Carpet Layers, Local 1238

National Labor Relations Board - Board Decisions

Aug 10, 1966

160 N.L.R.B. 475 (N.L.R.B. 1966)

CARPET LAYERS, LOCAL 1233 475
WE WILL NOT tell our employees that production workers will not be per-
mitted to perform maintenance work, that they will be replaced, that the plant
will be closed and that the president will pull the switch if they choose to be
represented by a union, promise our employees raises or grant them wage
increases for the purpose of persuading them not to join or assist a union, or
in any other manner interfere with, restrain, or coerce our employees in the
exercise of their rights to self-organization , to form, join, or assist any labor
organization , to bargain collectively through representatives of their own
choosing , to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain from any or all of
such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of any labor organization.
SAMUELS & COMPANY, INC,
Employer.
Dated------------------- By-------------------------------------------(Repiecrutatn'e) (Title)
NOTE -Notify the above -named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act , as amended , after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76102, Tele-
phone 335-4211, Extension 2145.
Carpet, Linoleum & Soft-Tile Layers Local 1238 and its agent,
Robert T. Wolfe and Nielsen Bros ., Inc. Case 19-CC-273. Au-
gust 10, 1966
DECISION AND ORDER
On November 2, 1965, Trial Examiner David F. Doyle issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent Union had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent Union filed excep-
tions to the Trial Examiner's Decision, with a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Jenkins, and Zagoria].
The 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 Trial
Examiner's Decision, the exceptions and brief, and the entire record
160 NLRB No. 39
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order.]
1 Member Fanning concurs in this Decision in view of the record before the Board and
In the absence of evidence establishing that Nielsen was a joint employer with J & J and
Master of the employees represented by the Respondent, or that Nielsen was an ally of
J & J and Master. In this connection, the 'Respondent neither pleaded nor attempted to
prove that Nielsen, J & J, and Master were or have been joint employers Furthermore,
while Respondent, in its pleadings, offered as an affirmative defense that Nielsen, J & J,
and Master were allies, Respondent offered no evidence to establish such defense, and the
evidence presented in this proceeding, including the stipulation of facts, was directed to
proving that J & J and Master were in fact independent contractors. Moreover, Respond-
ent made no exception to the Trial Examiner's failure to consider the validity of such
defense In these circumstances, Member Fanning finds it unnecessary to determine
whether a different holding would be appropriate if Nielsen was in fact a joint employer
with, or an ally of, J & J and Master.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding with all parties represented was heard by Trial Examiner David
F. Doyle in Seattle, Washington, on June 22, 1965, on complaint of the General
Counsel and answer of the Respondents. The issue litigated was whether the
Respondents'had violated Sections 8(b)(4)(i) and (ii)(B) and 2( 6) and (7) of the
Act, by certain conduct more fully described hereinafter.'
At the hearing, the parties were represented by counsel and were afforded a full
opportunity to introduce evidence , to examine and cross-examine witnesses, and to
file briefs on the issues . The parties filed well-reasoned briefs which have been care-
fully considered.
Upon the entire record and upon my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF NIELSEN, J & J, AND MASTER
The complaint and certain admissions in the answer establish the following facts:
Nielsen is a Washington corporation with its principal office at 2032 NW. Market
Street, Seattle, Washington. It is engaged at that location and at three additional
locations in the Greater Seattle area in the retail sale of carpeting. During the year
prior to the issuance of the complaint, Nielsen purchased and received directly from
points outside the State of Washington carpeting and other materials valued in
excess of $50,000, and during the same period had a gross volume of business
exceeding $500,000.
John A. Anderson, an individual proprietor doing business as J & J, has its princi-
pal office in Seattle, Washington, and is engaged in the business of laying and
installing carpeting.
Robert Alley and Niel Hollow are partners doing business as Master Carpet
Service, herein called Master, and have a principal office at Seattle, Washington,
and are engaged in the business of laying and installing carpeting.
