorf exists mainly to procure supplies for the service
operations of the Terminal chain
8Man Products, Inc., 128 NLRB 546; Indiana Bottled Gas Company, 128 NLRB 1441.
9 Cf Southwest Hotels, Inc. (Grady Manning Hotel), 126 NLRB 1151 ; Lamar Hotel,
127 NLRB 885; Catalina Island Sightseeing Lines. 124 NLRB 813. In applying its
standards, the Board does not compare the relative sizes of the retail and nonretail
aspects of the employer's operations T "H. Rogers Lumber Co, 117 NLRB 1732, 1733.
"There is no evidence that the operations 'of Joseph H Todaro, the primary employer,
meet any of the Board 's jurisdictional standards
BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 913
the gross annual volume of these establishments during 1960 was in excess of
$685,000 , I find that the retail business of Terminal as the secondary employer meets
the jurisdictional standards set forth in the McAllister case.
I conclude and find that Terminal and its subsidiary corporations are a single
employer engaged in commerce within the meaning of Sections 2(6) and (7) and
8(b) (4) of the Act, and that assertion of jurisdiction herein is warranted.
B. Terminal 's cleaning problems; the connection of Joseph R. Todaro therewith
At all times mentioned herein Joseph R. Todaro ( herein called Todaro ) has been,
and now is, employed by Terminal as a working manager and barber in its barber-
shops in New York City. A barber of about 25 years' experience, Todaro had
worked in that capacity for Terminal under prior and present managements from
about 1935 to 1953. He returned to work for Terminal in March 1959 as working
manager of its Tishman shop . He was transferred to the Time and Life shop in
the same capacity when that shop opened in April 1960 and has worked there ever
since. As working manager Todaro supervises the operations of other employees
in the shop , and works as a barber when not engaged in such supervision. Like
other barbers and manicurists in the shop , he is a member of Local 760 of the
Barbers' Union aforesaid. As a barber he is paid at the rate fixed by that Union's
contract with Terminal," and as working manager he gets $25 a week extra to com-
pensate him for loss of customers , commissions, and tips when engaged in supervisory
activity, and $10 a week additional for services as cashier of the shop.
For many years, Terminal has had many of its barbershops and beauty salons,
including the five involved herein , cleaned by contract cleaners, who did that work
at night,12 after the shops were closed to the public , with their own employees, at
negotiated fixed monthly prices per shop . For some years prior to 1960 , Anchor
Cleaning Company had the cleaning contract for the 120 Broadway , Empire State,
and Grand Central shops, while National House Cleaners had the contract for the
Tishman shop. The employees of both are members of the Union. Anchor's original
contract was written and was renewed periodically by oral extensions until it was
canceled by Terminal sometime in August 1960 ; National House Cleaners operated
only under an oral month-to-mouth contract until its cancellation in February 1960.
The contracts of both we're terminated by Terminal at the above four shops because
of unsatisfactory work and exorbitant prices for the amount of work being done.
However , National still cleans two other Terminal shops located in hotels, where it
cleans the entire building under contract with the hotel management ; Terminal pays
for the shop cleaning in its rent to one hotel , and pays National directly at the other
location . Respondent does not question that Anchor, National , and prior contract
cleaners were independent contractors.
When National 's contract was terminated , an individual named George ( last name
unknown ) was given the work at the Tishman shop upon recommendation by the
"brush boy" concessionaire in that shop to Todaro , its manager . Todaro interviewed
George , discussed price , told him what had to be done , and, after making a favorable
recommendation to General Manager Brown , was authorized to hire George. This
cleaner did the work for about a month , during which time he was not covered by
any of the master insurance policies covering Terminal employees,13 did his work
at night , and was not supervised in its performance by Todaro or any other Terminal
official, supervisors , or employee ; as part of his job as manager , Todaro inspected
the shop daily before it opened to see if it was cleaned properly ; and if it was not
clean , Todaro would tell George about it when he came in that evening. George's
contract was terminated at the end of March 1960 by mutual agreement between
him and Todaro because he was unable to handle the nightwork properly after
handling another day job.
Again on recommendation of the Tishman brush boy, Todaro interviewed one
Sam Goddard , who was cleaning other establishments under the name of Sam's
Cleaning Service, and, after some negotiation and on authority from Brown, made a
contract with him to clean, the Tishman shop for $100 a month, and the Time and
11 This is a fixed weekly base pay, plus commissions of 50 percent of all gross weekly
business over a fixed amount handled by him
12 The contract cleaning is distinct from incidental on-the -spot daytime cleaning per-
formed by concessionaires in some shops, for which they are paid small fixed amounts
weekly from the petty cash funds of the shops.
1'The classifications covered were barbers, manicurists , cashiers , hair dressers, and
floor managers . Concessionaires , including shine boys and brush boys, are not covered
634449-02-vol 135-59
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D
Life Shop for $150 a month after it opened. About the'same time, Brown himself
negotiated with Goddard an extension of the contract to include the Estelle Wyler
Beauty Salon at $220 a month. Goddard was paid by Terminal for two shops and by
Charmode for Wyler. He hired and supervised his own employees, and received no
supervision from Terminal except admonitions about poor work from Brown when-
ever the latter got complaints from shop managers. Terminal canceled Goddard's
contract at the three shops for poor work at the end of June 1960.
While Goddard had the cleaning contract, he tried to interest Todaro in going into
partnership with him in the cleaning business, but was unsuccessful for reasons dis-
cussed hereafter. After Goddard's contract was canceled, Todaro asked Brown for
a chance to clean the three shops, claiming he could do the work properly. He quoted
prices higher than those paid to Goddard but, 'after negotiation with Brown, agreed
to clean the shops at the same price as Goddard, and an oral contract was made on
that basis. Todaro started to clean the three shops July 1, 1960. After the Anchor
contract on the Grand Central, Empire State, and 120 Broadway shops was can-
celed, Terminal extended Todaro's contract on September 1 to include those shops.
