Carpet Layers, Local 1238

National Labor Relations Board - Board Decisions

Apr 10, 1969

175 N.L.R.B. 332 (N.L.R.B. 1969)

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpet , Linoleum and Soft Tile Layers Local No.
1238 and Robert A. Arnold d/b/a Arnold's
Carpet . Case 19-CC-386
April 10, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 18, 1968, Trial Examiner James R.
Webster issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a brief in support of its exceptions and
Respondent filed cross-exceptions and 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.
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 briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
CHAIRMAN MCCULLOCH dissenting:
Unlike my colleagues I would find that Robert
Arnold is an independent contractor and that
Respondent therefore violated Section 8(b)(4)(ii)(B)
when it picketed Vaughn with the admitted object of
forcing Arnold 's removal from the picketed project.
I reach this conclusion on the strength of the
following considerations : Arnold sets his own hours;
he works without supervision ; he uses his own
business truck , tools, and materials; he performs no
work on and makes no use of Vaughn's premises; he
has his own city business license and his own state
contractor ' s license; he does not work exclusively for
Vaughn and may refuse Vaughn's business; he
independently determines or negotiates with carpet
retailers (including Vaughn ) the charges for his
services for each job and the price per unit of work
varies from job to job; and he is paid for work
without any deductions for Social Security or other
taxes. Unlike my colleagues, I find no evidence that
Vaughn exercises meaningful control over the
manner or means by which Arnold performs his
work.' In reaching my conclusion I have taken into
account that 60 percent of Arnold's business
operations is performed for Vaughn. But,
particularly in the absence of any evidence that
Arnold is obligated to accept all of Vaughn's work
orders, I do not regard this as sufficient to
overcome the aggregate force of the other
considerations pointing to Arnold's status as an
independent contractor.
'Although Vaughn furnishes Arnold with a diagram showing how the
carpeting should be cut and pieced together , this is done only to enable
Vaughn to determine the amount of carpeting sold and does not indicate
that Vaughn retains control over the way that Arnold performs his work
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner. This case, with all
parties represented, was heard in Seattle, Washington, on
September 10 and 11, 1968, upon a complaint of the
General Counsel and answer of Carpet, Linoleum and
Soft Tile Layers Local No 1238, herein called
Respondent. The complaint was issued on June 26, 1968,
on a charge filed June 4, 1968 The complaint alleges that
Respondent threatened, coerced and restrained a general
contractor and a number of subcontractors and induced
and encouraged individuals employed by these contractors
to cease work for an object of forcing or requiring said
employers to cease doing business with Robert A Arnold
doing business as Arnold's Carpet, thereby engaging in a
violation of Section 8(b)(4)(i) and (ii) (B) of the National
Labor Relations Act, herein called the Act.
Briefs have been filed by the General Counsel and the
Respondent and they have been carefully considered.'
Upon the entire record and my observation of the
witnesses, I hereby make the following
FINDINGS OF FACT
1. THE BUSINESSES OF THE EMPLOYERS INVOLVED
Robert A. Arnold, an individual, is engaged in business
under the name of Arnold's Carpet, and is engaged in the
installation of carpeting in residences, apartment buildings
and other buildings. During 1967 he purchased from a
Seattle distributor supplies and materials consisting of
tack stripping, tubes of metal, cement, tape and staples of
a value of approximately $800. Arnold testified that as to
the source of these materials, "none that I know" was
manufactured in the State of Washington. Because of the
inconclusiveness and uncertainty of the testimony
regarding the source of supplies, I cannot find that they
originated outside the State of Washington.
Powell Construction Company, Inc. is a Washington
corporation engaged in the business of building homes and
apartment houses and related activities. In 1968 Powell
was engaged as owner and general contractor in the
'Counsel for the General Counsel filed a motion to correct transcript on
October 17, 1968 No opposition has been filed The motion has been
carefully considered and is granted
175 NLRB No. 50
CARPET LAYERS, LOCAL 1238 333
building of an apartment house near Seattle, Washington,
with which project this case is involved Among the
supplies and materials that Powell purchased for use on
this project were the following items which were
manufactured and shipped to Washington distributors
from points outside the State of Washington Hotpoint
electrical appliances consisting of ranges, garbage
disposals , refrigators and dishwashers and washers and
dryers of a value of $14,405.00.