1 In this Decision , Nielsen Bros , Inc , is referred to as Nielsen ; a business firm doing
business as J & J Carpet Service is referred to as J & J ; and a second business firm doing
business with Nielsen named Master Carpet Service is referred to as Master , Carpet,
Linoleum & Soft-Tile Layers Local 1238 is referred to as the Union , and Robert T Wolfe,
agent of the Union, as Wolfe ; the National Labor Relations Board, as the Board, the
General Counsel of the Board and his representative at the hearing as the General
Counsel , and the Labor -Management Relations Act, as amended , as the Act
The original charge in this proceeding was filed on February 15, 1965 An amended charge
was filed on March 8, 1965, and a second amended charge was filed on March 19, 1965
The complaint herein was issued by the Regional Director , Region 19, on March 30, 1965
It should be noted that all dates in this report are in the year 196 '5 unless specified other-
wise The name of Wolfe , business agent of the Union , was corrected on motion at the
heating to Robert T Wolfe, not 'Robert F. Wolfe
CARPET LAYERS, LOCAL 1238 477
Upon the pleadings and the record as a whole, it is found that Nielsen, J & J,
and Master are and at all times material herein have been employers, and Nielsen
is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded, and 1 find, that the Union is, and at all times material herein has
been, a labor organization within the meaning of Section 2(5) of the Act.
The pleadings also establish that Respondent Wolfe is, and at all times material
herein, has been the business representative of the Union and its agent within the
meaning of Sections 2(13) and 8(b) of the Act.
It is also established by the pleadings and the record herein that at all times
material to the issues, the Union has been the recognized collective-bargaining
representative of the employees of both J & J and Master, who are employed as
journeymen carpetlayers, apprentices, or helpers. It is also established that the
Union has been and is a party to collective-bargaining contracts with J & J and
Master, covering these employees.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issue
The complaint in substance alleges that (1) for a period of time prior to Feb-
ruary 15, the Union had been engaged in a labor dispute with J & J and Master,
concerning the failure of the later companies to tender timely payment of moneys
due for health, welfare, and pension benefits under the collective-bargaining con-
tracts referred to above; and (2) beginning on February 15, and continuing until
March 23, the Union, under the direction and supervision of Wolfe, picketed
Nielsen at its retail store at 2032 NW. Market Street, Seattle, Washington, daily
except Sundays and Mondays, in support of the Union's demand that Nielsen enter
into a contract with the Union, whereby Nielsen would guarantee the payment of
the aforementioned benefits by J & J and Master or by any other contractor
utilized by Nielsen to install carpeting sold by it.
In connection with the last statement it should be noted that shortly after the com-
mencement of the picketing at Nielsen, the arrearages of payments were fully paid
up by J & J and Master, but that the picketing continued until enjoined by the
appropriate U.S. District Court on March 23, 1965.
The General Counsel contends that this picketing had as an object: (a) to force
or require Nielsen to cease doing business with J & J or Master, or (b) to force
and require customers and suppliers of Nielsen to cease doing business with
Nielsen, thereby constituting conduct in violation of Section 8(b) (4) (i) and (ii)B
of the Act.
The Union in its answer alleged and at the hearing contended that: (1) the sole
purpose of its picketing was to support the Union's demand that Nielsen assume its
proper responsibility for the costs of installing the carpeting it sold to its customers
on an installed basis; and that the payment of arrearages of sums due the Union by
J & J and Master was immaterial to the objects and purposes of its picketing; (2)
that the Union's conduct at all times was primary in nature and protected by the
Act; and (3) that the General Counsel has not established the allegations of the
complaint by a preponderance of the evidence.
B. The stipulation of facts
The facts of this controversy are set forth in a stipulation of counsel and in the
relatively brief testimony of several witnesses. This testimony is of such a nature,
that it is, for all practical purposes, undisputed.
The stipulation of counsel sets forth the main substance of the controversy. This
stipulation reads as follows: 2
Mr. CASSIDY: In an off-the-record discussion with General Counsel a stipula-
tion was prepared and I will now proceed to read it into the record.
Nielsen, a Washington corporation, is engaged in the retail sale of carpeting.
Its principal office and one of its retail outlets is located at 2032 Northwest
2 The stipulation is set forth verbatim, except that I have deleted some repetitious ref-
erences to the full names of the business concerns and the Union ; no other change has been
made.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Market Street , Seattle, Washington . Nielsen's other stores are located in Lynn-
wood , Bellevue and Burien, Washington , but the picketing here, involves only
its store at 2032 Northwest Market Street, Seattle, Washington.
For many years prior to February 15, 1965, Nielsen has contracted with
several independent contractors to lay and install carpeting sold by it. At all
times material herein Nielsen has utilized two independent contractors for the
purpose, namely , J & J and Master.
Nielsen has agreed to give J & J and Master first call on all installation
requirements.