Todaro's contract on the Wyler Salon was canceled at the end of August 1960 for
unsatisfactory work; that location was given to another contractor who was procured
by Miss Wyler, then part owner of the shop. Just before Christmas 1960, Todaro's
contract was canceled at 120 Broadway for unsatisfactory work; Terminal at once
made a contract for that shop with James Moore, a porter who cleans the bank in
the building in which the shop is located; Moore cleans that shop with the aid of one
employee, and gets $180 a month for his work, paid at the rate of $45 a week in cash
out of the petty-cash fund of that shop. At the time of the hearing, Todaro was
still cleaning the Time and Life, Empire State, Tishman, and Grand Central shops
with a work force of two employees.
C. The picketing
After cancellation of the National and Anchor contracts, Donald F. Mumm, busi-
ness agent of the Union, had several personal and telephone conversations with
President Bauman, Vice President Brown, and Todaro, between March and October
1960, about the cancellations, in which he complained that Terminal had thereby
deprived union cleaners of jobs, and sought to persuade it to reinstate these contrac-
tors or make contracts with other union cleaners, so that members of the Union would
have work. His discussions with Terminal will be considered in detail later. On
August 11, 1960, the Union sent Terminal a letter, advising that it had received
notice of the cancellation of the Anchor contract, complaining on the basis of an
alleged talk with Brown of that date that Terminal intended to displace union mem-
bers with its own employees to clean its shops, and advising that after Labor Day, "if
our members have not been reinstated to their jobs in the above locations (citing
Empire State, 120 Broadway, and Grand Central shops) the Union will picket these
premises." Terminal replied by letter of September 6, admitting that as of Septem-
ber 1 "a change has been made for economic reasons in the arrangements for cleaning
services at several of our shops," but denying that Terminal would use its own em-
ployees for this work, and stating that at each location affected the cleaning employ-
ees "will be hired by a firm which is separate and distinct from our organization."
The Union began to picket the Tishman shop on November 2, 1960, and the 120
Broadway Shop on November 14, 1960, with union members who were apparently
not employees of Terminal or Todaro. The picketing continued until November 28,
1960, since which date Respondent has abstained under an agreement that there
would be no picketing during the pendency of this case. At each shop the picketing
was conducted by one picket at the street entrance to the main building which gave
access by a stairway to a lower level or subarcade on which the Terminal shop was
located. The picket carried a sign with wording on it substantially as follows:
Office Cleaners Union on strike. Terminal Barber Shop, 666 Fifth Avenue,14
has displaced Local 32-J members by hiring non-union employees. Help us
gain better conditions. Local 32-J, Building Service Employees International
Union, affiliated with AFL-CIO, 250 West 57 Street, Circle 6-0800.
The picketing was carried on only during the daylight hours when the barbershops
were serving the public; there was no picketing after business hours when cleaning
personnel were at work. As the Terminal barbershop was the only one in the main
building at each address, it is clear that the picketing and signs were directed at the
Terminal shops.
"This address was on the sign at the Tishman shop; the sign at 120 Broadway had
that address on it.
BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 915
D. The issues
The question of the legality or illegality of the picketing requires a determination
of the exact status of Todaro under his cleaning arrangement with Terminal . General
Counsel contends that he is an independent contractor of.that work , whose employees
the Union was trying to organize , and hence was the primary employer , and that the
picketing was illegal because its objective was to compel Terminal , a secondary
employer, to cease doing business with Todaro and resume contractual relations with
cleaning firms whose employees were members of the Union . Respondent argues
Terminal was the sole, and thus the primary , employer with whom the Union had a
dispute, in that the Union was trying to persuade Terminal to cease cleaning its shops
with its own employees who operated under the supervision of Todaro , as agent of
Terminal, that Todaro was not an "employer" or "person" within the meaning of the
Act, hence the picketing of Terminal for the above purpose was legal, protected
activity.
1. The status of Todaro
In determining whether an individual is an employee or an independent contractor,
the Board applies the "right of control" test: Where the person for whom services
are performed retains the right to control the manner and means by which the
desired result is to be accomplished, the relationship is one of employment ; but where
control is reserved only as to the result sought , the relationship is that of an inde-
pendent contractor . The resolution of this question depends . on the facts of each
case , and no one factor is determinative . Lindsay Newspapers , Inc., 130 NLRB 680.
However, the Board has recognized that certain factors may have more significance
than others , such as (1) the opportunity of the individual for profit or loss based on
his own efforts , (2) his power to determine his own wages, those of his employees,
and other terms and conditions of operation, (3) his method of compensation, and
(4) the lack or extent of detailed control by the alleged employer over the individual's
method of operation . Smith 's Van & Transport Company, Inc., et al ., 126 NLRB
1059 , 1060 ( footnote 2, citing U .S. v. Silk , etc., 331 U .S. 704 , 716, 719 ); La Prensa,
Inc., 131 NLRB 527.
Applying these principles , the record contains various factors which support the
conclusion that Todaro was an independent contractor:
(a) Prior to its arrangement with Todaro , Terminal had always had the major,
nighttime cleaning of its shops performed by independent contractors ; there is no
proof that it had ever directly hired or used its own employees for that purpose 15
This establishes a significant pattern.