The electrical subcontractor on this project was Fox &
Nystrom Electricians, a partnership. The following
materials used by said subcontractor on this project were
purchased from local distributors and were manufactured
and shipped from points outside the State of Washington:
(1) Copper wiring, plastic boxes, switch panels, connectors
and conduits of a value of $13,664.63, purchased from
Palmer Electric Company; (2) NuTone heaters, ventilating
fans and metal boxes of a value of $740.33, purchased
from Stusser Electric Company
The plumbing subcontractor on this project was
Mid-City Plumbing Company. The following materials
used by this subcontractor on this project were purchased
from local plumbing suppliers but were manufactured and
shipped from points outside of the State of Washington
(1) pipes, bathtubs, sinks, valves, and water tanks of a
value of $11,898.95, from Thrifty Supply Company; (2)
National water heaters of a value of $2,056.68 purchased
from Doyle Plumbing Supply Company; (3) pipes,
couplings, coil wire and other supplies of a value of
$956.19 purchased from Pacific Plumbing Supply
Company; (4) valves, pipe, faucets and other general
plumbing supplies of a value of $1,481.82 purchased from
Sea-Hi Supply Company; (5) pipes and nipples of a value
of $280.56 purchased from Puget Sound Pipe and Supply
Co
Vaughn 0. Eagon, doing business as Vaughn's Home
Decorating Center, herein referred to as Vaughn, was the
subcontractor for the installation of carpeting and
drapery. The carpeting was manufactured by J. P. Stevens
Company and the padding was manufactured by Air
Crafts Products Both items were manufactured and
shipped from points outside the State of Washington and
their value was $16,700. The drapery installed by Vaughn
was made by Consolidated Textile Corp. of Seattle,
Washington, from fabrics valued at $859.00 shipped by
Graber Manufacturing Company from the State of
Pennsylvania '
Cecil Powell of Powell Construction Company, J Burt
Fox of Fox & Nystrom Electricians, Herman H Gorlick
of Thrifty Supply Company and James P. Jones of
Mid-City Plumbing Company and Vaughn 0. Eagon of
Vaughn's Home Decorating Center testified that supplies
and materials mentioned above were not manufactured in
the State of Washington In view of the fact that each is
experienced in his respective field of the building and
construction industry and is knowledgeable of the sources
of supplies in his respective field, and secondly that
Respondent has not shown that any of these items were
manufactured or originated in the State of Washington, I
find that the supplies and materials mentioned above,
totalling $63,043 16 in value were shipped in interstate
commerce from points outside the State of Washington. I
'Vaughn purchased drapery accessories of a value of $350 from a Seattle
distributor , but there is no evidence as to the manufacturer of these items
In this connection Vaughn testified only that Graber Manufacturing
Company does not have a plant for the manufacture of drapery accessories
in the State of Washington
therefore find that Powell Construction Company Inc.,
Vaughn's Home Decorating Center and the other
subcontractors involved in the apartment project herein
were engaged thereon in commerce within the meaning of
Section 2(6) and (7) and 8(b)(4) of the Act.'
II THE LABOR ORGANIZATION INVOLVED
Carpet, Linoleum and Soft Tile Layers Local No 1238,
Respondent herein, is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1. Whether the employers involved on the Powell
apartment project were engaged in commerce within the
meaning of the Act.
2. Whether Arnold was an independent contractor or an
employee of Vaughn on said project, and if he was an
independent contractor, whether the picketing of the
Powell project on May 15, 1968 was for the purpose of
forcing or requiring Vaughn to cease doing business with
Arnold and/or for the purpose of forcing or requiring
General Contractor Powell and other contractors on the
project to cease doing business with Vaughn.
3. Whether Respondent induced or encouraged an
employee of subcontractor Fox & Nystrom to cease doing
work on May 15, 1968.
B. Arnold's Status as Independent Contractor or
Employee
For carpeting for the apartment house project involved
herein, General Contractor Powell went to a carpet
distributor in the Seattle area and picked out carpeting
and padding, but as he was unable to buy these materials
directly from the distributor, he contracted with Vaughn
Eagon of Vaughn's Home Decorating Center to obtain
and install the carpeting at a specified price per square
yard.
Vaughn operates a retail store selling carpeting, paint,
wallpaper, and other home decorating items, and he
subcontracts the installation of carpeting. For the past 2
1/2 years he has employed Arnold for this work, and he
contacted Arnold for the carpet installation on the Powell
project. He told Arnold that he had the job on a low
margin basis and that Arnold would have to figure it as
low as he could. Arnold looked at the plans, figured the
metal and materials and told Vaughn he could do it for
$1.35 per square yard, and that it would take 5 or 6 weeks
to complete Arnold's usual rate for residences is $1.50 to
$1 75 per square yard depending on conditions in the
residence
Approximately 60 percent of Arnold's business is with
Vaughn. Vaughn pays Arnold by check, usually weekly,
and makes no deductions for social security or income
tax When Vaughn sells carpeting at a specific price
including installation, he calls Arnold, Arnold checks his
calendar and indicates a date that he has available for the
job. Vaughn furnishes him with a diagram which, in order
to arrive at the total amount of carpeting sold, necessarily
shows how the carpeting should be cut and pieced
together.