J & J, the sole proprietorship of John A . Anderson , maintains an office in
his home and the shop premises adjacent to Nielsen 's Lynnwood store. The
shop consists of approximately 900 square feet of space leased from Nielsen at
the rate of $ 50 per month . J & J owns two panel trucks and installation tools
and customarily employs two employees . By oral agreement with Nielsen,
J & J furnishes installation material such as tack strips , tapes, nails and Nielsen
furnishes the carpeting , pad and necessary metal trim. Nielsen does not super-
vise the installation but inspects the final product before payment . Nielsen pays
J & J at the rate of $ 1.30 per yard unless another rate is specifically negotiated
for carpet installation , and no other payment is made by Nielsen . J & J main-
tains its own books and records, prepares its own payroll , submits necessary
wage and tax withholding , and pays for all maintenance and insurance costs.
Nielsen keeps no records for, makes no purchase for, nor furnishes any service
to J & J , except the payment of the flat rate installation fee and on occasion
calls to the Union for permission of its contractors ' employees to perform
overtime work.
At all times material , the Union has been the collective bargaining repre-
sentative of the carpet layers, apprentices and helpers employed by J & J and
Master and has had written collective bargaining contracts with J & J and
Master. At various times prior to February 15, the Union has alleged that
J & J and Master have failed to make timely payments to the health and wel-
fare trust fund and to the pension plan, trust fund, as required under said
collective bargaining agreements . Since February 15, all delinquencies have
been paid.
The Union commenced picketing Nielsen on February 15, 1965, and con-
tinued the picketing as alleged in the complaint and admitted in the answer.
Nielsen employs one individual in its warehouse who cuts and on occasion
sews carpeting in the warehouse , but does not directly employ employees who
install carpeting at customers ' premises.
TRIAL EXAMINER : All right, we will stop there for a moment.
Mr. NIELSEN : I don't have any corrections to make.
Mr. CASSIDY : That is the end of the stipulation.
It seems to me that this is a proper place to note that the record does not disclose
the number of salespersons , etc. employed by Nielsen , but it is certain , that at least
Jerry E. Reep was employed as a salesman by Nielsen during March , when the
picketing was proceeding . Reep testified herein.
C. The testimony
In addition to the stipulation , Lloyd J. Nielsen , one of the brothers , testified
without contradiction as to the commencement of picketing at his Market Street
store. Nielsen testified that on Monday, February 15, 1965, he was at home at
approximately 9:30 in the morning when he was notified by his brother and partner,
John Nielsen , that the store was being picketed . He went to the Market Street store
immediately and took a good look at the picket. He then asked John why the
store was being picketed . When John said that he did not know, the witness then
telephoned to Robert Wolfe, the business agent of the Union. The telephone con-
versation with Wolfe took place about noontime . Nielsen asked Wolfe why his
store was being picketed , and why they had not been notified in advance that there
was some grievance . Wolfe said that the picket sign was explanatory . Nielsen had
noticed that the picket sign bore the following legend:
NIELSEN BROS . NON-UNION
DOES NOT HAVE CONTRACTS WITH CARPET -LINOLEUM
AND SOFT-TILE LAYERS LOCAL 1238.
Nielsen , in this phone conversation, told Wolfe that his company did not hire
carpetlayers and had no reason to have a contract with the Union . Wolfe said, that
CARPET , LAYERS, LOCAL 1238 479
the reason the Union was picketing Nielsen , was that the Union wanted Nielsen,
"to have a contract to guarantee the payment of health and welfare , wages and all
fringe benefits , the same as Frederick and Nelson had," with the Union . (Frederick
and Nelson is a large department store in Seattle which sells carpets.)
Nielsen then told Wolfe that he still felt that as long as his company did not
hire carpetlayers , they were not obligated to have such a contract with the
Union. Wolfe said that J & J and Master , the contractors with Nielsen , were not
paying their health and welfare fees and that the Union was forced to sue them to
collect . Nielsen replied that the payment of the health and welfare and'pension
fees of J & J and Master was not his responsibility.
Thomas P. Nielsen , the second partner, testified to an incident which occurred on
March 17, at the Market Street store . On that date the store was still being picketed.