('b) Terminal adhered to this pattern in dealing with Todaro.. Although he was
at all times a supervisory employee of Terminal in the operation of barbershops, and
had had experience in negotiating cleaning contracts with "George" and Goddard
for his employer , Terminal did not initiate the cleaning arrangement with him. After
four previous contractors had proven unsatisfactory , Todaro brought it up by pro-
posing to Brown that he be given a chance to do the work . This was consistent with
Todaro 's past endeavors as a small businessman or enterpreneur. After long service
with Terminal , he left it in 1953 to try his hand at various business ventures, such as
selling special eyeglasses to theaters for audiences viewing three -dimensional films,
running concessions on a steamship for 3 years , and managing another barbershop
for a time . In the past he had also run a family corporation engaged in distribution
of perfumes . As manager of two Terminal shops, he knew the type and scope of
cleaning work required in them , the standards of cleanliness demanded by Terminal,
and the deficiencies of prior contractors in cleaning both shops. During Goddard's
16 "George ," the cleaner at Tishman for a month , comes closest to an employee status,
in that he did the work alone , did not have any work force of employees . and there is no
proof to show how or where he secured his working equipment However, he was not
covered by any of Terminal 's insurance policies , and he worked without supervision from
Terminal at night, after he had been told at the outset the nature and scope of the work
to be done. There is no evidence of Terminal's exercise of any control over his method
of operation , but only over the end result of his labors.
The concessionaires who handled incidental daytime cleaning are independent con-
tractors who pay rent for their, concessions at a percentage of their gross intake, which
is handled for them by the shop manager or cashier . They are paid separate compensa-
tion weekly for cleaning jobs out of the shop petty cash fund Most of them work
under oral arrangements , but a few of long standing , with several employees working
for them, have written contracts with Terminal Those with several employees carry
insurance covering them. Concessionaires buy their own equipment , and hire their own
employees.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract, he also learned about the financial and other problems involved in contract
cleaning when he examined Goddard's books in considering the latter's proposal that
they become partners. It is a reasonable inference that his enterprising nature, past
business background and personal knowledge of the cleaning work and its problems
combined to induce him to try his hand at that work; hence, his proposal and negotia-
tion of the deal with Terminal. In reaching agreement, the parties apparently
dealt at arm's-length, for Brown did not at once accept Todaro's proposal, but stipu-
lated that the work must be done properly and that the "price be right"; it was only
after they had haggled over price, and Todaro had reduced his figures to Goddard's
prices, that Brown recommended, and Bauman approved, the deal. The final agree-
ment was oral and informal, on a month-to-month basis, like the last contracts with
Anchor, National, "George," and Goddard.
(c) Todaro's oral arrangement was silent about the identity or number of em-
ployees he would use. In performing his contract he hired and supervised his own
employees, without suggestion or control from Terminal. Up to the hearing, he had
hired and employed for various periods eight persons: none of them had ever been
employees of Terminal; four of them have been concessionaires , or employees of
concessionaires, in the Tishman and Time and Life shops, whom Todaro hired when
they applied for the nightwork in order to make extra money; the other four came
from outside sources. At the time of the hearing Todaro had two employees: Robert
Benjamin , concessionaire at the Time and Life shop, who cleans only that shop, and
Fred Galloway, who handles the other three shops. Todaro usually gives his em-
ployees suggestions about their work when they come into the shop about 6 p.m.,
while he is finishing up his work as manager; otherwise, they work alone and without
specific supervision during the night. No Terminal officer observes or supervises
them in their work; at most, the shop managers check the results of their work when
they inspect the shop each morning, to see that it is ready for business; Brown notes
the condition of each shop during his weekly visit to inspect its general operation;
Bauman usually does the same whenever he visits a shop less frequently for business
reasons. Any unclean conditions noted by these officials are reported to the contractor
for attention, either directly by Brown or through the manager. These inspections of
the results of cleaning occur during the day, either before or during operating hours,
never at night.18 In this respect, Terminal exercised no more supervision over
Todaro, Moore, and the Wyler Salon cleaner than it had over Anchor, National,
"George," or Goddard.17
(d) Todaro pays his employees by checks drawn on his personal bank account.
(e) Todaro keeps separate payroll and other records for his employees, which were
set up and are maintained by his personal accountant at his expense . He has pro-
cured the usual withholding statements for Federal income tax purposes from em-
ployees, has paid social security taxes for them, and made the requisite periodic
reports and accompanying payments to the Federal Government under the Federal
Insurance Contributions Act, and to New York State under the New York Unemploy=
ment Insurance laws.
(f) Todaro procured at his own expense general liability and workmen's com-
pensation insurance policies covering his cleaning operations as a contractor at the
insistence of Brown and on advice of his own accountant.18 . The Terminal master
1s Once or twice a year, Brown conducts a barbers' training school at one of the shops
during evening hours, but he has never taken these occasions to supervise the work of
cleaners who might happen to be working there at the time.
IT It -is true, as Respondent argues, that the cleaning work is simple, so that the
cleaners require no actual supervision of their labors during the night, and the only
feasible supervision is the daily examination of their work by shop managers or other
Terminal officials Respondent contends that since this examination is done by managers,
including Todaro, as part of their managerial duties, the only control of which, the
cleaners are susceptible is in fact exercised directly by Terminal But this argument
ignores the fact that the daily examination covered only the extent of the cleanhneso, or
the end result of the cleaners' work ; if it is found below standard, the complaints are
sent to Todaro, as the contractor, for attention, not to the cleaners involved, and he
alone talks to his employees about it. There is no proof that '''"urinal officials talked to
the cleaners about it, or ever attempted or even suggested discipline for them, or methods
of correction of their work methods ; the only control Terminal exercised was over
Todaro, as the contractor, through partial termination of his contract \_`
18 His general liability policy covers hazards in "building-operations by coatractors
[not owners , lessees, or managing agents]" and provides that it "does not apply except
in connection with the conduct of a business of which the named insured is the sole
owner." His workmen' s compensation policy classifies the operation covered as "building
service contractor " In view of these provisions , there is no real significance in a state-
BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 917
policies have never covered any of his cleaning employees , but only the four or five
classifications of Terminal employees who work in the barbershops and beauty salons
during the day.