'Siemons Mailing Service , 122 NLRB 81, Commission House Drivers,
Local 400, 118 NLRB 130
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence does not show that Vaughn sells carpeting
in any manner other than one where price includes
installation ; that is, the customers do not have to seek out
and contract separately for installation. The carpeting for
the Powell project was sold "installed."
On the day of installation, Arnold's practice is to pick
up the carpeting and padding in his own truck at the
distributor's warehouse or at Vaughn's warehouse. He
cuts, fits, and installs the carpet and pad. Vaughn does
not regulate or control Arnold's hours; Arnold usually
quits work at 5 p.m., but if he has another job on his
calendar for the following day, he works late. Vaughn
inspected Arnold's work on the Powell project, which was
the first big job Arnold has worked on for him, but on
small jobs, residential work, he calls the customers and
inquires if they are satisfied If there should be any
complaint about the installation work, Vaughn would
require Arnold to correct it without charge to Vaughn.
Arnold has a contractor's license from the State of
Washington. He owns his own carpet laying tools and
furnishes all materials such as step, metal and glue. He
works alone and does none of his work on Vaughn's
premises.
There is no absolute rule for determining whether one is
an independent contractor or an employee, but I find,
based on a consideration of the following indicia of status,
that Arnold's relationship with Vaughn on the Powell
project was that of an employee.
The most important and widely applied test for an
independent contractor relationship is that of right to
control, but in the instant case it is difficult to apply this
test in view of the absence of situations where control was
exercised or had to be exercised over the manner or
progress of the work. Vaughn furnishes Arnold with a
diagram showing how the carpeting should be cut and
pieced together. There is no evidence that Arnold had to
or could exercise independent judgment on the manner of
cutting and piecing together of the carpeting. Arnold is an
experienced and competent carpet layer, however, and
does not require Vaughn's attention to the procedures and
operations incident to the laying of the carpeting.
Vaughn's primary concern is a good job and a satisfied
customer Arnold uses his own tools, truck and supplies
and controls the time of his work. Vaughn's method of
payment to Arnold is weekly rather than by the job.
Vaughn sells carpeting "installed" and Arnold is his
installer; Arnold's business is not an independent and
distinct type of business from that of Vaughn The
customers look to Vaughn for any matter related to the
installation of the carpeting, as was the situation on the
Powell project when the Union objected to Arnold's
presence. This is indicative of the nature and extent of
Vaughn's control over the installation work.
Although the relationship of Vaughn and Arnold does
have some attributes of an independent contractor
relationship, I find from a preponderance of the evidence
that Arnold's relationship with Vaughn on the Powell
project was that of an employee rather than an
independent contractor.'
Christianson, foreman for Powell, that he was a union
representative, and he checked on the carpet laying
operations on the project. He told Christianson that there
was a nonunion man on the job, but made no statement of
consequences of this observation. I find that Nelson's
statement to Christianson contains no threat, coercion or
restraint within the meaning of Section 8(b)(4)(ii) of the
Act, and that no unfair labor practice was committed in
this context.'
On the next day, May 15, 1968, Respondent picketed in
front of the Powell project with a placard containing the
following language:
VAUGHN'S HOME DECORATING CENTER
UNFAIR
CARPET LAYERS LOCAL 1238
On that day in addition to Arnold, the following crafts
were working or scheduled to work: electricians employed
by Fox & Nystrom; plumbers employed by Mid-City
Plumbing Company, painters employed by H & H
Painting Company; a tile setter employed by Jayme
Floors Covering Company, carpenters and laborers
employed by Powell.
The electricians collected their tools and left the
project The plumbers arrived on the jobsite but left
without working. The painters completed a phase of their
work on the project and then left to work on another job.
Foreman Christianson asked his carpenters and laborers
to stay until they found out if the picketing was to be
removed, which they did.
The picketing started at about 10 or 11 a.m. Shortly
after it commenced, Foreman Christianson called General
Contractor Cecil Powell. Powell called Vaughn and they
made arrangements to meet at the jobsite at about 1.30
p.m. There they met and conversed with Union
Representative Nelson. Powell asked Nelson why they
were picketing, and Nelson replied that the man who was
laying the carpet was a nonunion man, and that according
to the rules of his Union no one could work on a job with
a nonunion man, that a tile setter employed by Jayme
Floor Covering Company had advised him that this
project was therefore a nonunion operation; that under
these circumstances it was impossible for the tile setter to
remain on the job, and that Respondent was picketing the
job because there was a nonunion man on the job. Nelson
stated that all Respondent wanted was a union man on
the job; that if Arnold were union , there would be no
objection; but inasmuch as he was not, they would have to
see to it that a union man laid the carpet.