On that date the witness received a telephone call from the truck dispatcher of a
company, which was engaged in delivering some carpet to the store . The dispatcher
told Nielsen that they did not want to deliver the roll of carpet to the store because
the store was being picketed . Nielsen told the dispatcher that some other trucks
had delivered carpeting without incident . Then the dispatcher said that the truck
would deliver the carpet but not at the front door, the usual point of delivery; the
truck would go around the corner from the store and Nielsen could pick up the
carpet at that point. In accordance with this plan, the truckdriver drove around the
corner, onto NW. 56th Street and Thomas Nielsen and the driver pulled the roll
of carpet out of the truck, and carried it across an alley, and into the back entrance
of the store.
In the course of cross-examination , Thomas Nielsen admitted that an advertise-
ment in the Seattle Times of Thursday , March 18, was authorized by the Com-
pany. This advertisement states the following:
We measure it!
We sew it!
We install it!
We guarantee it!
All at one low
package price!
Thomas Nielsen also admitted that between February 15 and March 23, the
Company placed in the front window of the Market Street store a card reading
"THIS IS A UNION SHOP ." This was a card of the conventional type; and had
been issued by the Union to Master . It was stipulated that this card had been
received from Master by Nielsen.
Floyd E. Reynolds testified that he was a truckdriver for Interstate Freight Lines
and on one occasion he had delivered carpet to Nielsen , by delivering it to a street
near an alley at the rear of the store . He helped Thomas Nielsen carry the carpet-
ing across the alley and into the rear door of the store.
Jerry L. Reep testified that he had been employed as a salesman by Nielsen dur-
ing the picketing in March. He testified that he made a call at the home of a cus-
tomer during this period. The customer was satisfied with the carpeting , but then
told Reep that he would not place his order with the Company , "until it had settled
its labor trouble."
Robert T. Wolfe was called as a witness both by the General Counsel and counsel
for the Union . When called by the General Counsel he testified that he was an
officer of the Union; and he identified a copy of a contract between the Union and
the Employers of Linoleum Layers Local No. 1238, of Seattle. He said that the con-
tract was one which the Union had with certain employers in the linoleum and
carpet industry in the Greater Seattle area.
In this document there is the following provision:
1. Contract Piecework
Where an employer contracts out any of the work covered by this agree-
ment, he shall require as a condition of the sub -contract , that the subcontractor
affoid to its employees the wages , hours and working conditions contained in
this agreement . In the event that the subcontractor fails to provide such wages,
hours and working conditions to its employees , the original employer shall
remain liable for such wages, hours and working conditions.3
3 This contract is in evidence as General Counsel ' s Exhibit 2.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After having his attention called to the paragraph , Wolfe was asked by the Gen-
eral Counsel if that paragraph represented the kind of agreement or obligation that
the Union wanted Nielsen to assume with respect to the contractors that it utilized
in the installation of the carpeting which it sold? The witness answered , "Yes, we
wanted an agreement that they would be responsible."
The next question put to the witness was by counsel for the Union . He asked
the witness to read the paragraph again and to explain his answer in regard to this
specific paragraph . Wolfe answered , "Well I have read it. We were not interested in
the union security, other thmgs that are in this agreement . That is why I answered
the way I did, we wanted a contract that they would be responsible for the payment
of wages and fringe benefits."
On being recalled later as a witness by counsel for the Union, Wolfe testified
that he was the financial secretary and business representative of the Union and its
chief executive officer. He stated that he authorized the picketing at the store of the
Company and he instructed the picket to talk to no one and to answer no questions.
He instructed the pickets further, that deliveries were to be permitted to the store;
if the drivers of delivery vehicles were asked if they could go through the picket
line, he was to answer in the - affirmative ; any other questions were to be referred to
Wolfe, himself . The picket was directed to patrol only in front of the store. Wolfe
said that on several occasions he received phone calls from trucking companies
inquiring about making deliveries at the store and he told them that they could
make deliveries because the Union was only advertising to the public . He also
stated that he bad never discussed the picketing with the employees of Nielsen.
Wolfe also explained the mechanics of the collection of health, welfare , and pen-
sion payments . He said that these payments were made to a board of trustees, who
administer these funds . The trustees are chosen by joint action of the Union and
the employers . If an employer became delinquent in the payment of health, welfare,
or pension payments , the administrator of the plan or the trustees notified the
employer by mail that he was delinquent . If the delinquency continued, the
employer was sent a second notice of delinquency . If the employer continued to be
delinquent for a period of 90 days , then the matter was turned over to the attorney
for the trustees of the fund who instituted legal action for collection . Wolfe said
that the trustees had on occasion in the past started lawsuits for the collection of
such arrearages but that the Union itself did not initiate lawsuits to collect these
payments.