(g) Todaro buys his own cleaning materials and equipment for his employees.
(h) Todaro is paid a flat monthly price for cleaning each shop , which was negoti-
ated with Terminal at the outset for at least three shops . The payments are made on
separate bills for each shop submitted by him monthly. This is a normal indicium
of an independent contract relationship , and is all the more significant because it con-
trasts with, and has no apparent relationship to, Todaro 's compensation as a barber
and working manager which is paid weekly and varies in accordance with the volume
of shop business and the amount thereof which Todaro handles personally.
(i) During performance of the contract , Todaro and Terminal dealt at arm's-
length . Terminal's complete lack of contact with his employees has already been
noted . On one occasion Brown refused to rent or buy a waxing machine for Todaro,
leaving him to his own resources in that respect . After stating its initial require-
ment that Todaro procure insurance covering his cleaning operation and employees,
Terminal did not follow up to see that he got proper and prompt coverage , nor did
it criticize or penalize him in any way because he did not procure "binder" coverage
until September 1, or because his policies were effective only from October 1. After
several warnings from Brown that the 120 Broadway shop was not being cleaned
properly , Terminal did not observe his employees to discover the reason , or suggest
or demand their discharge or other discipline , or particular corrections in his cleaning
methods; it merely terminated his contract there for poor work. It took the same
action at the Wyler Salon when his performance failed there . However , it con-
tinued his contract at other shops where his performance was satisfactory. Aside
from the partial termination of his contract and proportionate loss of contract price,
his deficiencies at two shops had no effect on his continuance or compensation as a
service and supervisory employee in the Time and Life shop. This circumstance alone
negates the argument of Respondent that Terminal in fact exercised complete control
over Todaro in all his relationships with Terminal , through its power of terminating
his cleaning contract at will , and renders Butler Brothers v. N.L.R.B., 134 F. 2d
981 (C.A. 7), cited by Respondent , inapposite on the facts.
Certain factors are consistent with the claim that Todaro was operating the clean-
ing business as an agent or employee of Terminal:
(1) He operated the business from, the Time and Life shop, where he received
business mail, often used Terminal shop funds to cash checks of cleaning employees,
used Terminal employment application forms when interviewing and hiring these
employees, and procured business insurance through the Terminal insurance broker.
That Terminal allowed him to use the shop as his office is not of major significance,
however, because this clearly benefited Terminal as much as Todaro, in that Terminal
officials and managers could reach him there readily to register complaints about
the cleaning. There is, no proof that handling of the cleaning business there during
business hours interfered at all with his duties as barber or working manager.1°
As he used Terminal employment application blanks without knowledge of Terminal
officers, this was obviously a "liberty" he took with Terminal property, inferably
for the sake of convenience and to save some expense . Since he used them regu-
larly to record data about applicants for barber and manicurist positions, it does
not seem unusual that he used a few of the forms for his cleaning employees. In any
event, he used so few that their cost to Terminal must have been trivial. Nor was
his use of the Terminal insurance broker of great significance: When he learned
ment in a binder sent Todaro about September 6, 1960, that "We understand that the
employees which you engage will be those of Terminal ," particularly since the record
shows that Todaro never used any Terminal employees for the cleaning, and Todaro
explained that after he requested coverage from the insurance broker, an insurance
engineer interviewed him to learn the type of work and locations involved, and Todaro
told him he hoped to use bootblacks who were employees of concessionaires in the various
;hops, and in fact had a few already working for him. It is inferable from this that the
engineer, and probably the broker, assumed erroneously that bootblacks were Terminal
employees
19 See La Pren8a, Inc., 131 NLRB 527, where a photographer was considered an inde-
pendent contractor, although his agreement with a newspaper specifically contemplated
his use of the newspaper's property in connection with his work.
Nor is it surprising that, as a small businessman with a gross volume of business of
only about $11,000 annually at its peak and reduced to $6,000 at the time of the hearing,
Todaro would try to economize by avoiding the rental of a separate office with all its
attendant present day expenses
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had to carry his own insurance, he asked a Terminal official to suggest a broker,
and was referred to the Terminal broker. His resort to that individual was also a
convenient and natural choice, as we can infer that he felt a broker used by his
employer would be reliable. Hence, this is far from substantial proof, that Terminal
was supervising his method of operation. 20 His use of Terminal funds to cash his
employees' checks was another "liberty" he took with Terminal property; it was un-
known personally to Bauman or Brown and violated a Terminal rule and policy
against use of petty cash for cashing personal checks. -However, shop managers
honored this rule more in the breach than the observance, by cashing checks for
known and trusted customers, without apparent criticism from Terminal. I am
satisfied that Todaro "stretched" the breach a bit more. to accommodate his em-
ployees, but only when they came for -their checks after banking hours; otherwise
they cash their checks at the bank. When he cashed them, however, Terminal did
not lose money thereby, for he substituted his personal check, endorsed by the payee,
for the-cash, and deposited it with shop receipts in the Terminal account in the same
bank where he has his account. Thus, he pledged his personal credit in lieu of cash
in part of Terminal's assets; there is no proof that his checks ever "bounced" for
lack of funds. At most the above practices indicate that Terminal did not keep
close watch on Todaro's method of running his cleaning business, and was perhaps
lax in checking on him when he took liberties with its cash and minor property items.