Wolfe then testified that, "The purpose of the picketing was to let people know
that Nielsen Bros. was not responsible for the labor they sold." He also stated that
there was no action that J & J or Master could take which would have brought
about the removal of the picket line. Wolfe again reiterated that the Union in its
picketing sought, "an agreement that they ( Nielsen ) would be responsible for the
labor they sold." Wolfe stated that the Union did not seek to have Nielsen cease
doing business with J & J and Master, because members of the Union were
employed by the latter two firms.
On cross-examination by the General Counsel Wolfe stated , that at a meeting in
January the membership of the Union authorized the executive board to expend
some of the money in the union defense fund to picket some employers , particu-
larly a class of employers who utilized contractors , and who had not obligated them-
selves to guarantee the payment of the Union's wages and fringe benefits, including
the payment of certain sums for health , welfare, and pensions.
Wolfe testified further, that pursuant to this authority he decided that the Union
would picket Nielsen. At the time, J & J and Master were delinquent in paying con-
tributions to the health and welfare trust and to the pension trust. Wolfe said that
in January , the trustees had sued J & J and Master 4 and ultimately collected the
indebtedness which those firms owed to the trustees . After some consultation with
counsel for the Union as to the progress of this lawsuit the witness replied that, "we
had already taken care of the collection problem before we ever started picketing,"
at Nielsen's.
As the reader must have noted , there exists no substantial conflict in the testi-
mony of the witnesses . The brothers Nielsen , Reynolds, and Reep testified candidly,
succinctly , and to the point. This record contains not a scintilla of any evidence
which would cast any doubt upon the veracity and accuracy of this testimony. I
credit the entire testimony of the named witnesses.
4 At that time Master was called Carpet Craft.
CARPET LAYERS, LOCAL 1238 481
Robert T. Wolfe also testified in a candid and frank manner. I am willing to
credit all of his testimony except that portion which deals with the object of the
Union in the picketing of Nielsen. That point is the crux of this case, and in my
judgment, the Union's conduct in this picketing, had a much wider and broader
object than Wolfe in his testimony, either knowingly or unknowingly, admitted. My
reservation on this point is explained at some length hereinafter.
Concluding Findings
Upon a consideration of the evidence, certain basic facts of this case are clearly
established. First, it is admitted that the contractual arrangements of Nielsen, J & J,
and Master had existed for a number of years prior to the commencement of
this particular picketing. Second, it must be noted that both J & J and Master
recognized the Union and had a contract with the Union which governed wages,
hours, and working conditions of the employees of J & J and Master who worked
at the trade of laying carpet or linoleum. Apparently the relationship of Nielsen, J & J,
Master, and the Union was satisfactory, or at least uneventful, until the initiation
of the picketing here under scrutiny. Third, it appears certain, beyond any question
of doubt, that the act which precipitated the present controversy between Nielsen
and the Union, was the failure of J & J and Master to pay money-those sums
which those companies should have paid to the health and welfare trust plan and
the pension trust plan. Stated simply, those two companies breached their contract
with the Union in regard to the payment of those sums. In his testimony, Wolfe
stated that when such a delinquency occurred, the trustees of the funds gave a
series of notices of delinquency to the delinquent employer and when payment was
not subsequently made, the trustees of the plan then instituted suit for the money
in the State courts, on the basis of the contract. Wolfe testified that in a prior year,
the trustees of the health and welfare plan and the pension plan had been forced to
take legal action against J & J and Master for the collection of delinquent payments.
Indeed, when J & J• and Master, again became delinquent to initiate the present
controversy, the trustees promptly placed the collection of these sums in the hands
of their attorney, and these arrearages were paid by J & J and Master, prior to, or
shortly after, the initiation of the picketing at Nielsen.
To all of these events Nielsen was a complete stranger. Nielsen employed no
carpetlayers, so it came as quite a shock to the brothers to find their store picketed
on the morning of February 15. Upon a consideration of all the testimony, it
appears that this picketing was in the nature of a most dubious experiment on the
part of the Union. J & J and Master had breached the contract, but through legal
action instituted by the trustees, they had been brought to account and paid in full.
At that point, the Union decided that it would avoid the law's delays and burdens
in the future by having a more responsible party act as surety or guarantor for J & J
and Master. As the Union viewed the field of possible guarantors , Nielsen, as a
contractual relation of J & J and Master, became the logical target. Nielsen had no
contractual relations with the Union, and had done nothing adverse to any interest
of the Union. Apparently, Nielsen's only offense and only attraction was that it
was a more responsible, and perhaps more solvent, employer than J & J and Master.
Be that as it may, it is clear in the testimony of Wolfe, repeated several times , that the
Union's demand on Nielsen was that it become the guarantor or surety for I & J and
Master as to the payment of all sums due under the contract between those two
companies and the Union, a document to which Nielsen was in no way privy. Niel-
sen was not agreeable to being forced by picket-line activity to become the guarantor
or surety of J & J and Master, so it filed the instant charge with the Board.
In a well-written brief, the Union sought to justify its conduct on the ground that
the Union had a primary dispute with Nielsen; that this picketing was conducted in
a peaceful manner at the premises of Nielsen, the primary employer, and that the
picketing did not have as an object, one which is proscribed by the Act. In support
of this argument, the Union relies on the Board 's Decision in Local 1066, ILA
(Wiggin Terminals, Inc.), 137 NLRB 45. However, I am not persuaded to this view
for several reasons.
The General Counsel contends that the conduct here disclosed is a violation of
Section 8(b)(4)(i) and ( ii) (B), and he relies substantially on the Board's Decision
in Bakery Wagon Drivers Local Union No. 484 (Sunrise Transportation Company),
137 NLRB 987. This case is very close to being on all fours with the facts of the
instant case . In Bakery Wagon Drivers Local Union No. 484, supra, the union
257-551-67-vol. 160-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sought to enforce an agreement with Continental Baking Company under which Con-
tinental had orally committed itself to be responsible for the terms and conditions
under which the drivers of any independent carrier utilized by the company in the
delivery of its products worked and more particularly, Continental agreed that the
terms and conditions of the contracts between the independent carriers and the union
would be the same as those in the contract between Continental and the union This
oral agreement wa's honored by the parties for several years and then Continental re-
fused to honor it, when one of its contract carriers, Sunrise Transportation, was al-
legedly delinquent in not paying Bakery Wagon Drivers wages and fringe benefits.
Sunrise Transportation employed some driver-salesmen of Bakery Wagon Drivers
Local 484 and one employee who belonged to an over-the-road local of the Teamsters.
The union then induced a partial strike of Continental's employees for the purpose,
among other things, of having Continental renew its commitment to guarantee the
payment of wages, health and welfare, etc., by its contract carriers. The Board found
that such conduct constituted a violation of Section 8(b) (4) (i) and (ii) (A),
because it involved an object of entering into an illegal "hot cargo" agreement. The
Board also found that the Union's conduct violated Section 8(b)(4) and ( ii) (B),
stating:
We find, further, that Respondent's admitted inducement of the employees of
Continental and Oroweat to engage in partial strikes violated Section 8(b)(4)
(i) and (ii) (B) of the Act. With respect to the inducement of Continental's
employees, Respondent concedes that it was seeking to compel Continental
either to reinstitute the guarantee or to have its delivery services performed in
accordance with its own contract with Respondent Union. It is obvious that the
alternative avenue of conduct left open to Continental would require a cessation
of business with Sunrise. It is therefore apparent that an object of Respondent's
conduct was to force Continental to cease doing business with Sunrise.
The Board's decision was enforced in Bakery Wagon Drivers Local Union No.
484 v. N.L.R.B., 321 F.2d 353 (C.A.D.C.), where the court observed as to the
8(b)(4)(B) violation:
IV. The union further contends that the Board erred in its application of
subsection (B) to the events at Continental. The Board opinion, in pertinent
parts, states:
. With respect to the inducement of Continental's employees, Respondent
concedes that it was seeking to compel Continental either to reinstitute the
guarantee, or to have its delivery services performed in accordance with its
own contract with Respondent Union. It is obvious, that the alternative
avenue of conduct left open to Continental would require a cessation of busi-
ness with Sunrise. It is therefore apparent that an object of Respondent's con-
duct was to force Continental to cease doing business with Sunrise. [Citing
Carpenters' Union v. Labor Board, 357 U.S. 93, 42 LRRM 2243 (1958), com-
monly known as the Sand Door case.] .
The union contends that it has a "legitimate primary dispute" with Conti-
nental, and that the cessation of business with Sunrise is purely an incidental
result, rather than an "object," of its activities.