While this might be the leniency which an employer would exercise in the case of a
trusted employee, it is more significant, in contrast, that when he tried to persuade
Terminal to buy or rent cleaning equipment for him, it refused to go beyond its
contract. terms. Thus, he was left to his own devices in the method of running the
cleaning business. Terminal's leniency also highlights the contrasting fact that it
was prompt to criticize him whenever he fell down on the cleaning of a shop, and
even went so" far as to terminate his contract at two shops when his performance
there continued' unsatisfactory-but without affecting, however, his employee status
as barber and working manager.
(2) Todaro's negotiation of the cleaning contracts with "George" and Goddard,
and his daily inspection of his own shop for cleanliness, were part of his duty as shop
manager, and are some indication that in one sense his control and supervision of
the cleaning employees overlapped with his managerial duties, at least in his own
shop. However, as his contract operations involved substantial labor and material
costs for work in four or more shops, which could not possibly have been contem-
plated as coming within the $25 a week he received as working manager of one
shop, I consider the overlap as to one shop of no significance in establishing him as
a mere employee in'respect of the cleaning work. Nor was his incidental duty of
negotiating prior contracts of any significance, for that was apparently a convenient
practice of Terminal: Todaro was assigned the additional duty of negotiating the
cleaning contract for his shop, just as the manager of 120 Broadway made the con-
tract with Moore, and the part owner of the Wyler Salon made a contract there with
another individual, after Todaro lost both locations.
(3) The record shows that, after the Union began picketing, Todaro and Bauman
conferred and agreed on a course of procedure vis-a-vis the Union which depended
upon the effect of the picketing on the Terminal business; i.e., if the picketing affected
business at the shops picketed, or in the buildings in which they were located,
Todaro's employees would have to join the Union, and he would have to sign a
contract with it, in which event his contract price would be adjusted to take care of
any additional cost to him entailed thereby. This was agreement on a common labor
policy, which is usually a significant indication of an employer-employee relationship,
or of a "single employer" status where two or more separate employers are involved.
This was an ad hoc policy, which arose solely from the picketing. When Todaro
negotiated his contract with Terminal in June, there was no discussion between him
and Brown or Bauman about the Union or the question of his employees joining
the Union. They did not discuss that topic until shortly after the picketing started,
when they made the agreement noted above. Although they concurred in it, I think
it was largely dictated by Bauman, despite his testimony to the contrary. Todaro
was not hostile to the Union or averse to signing a contract with it, if that became
necessary. He was a unionman of long standing. As will appear below, he sym-
pathized with Mumm when the latter first complained about loss of union jobs in-
volved in the termination of the National contract, and after discussions with Mumm,
Todaro even tried on his own initiative to find another union contractor as a sub-
stitute for National. In June he explored the costs of a union contract while con-
20 There is no proof that Terminal directed or suggested that he keep separate books
and records for cleaning employees, or hire his own accountant.
BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 919
sidering Goddard's invitation to buy into the latter' s cleaning business . When the
picketing started, Todaro was worried about it, and in an early conference in
November told Bauman that his brother had advised him to sign up with the Union,
that he felt the picketing might affect the Terminal business and his contract ad-
versely, so that his employees might have to join the Union, and he might have to
sign a union contract and pay union rates and other benefits, and the added cost
would have to be reflected in his contract price to Terminal. Bauman admitted this
might be necessary, and said it could be worked out. However, he outlined and
controlled the strategy thereafter, for he told Todaro not to worry, but to "stand
by," to "wait and see" what the Barber's Union might do about Todaro's cleaning
contract and the employees of National (who still cleaned other Terminal shops)
would do about the picketing, and how it would affect the shops, and that he
(Bauman) would have his attorney take care of it, and would advise Todaro if
the situation became serious. Bauman testified that he recognized two possibilities:
if the picketing had an adverse effect on Terminal's business, he could get the pickets
removed only if Todaro's workers joined the Union, or "we get a union contractor
to perform these duties, as we had before"; however, he hoped the decision would
not have to be made, that the situation could "continue as is, and we are not making
changes until we were forced to." When it appeared that the picketing was not
affecting the shops' business, Bauman advised Todaro that Terminal was satisfied to
"let matters stand as they are," to which Todaro agreed, and neither party, did any-
thing about changing the basic contract terms nor did Todaro take action toward
signing a contract with the Union covering the cleaners. Although Todaro testified
that he was still willing to sign up with the Union, but had not done so because he
did not have enough cleaning work to make it feasible, I am satisfied that the
"feasibility" of that step was controlled largely by Terminal's decision whether it
would be willing to adjust Todaro's contract to take care of the added expense of
operating under a union contract. It is also noteworthy that, in formulating the
joint labor policy at the outset, Bauman relied upon the advice of Attorney Charles
Moos, assistant secretary of Terminal and Charmode and legal adviser to the
Terminal enterprise on labor relations. Shortly after the picketing started, Bauman
brought Moos to a conference with Todaro, where Moos learned of Todaro's previ-
ous contacts with the Union, advised that he considered the picketing a secondary
boycott, and said he would take care of it by filing a charge with the Board. Todaro
concurred in this. Bauman then told Todaro to leave the matter in Moos' hands.
Later, Todaro hired Moos to represent him before the New York State Labor Board
when the Union filed a representation petition with that agency; Moos also repre-
sented Terminal's "interests" in that proceeding.