The union never, however, states very clearly the exact nature of the "legiti-
mate primary dispute" with Continental. It did not become a legitimate primary
dispute simply because the union was attempting to obtain or enforce an agree-
ment with Continental. Carpenters' Union v. Labor Board, supra; Labor Board V.
Denver Bldg. Council, supra, Note 9. The union seems to suggest that it was only
demanding compliance with the blanket no-subcontracting clause, which would be
legal. This contention is refuted by the record, which clearly shows that the union
was demanding not just a blanket no-subcontracting clause, but the cessation of
business with non-complying subcontractors. We do not understand the Board
order to prohibit the union in the future from demanding compliance with the
no-subcontract clause. As we understand the Board's order, it only prohibits
such a demand when it is used to compel Continental to interfere in the labor
disputes of Sunrise. In other words, the union may not threaten Continental
with enforcement of the blanket no-subcontracting clause in order to effectuate
an arrangement whereby Continental will subcontract only with employers
with whom the union has no labor dispute. Any such use of the clause would
CARPET LAYERS, LOCAL 1238 483
destroy the basic premise upon which subcontracting clauses, which prima facie
violate subsection ( B), are permitted , i.e., that the union is seeking to protect
some legitimate economic interest of the employees of Continental , and not
just using its position at Continental to enforce its demand against subcon-
tractors.
Upon the facts here, in my judgment the rationale of Wiggin Terminals , supra,
cannot be accepted ; the Board 's later decision in Bakery Wagon Drivers Local
Union No. 484, supra , enforced by the Court of Appeals seems much more
persuasive.
Furthermore , it has been said that a determination of what is primary and what
is secondary activity in a labor dispute must be based on a consideration of all the
facts in each case . In this case , it seems to me that the very terminology used by
the Union in its demand and the contractual arrangements demanded by the Union
requires a finding that J & J and Master were the primary employers , and primary
disputants . J & J and Master employed members of the Union , and had contractual
relations with the Union . J & J and Master failed to pay certain sums according to
the contract and the trustees took legal action against J & J and Master to collect
the sums due. To this point, the trustees ' action was in accordance with all tradi-
tional proceedings at contract law-the party to the contract who promised payment
is the party primarily liable for fulfillment of the contract . In the law of suretyship
the aggrieved party to contract may not maintain an action against the guarantor
or surety until legal remedies against the primary obligor have been exhausted.
Similarly here , the Union sued the parties with whom it had a dispute-a dispute
based upon the nonperformance of the two employers . Then , not satisfied with this
legal remedy , the Union sought by its picket line to force Nielsen to become the
guarantor or surety for the payment of health and welfare and pension fees by J & J
and Master . In my judgment , this conduct was in violation of the Act and dis-
ruptive of all stability in labor relations . It violated Section 8(b) (4) (i ) and (ii)
(B) because, to paraphrase the Decision of the Court of Appeals in Bakery Wagon
Drivers Local Union No. 484, it is clear that the Union picketed to force Nielsen
to guarantee the payments of J & J and Master , but in this conduct there existed
an implicit alternative open to Nielsen , to cease doing business with J & J and
Master, and then perform carpetlaying itself with its own employees , or obtain the
services of a new contractor-installer of such financial reliability as to satisfy the
Union. Therefore , I conclude that an object of the Union 's picketing was to force
Nielsen to cease doing business with J & J and Master . This conduct of the Union
violated the Act as set forth in the complaint.
Also, this conduct , if declared lawful , would be disruptive of all presently stable
labor relations . Employing these picket line tactics , any union could force and
require our largest manufacturing companies, such as the industrial giants in the
automobile , aircraft , or missile fields to become guarantors for the payments of
health, welfare, and pension funds for a veritable host of independent contractors
who supply component parts or perform some special service for the industrial giant.
The refrain of the Union 's argument here, is that it sought to force Nielsen to be
responsible for the labor that went into the completed job or product . While this
may sound somewhat plausible, when first heard , it loses all practicality and per-
suasiveness when applied to anything except the simplest type of employer relation-
ship. In the complexity of our present industrial life, the Union 's surface , argument
cannot be accepted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union , as set forth in section III, above , occurring in connec-
tion with the business operations of the Company , J & J, and Master described in
section I, above, have a close, intimate , and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Union has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following conclusions of law:
1. Carpet, Linoleum & Soft-Tile Layers Local 1238 is a labor organization within
the meaning of Section 2(5) of the Act.
2. Nielsen Bros., Inc., J & J Carpet Service, and Master Carpet Service are
employers and Nielsen Bros., Inc. is engaged in commerce within the meaning of
the Act.