Insofar as the joint labor policy took into account the possible financial impact
upon the parties of the picketing and, in, turn, the contingency that Todaro might
have to sign a union contract, it affords some support for Respondent's contention
that the deal with Todaro was merely a subterfuge which grew out of Terminal's
desire to avoid further dealing with union contractors. It is true that, ever since its
cancellations of National and Anchor due to high prices for poor work, Terminal
has tried to get the shops' cleaning done at the lowest possible price. But this
legitimate economic motive has governed Terminal's conduct throughout, even when
it negotiated with Contractor Moore after partial termination of Todaro's contract.
We can infer from its experiences with Goddard, Todaro, and Moore that Terminal
has concluded it can get the work done cheaper with nonunion contractors, but since
there is no serious contention that Goddard and Moore were other than independent
contractors, I cannot believe that Terminal deliberately set up Todaro in the cleaning
business, with the mere facade of an entrepreneur, with the discriminatory motive
of avoiding any dealing with the Union or use of union labor, particularly where it
has throughout had apparent amicable relations with another labor organization
representing most of its employees, and there is no proof at all that it has been gener-
ally or specifically hostile to unions. I therefore reject the subterfuge argument as
without support in fact.
There is no question that in this case Todaro has been wearing "two hats," one
as an employee of Terminal in the usual sense , the other as the contract cleaner.
This fact alone has caused me to set forth a detailed and careful analysis of all the
pertinent aspects of the dealings and relations between the two. However, after
careful appraisal of all pertinent facts and circumstances, pro and con, I am con-
vinced that the factors indicating an independent contractor status outweigh, both
in number and relative significance, those which would support the view that Todaro
was still a Terminal employee in handling the cleaning work. I conclude and find
that in respect of that operation Todaro was and is an independent contractor, not an
employee of Terminal, and that his contractual arrangement with Terminal made
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him an "employer," and a "person" with whom Terminal was " doing business ," within
the meaning of Sections 2(l) and 8(b) (4) of the Act 21
2. The Union's objective
In March and April 1960, shortly after Terminal canceled the National contract
at the Tishman shop, Business Agent Mumm complained to Bauman and Brown
that the cancellation put union cleaners out of work, and suggested that Terminal
try another union contractor from a list kept by the Union. Bauman told Mumm
why National had been terminated but, aside from discussions with National when
it tried to persuade Terminal to reinstate its contract, he made no attempt to engage
another union cleaner; instead Terminal contracted with "George" and Sam Goddard
in turn to handle Tishman and other shops as found above When Mumm first
visited the Tishman shop in March to find out who was cleaning it, Todaro told
him a nonunion contractor was doing it, and that in his opinion National had been
terminated because the business at that shop was falling off. When Mumm com-
plained about the cancellation, Todaro replied that he would like to see union men
doing the work again , but he could do nothing about it as he was only the manager;
however, he would discuss it with Brown. When Mumm suggested to Todaro that
Terminal should try another union contractor, Todaro was receptive and on his own
initiative contacted other union contractors on the list furnished to him by Mumm,
but found their prices were so high that he did not attempt to talk to Bauman or
Brown about it. When Mumm again contacted Todaro in April and May to find out
if Terminal had decided on a union contractor, Todaro told him the results of
his use of the Union' s list . Goddard was cleaning the Tishman and Time and Life
shops at the time, and in one of their talks in this period Todaro told Mumm that he
thought he had a solution, as there was a possibility that he might "back" Goddard
in his cleaning business , but that if he did, he wanted Goddard to have a contract
with the Union 22 He said he had examined Goddard's books and felt that God-
dard was not in "very good shape" then, that he (Todaro) did not have much to
invest, so he wanted to find out from Mumm what it would cost Goddard and him
to operate under a contract with the Union. Mumm told him generally what finan-
cial obligations a contract involved, in payment of union wages, periodic payments
into workers' welfare and pension funds, and other benefits. He explained that
another business agent , Joseph J. Baumann , in charge of contract matters, could
give Todaro the exact figures and procedure for securing a union contract, which was
a standard form for all contractors. Todaro got the impression from Mumm's re-
marks that a union contract would involve an outlay of about $15,000, so he asked
Mumm if he could have his cleaners join the Union, and he could sign the regular
union contract, but pay his workers only the union wage (without making the other
contract payments) for a while until the business "got on its feet." Mumm rejected
that idea, saying there were no "halves," that Todaro would have to "go all the way
or not at all." Todaro replied that Mumm was not being very helpful, and that
he (Todaro) would have to see Baumann personally. In August, the Union sent
Terminal the letter cited above, threatening to picket the shops where union members
had lost jobs as a result of termination of the Anchor contract. In September or
early October, while Todaro had the cleaning contract, Mumm complained to Todaro
about the amount of work he had taken away from union cleaners. Todaro told
him that he (Todaro) was a good "union" man, having been in the Barbers' Union
many years, that he wanted no trouble with that union or Respondent Union, and
was still interested in getting a contract with Respondent, and asked Mumm to arrange
a conference for him with a union representative to talk about it. Mumm referred
him to Baumann. Shortly after, Todaro conferred with Baumann who explained
the procedure for signing up with the Union and gave him a sample "independent
contract" form. Todaro has never signed a contract with the Union, but has never
specifically refused to do so. He explained credibly on cross-examination that he
conferred with Baumann to find out what conditions he had to meet in signing
up with the Union, so that he could discuss them with his accountant to determine
if he could make a contract rate with Terminal which would permit him to operate
z See cases cited above, and also Nelson-Ricks Creamery Company, 89 NLRB 204,
206; Duane's Miami Corporation, 119 NLRB 1331, 1334, 1335. For the reasons cited
above, I also reject Respondent's argument that Terminal and Todaro were in fact or
law ioint employers of the cleaning personnel
In April or May, Goddard offered Todaro a half-interest in his business for $2,500.
which Todaro turned down after examining Goddard's books and equipment In their
discussions , they considered the financial impact of signing a contract with the Union, as
Todaro, being a unionman, wanted to avoid any trouble with that organization
BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 921'
under a union contract and still run the business profitably; if the conditions would
not permit a profit, he would not sign up with the Union, but if he could get a price
increase from Terminal to meet those conditions, he intended to sign a union contract.