3. By engaging in, or inducing and encouraging employees of Nielsen Bros., Inc.
to engage in, a strike or a refusal in the course of their employment to perform
services and by threatening, coercing, and restraining Nielsen Bros., Inc , with an
object of forcing or requiring Nielsen Bros., Inc., to cease doing business with J & I
Carpet Service and Master Carpet Service, the Union has engaged in unfair labor
practices within the meaning of Section 8(b)(4)(1) and (ii) (B) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Sections 2(6) and (7) and 8(b)(4) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case and pursuant to Section 10(c) of the Act and
in order to effecutate the policies of the Act, I hereby recommend that Carpet,
Linoleum & Soft-Tile Layers Local 1238, its officers, agents, representatives, suc-
cessors, and assigns, shall:
1. Cease and desist from: engaging in, or inducing or encouraging employees of
Nielsen Bros., Inc., or any other person engaged in commerce or in an industry
affecting commerce, to engage in, a strike or a refusal in the course of their employ-
ment to perform any services, or threatening, coercing, or restraining the afore-
mentioned employer by picketing the Market Street store, Seattle, Washington,
where an object thereof is forcing or requiring Nielsen Bros., Inc., or any other
person engaged in commerce to cease doing business with I & I Carpet Service or
Master Carpet Service.
2. Take the following affirmative action which is necessary to 'effectuate the
policies of the Act:
(a) Post in Respondent Union's business offices and meeting halls, copies of the
attached notice marked "Appendix." 5 Copies of said notice to be furnished by the
Regional Director for Region 9, after being duly signed by offical representatives
of the Respondent Union, shall be posted by the Respondent Union 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 by the Respondent Union to ensure that
such notices are not altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for Region 19, signed copies of said notices
for posting by Nielsen Bros., Inc., that company being willing, in places where
notices to employees are customarily posted. Copies of said notice to be furnished
by the Regional Director, shall, after being signed by Respondent Union as indi-
cated, be sent forthwith to the Regional Director for disposition by him.
(c) Notify the Regional Director for Region 19, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent ha staken to comply
herewith.6
IT IS FURTHER RECOMMENDED that unless the Respondent Union shall, within
20 days from the date of receipt of this Decision notify said Regional Director in
writing that it will comply with the foregoing recommendations, the National Labor
Relations Board issue an order requiring the Respondent Union to take the action
aforesaid.
In the event that 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 In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforieng an Order" shall be substituted for the words, "a Decision
and Order."
aIn the event that this Recommended Order is adopted by the Board, paragraph 2(c)
thereof shall be modified to read : "Notify said Regional Director, in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply herewith."
GROCERS SUPPLY COMPANY, INC. 485
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF
NIELSEN BROS ., INC., SEATTLE, WASHINGTON
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
Relations Act, as amended, we hereby notify you that:
WE WILL NOT engage in, or induce, or encourage employees of Nielsen
Bros., Inc., of Seattle, Washington, or any other person engaged in commerce
or in an industry affecting commerce, to engage in, a strike or in a refusal in
the course of their employment to perform any service for their employer or
threaten, coerce, or restrain Nielsen Bros., Inc., of Seattle, Washington, by
picketing its Market Street store, Seattle, Washington, where an object thereof
is forcing or requiring Nielsen Bros., Inc. or any other person engaged in com-
merce or in an industry affecting commerce to cease doing business with J & J
Carpet Service and Master Carpet Service, Seattle, Washington.
CARPET, LINOLEUM & SOFT-TILE LAYERS LOCAL 1238,
Labor Organization.
Dated------------------- By-------------------------------------------
ROBERT T WOLFF, Representative
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 327
Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-7542.
The Grocers Supply Company , Inc. and Office and Professional
Employees International Union, AFL-CIO, Petitioner. Case
g3-RC-2636. August 11, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer C. L. Mosher, of the National Labor Relations Board. The
Hearing Officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
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 Brown and
Zagoria].
Upon the entire record in this case, the Board funds :
1. The employer is engaged in commerce within the meaning
of the Act and it will effectuate the purposes of the Act to assert
jurisdiction herein.
2. The labor organization involved claims to represent certain
employees of the employer.
3. A question affecting commerce exists concerning the represen-
tation of certain employees of the Employer within the meaning of
Sections 9(c) (1) and 2(6) and (7) of the Act.
160 NLRB No. 41.