Since the picketing in November, Todaro and the Union have had no further dis-
cussions about a contract.
It is clear from the above facts that after cancellation of the National and Anchor
contracts, the Union tried for about 7 months to persuade Terminal to use union
contractors and union members to clean the five shops in question. At the same
time, however, it made efforts to organize the nonunion cleaners who followed Na-
tional and Anchor. As early as April 1960, Mumm in the course of his investigation
of the contract cancellations ,23 learned from Todaro that Goddard, a nonunion con-
tractor, was cleaning the Tishman and at least one other shop, and in June a union
agent signed up one of Goddard's employees at the Estelle Wyler Salon. From Sep-
tember 1960, through January 1961, the Union solicited at least eight cleaning per-
sonnel , and signed up four or five of those it found working in the "cancelled" shops.
On the basis of what it learned from them and Todaro himself about the circum-
stances of their hiring and who supervised their work, the Union filed a petition- on
January 6, 1961, with the New York State Labor Relations Board seeking an investi-
gation and certification of bargaining representative under New York State law.
The petition named Todaro as the employer of about five employees in the " cleaning
and maintenance" business , listed the types of employees as "cleaning women,
porters and waxers," and the locations of employment as the addresses of the Tishman,
Grand Central, and Empire State shops 24 In February 1961, the Union sought a
formal hearing in the State board case, but after the close of the hearings herein was
allowed by that agency to withdraw its petitions without prejudice 25 I find from
these facts that both before, during, and since the-November picketing the Union
has carried on the usual type of campaign to organize the cleaning employees and to
be officially recognized as their bargaining representative. I do not consider the
Union's investigation of the cleaners' status vis-a-vis Todaro and the action it took
in both representation proceedings on the basis thereof as conclusive evidence, or
even an admission against interest, to show ,that Todaro was and now is the employer,
since there is no proof that the Union had access to all the facts and records adduced
herein which have formed the basis of my conclusion as to his employer status.
However, the Union's activities in this respect clearly show that it was at all times
taking a two-pronged approach designed to secure the cleaning work for its members:
While trying to persuade Terminal to use union contractors, it was also trying to
organize the nonunion workers who had taken the place of union members employed
by the terminated union contractors.
Both lines of activity had a single overall purpose: the use of members of the
Union to clean Terminal shops. However, I am satisfied and find that the Union's
main line of procedure toward this objective was to cause Terminal to use approved
union contractors from its existing list; the organization of Todaro's cleaning em-
ployees was only •a secondary, auxiliary line of attack. This is clear from the
23 His duties involve handling of situations where union contractors are changed on a
job, where a union , contractor is replaced by a nonunion cleaner, or by employees of the
user of the cleaning services, and soliciting nonunion workers in the latter situations to
join the Union.
24 Although Mumm testified that some of the, cleaning personnel he interviewed could
not say who their employer was, tie admitted that most of them said they had been hired
by Todaro, that Todaro was their "boss" in the cleaning, and that the Union named
Todaro as the employer in the State proceeding because Todaro had said he was doing
the cleaning "on his own behalf," Terminal had written the Union in September that the
cleaning would be done by an independent contractor, and "everybody kept insisting that
Joe Todaro-everybody claimed Joe If Joe is the man, then we will fire Joe Todaro "
25 On December 2, 1960, the Union also filed a representation petition with the Second
Regional Office of the National Labor Relations Board in Case No 2-RC-11136, in which
it named Terminal and/or Todaio as the employer On later application, the Regional
Director for the Second Region on December 16, 1960, permitted the Union to withdraw
its petition without prejudice Except as noted above, I make no findings regarding the
circumstances of Respondent's action in both State and Federal proceedings as set forth
in its letter of March 27, 1961. to the Trial Examiner I hereby admit in evidence, for
the limited purpose indicated by the above facts„ copy of letter. dated March 24, 1961,
from Respondent's counsel to, the New York State Labor Board (as Respondent's Exhibit
No 7), letter of Respondent's counsel to Trial Examiner dated March 27, 1961, with
registered mail envelope and three enclosures (as Respondent's Exhibit No 9), and letter
of General Counsel to the Trial Examiner,. dated March 30, 1961, (as General Counsel's
Exhibit No. 61)
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following circumstances: (1) the Union's continual complaints to Terminal and
Todaro about the loss of union jobs entailed by termination of National and Anchor;
(2) the Union's threat of August 11, to picket three locations covered by Todaro's
contract unless union members were given work there (obviously by reinstatement
of National or Anchor or engaging another union cleaner); (3) Mumm' s admission
that in September he was trying to get the shops cleaned by another cleaner; (4)
credible testimony of Todaro which indicates that, when he evinced a sincere interest
on two occasions in signing up with the Union, Mumm gave him only general in-
formation about the procedure and costs involved, and did not exert himself to
assist Todaro to procure a union contract, which contrasts with his active efforts to
induce Todaro to seek out other union contractors; (5) the picket signs advertised that
Terminal (not Todaro and his cleaning employees) had displaced union employees
in the cleaning work, and picketing occurred only at shops where such "displace-
ment" occurred; (6) the Union did not picket the Time and Life shop, where Todaro
had his office and no union employees had done the cleaning prior to the time Todaro
got the contract; and (7) the picketing did not occur when the cleaning employees
were engaged in their normal work 26
I conclude and find on all the above facts that, insofar as the Union was trying to
organize employees of Todaro, and sought to be certified as their bargaining agent,
Todaro was the primary employer within the meaning of Board authorities con-
struing Section 8(b)(4) of the Act, and that the main object of the Union's
picketing of the Tishman and 120 Broadway shops was to compel Terminal, a
secondary employer and a person engaged in commerce, to use union contractors
for cleaning of those shops, which would necessarily involve discontinuance of the
cleaning contracts of Todaro and any other nonunion contractors presently doing
that work, hence would compel Terminal to "cease doing business" with those
"persons" within the proscription of Section 8(b) (4) (ii) (B) of the Act. As the
picketing occurred at times when unionized employees of Terminal worked at the
shops and perforce had to cross the picket lines , the picketing was calculated to
induce and encourage employees of Terminal, the neutral employer, to engage in
a strike or refusal to perform services within the meaning of clause (i) of Section
8(b)(4) of the Act. Perfection Mattress & Spring Company, 129 NLRB 1014.27
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
will recommend that it be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
On the basis of the foregoing facts, and upon the entire record herein, I hereby
make the following:
CONCLUSIONS OF LAW
1. Terminal is an employer and "person engaged in commerce" within the mean-
ing of Sections 2(2), (6), and (7) and 8(b)(4) of the Act, and Joseph Todaro
is an employer and independent contractor, and "another person" within the mean-
ing of Section 8(b) (4) (ii) (B) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the Act.
3. By inducing and encouraging employees of Terminal, a neutral employer, to
engage in strikes or concerted refusals in the course of their employment to work
or perform services for their employer, and .by threatening, coercing, and restraining
Terminal, all with an object of forcing or requiring Terminal to cease doing
business with Joseph Todaro or any other person, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) and
(ii) (B) of the Act.
4. The unfair labor practices of Respondent set forth above, occurring in con-
nection with the operations of Terminal found above, have an intimate and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce within the meaning of Section 2(6) and (7) of the Act.
For these reasons, I also reject Respondent's argument that its primary purpose was
to "insure" that Todaro would sign up with the Union and not "hedge on entering into
this contract" but accept the entire standard contract offered by the Union The same
considerations rule out a finding of legitimate "common-situs" picketing under the tests
set forth in Moore Drydock Company, 92 NLRB 547, 549
a'' The fact that the picketing was not successful in inducing a work stoppage does not
detract from the fact that the necessary effect of the picketing activity was to induce and
encourage employees to engage in such stoppage, in violation of the Act. See Perfection
Mattress A Spring Company, 125 NLRB 520, 524.
BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 923
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and on
the entire record in the case, I recommend that Building Service Employees Inter-
national Union, Local 32-J, AFL-CIO, its officers, agents, representatives, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) -Engaging in, or inducing or encouraging individuals employed by Terminal
Barber Shops, Inc., or any of its subsidiaries, or by any other employer or person
engaged in commerce or in any industry affecting commerce, to engage in, a strike
or a refusal in the course of their employment to work or perform any services.
(b) Threatening, coercing, or restraining Terminal Barber Shops, Inc., or any of its
subsidiaries, or any other employer or person engaged in commerce or in an industry
affecting commerce; where, in either case, an object thereof is to force or require
Terminal Barber Shops, Inc., or any of its subsidiaries, or any other employer or
person, to cease doing business with Joseph R. Todaro or any other person.
2. Take the following affirmative action which will effectuate the policies of
the Act:
(a) Post in Respondent's business offices and meeting halls, copies of the notice
attached hereto marked "Appendix." Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall, after being duly signed by Respond-
ent's authorized representative, be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are customarily, posted.
Reasonable steps shall be taken to insure that such notices are not altered, defaced,
or covered by any other material.
(b) Furnish to the Regional Director for the Second Region signed copies of the
aforementioned notice for posting by Terminal Barber Shops, Inc., its subsidiaries,
and Joseph R. Todaro, they being willing, in places where they customarily post
notices to their respective employees. Copies of said notice, to be furnished by said
Regional Director, shall, after being signed by Respondent as indicated above, be
forthwith returned to said Regional Director for disposition by him.
(c) Notify the said Regional Director, in writing, within 20 days from the date of
receipt of this report, what steps Respondent has taken to comply herewith.
I further recommend that, unless Respondent shall within 20 days from the date of
receipt of this report, notify said Regional Director, in writing, that it will comply
with the foregoing recommendations, the National Labor Relations Board issue
an order requiring Respondent to take the action aforesaid.
APPENDIX
NOTICE TO ALL MEMBERS OF BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 32-J, AFL-CIO, AND TERMINAL BARBER SHOPS , INC., AND ITS SUBSIDIARY
CORPORATIONS, AND ALL THEIR EMPLOYEES, AND JOSEPH R. TODARO
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Relations
Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959,
we hereby notify you that:
WE WILL NOT engage in a strike , or induce or encourage individuals employed
by Terminal Barber Shops , Inc., or any of its subsidiary corporations , or by any
other employer or person engaged in commerce or in an industry affecting com-
merce, to engage in a strike or a refusal in the course of their employment to
work or perform any services , or threaten , coerce , or restrain Terminal Barber
Shops, Inc., or any of its subsidiary corporations, or any other employer or
person engaged in commerce or in an industry affecting commerce, where, in
either case , an object thereof is to force or require Terminal Barber Shops, Inc.,
or any of its subsidiary corporations , or any other employer or person , to cease
doing business with Joseph R. Todaro or any other person.
BUILDING SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 32-J, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.