Powell then told Vaughn that he was responsible to see
that the carpeting was put in and that he did not care who
did it but that he wanted the job completed. Nelson stated
that if Arnold would leave the job and not come back, he
would remove the picket. Vaughn talked the matter over
with Arnold and told him that he had no choice but to
remove him from the job Arnold then left; Nelson got the
picket and they departed. This occurred at about 2 p.m.
C. The Picketing on May 15, 1968
On May 14, 1968, Union Representative Don Nelson
came to the Powell project. He informed Chris
'Carpet Center, Inc, 170 NLRB No 93, N L R B v United Insurance
Co, 389 U S 1028, Restatement of the Law, Agency 2d, Vol 1, para
220
'Wyckoff Plumbing, 135 NLRB 329, Marshall & Haas, 133 NLRB
1144 I base identification of Nelson on testimony of Arnold who was
nearby during Nelson 's conversation with Christianson but did not hear
more than a few words of the conversation . Christianson reported later to
Arnold that Nelson had stated there would be picketing if Arnold did not
leave As this report is hearsay, I do not make a finding of fact based on
it Furthermore , it is noted that such a statement does not threaten an
illegal type of picketing
CARPET LAYERS, LOCAL 1238 335
The next day the various crafts returned to work on the
project, and Vaughn made arrangements to have the
carpeting installed by a union carpet layer
D. Conclusions as to Alleged Violation of Section
8(b)(4)(ii)(B) of the Act
Respondent's stated purpose for the picketing of May
15 was to cause Vaughn to terminate his relationship with
Arnold on the Powell project and to replace him with a
union carpet layer.' I have found, however, that Arnold
was Vaughn's employee on this project and not an
independent contractor, therefore, as between these two
there can be no violation of Section 8(b)(4)(ii)(B) of the
Act as there is no primary and secondary employer
relationship
The General Counsel also contends that Respondent's
picketing was directed toward General Contractor Powell
and other subcontractors on the job in an effort to have
them cease doing business with Vaughn. I find, however,
that Respondent's picketing at the project complies with
the standards for common situs picketing set forth in the
Board's Moore Drydock decision.' Arnold was engaged in
installation of carpeting for Vaughn on the project at the
time of the picketing; he was engaged thereon in the
normal business of Vaughn, the picketing was limited to
places reasonable close to the location of Vaughn's work
thereon; and the picket sign disclosed clearly that the
dispute was with Vaughn. But the Board has also held
that a Respondent may by other conduct on the picket
line or elsewhere manifest that ostensibly legal picketing
has a secondary boycott objective! In consideration of
this point I have carefully scrutinized Union
Representative Nelson's remarks to Foreman Christianson
on May 14 and his remarks to Powell on May 15, and
other alleged conduct of Respondent discussed in
paragraph E, for an indication that Respondent was
seeking to have Powell or other contractors cease doing
business with Vaughn in order to accomplish its objective
of causing Vaughn to replace Arnold with a union carpet
layer, but I find that there is insufficient evidence to reach
this conclusion. Nelson did not ask Christianson or Powell
to take any action against Vaughn to accomplish its
objective - the replacement of Arnold. I, therefore, find
that Respondent's picketing was "primary" and that
Respondent has not violated Section 8(b)(4)(u)(B) of the
Act.
E. Alleged Violation of Section 8(b)(4)(i)(B)
Alberton McDonald, an employee of Fox & Nystrom,
was employed on the Powell project on May 15, 1968,
when the picketing occurred He is a member of the
International Brotherhood of Electrical Workers. He went
to work that morning at about 9:30 or 10 a.m While he
was installing light fixtures, a person whom he did not
know came to him and informed him that a picket had
been put up. McDonald asked him if he would finish
installing the fixtures. The person told him to finish the
installation of the fixture he was then installing and then
to leave McDonald did so
McDonald described the person who told him to quit
working as about 6 feet 1 inch tall, weighing about 200
pounds and wearing a blue sweater and possibly glasses
Vaughn described Union Representative Nelson as being a
blond, heavyset, weighing about 215 to 220 pounds and
being about 6 feet or 6 feet l inch tall. Arnold testified
that on the day before, when Nelson was talking with
Christianson, Nelson was wearing a blue sweater and a
white tie.
Nelson was not called as a witness and was not
identified as being in the hearing room. 1 cannot accept
McDonald's description of the person who spoke with him
as an identification of Nelson, therefore I find that there
is insufficient proof that Respondent induced or
encouraged an employee of a secondary employer to cease
work on the Powell project!
F. Respondent's Conduct as a Violation of Section
8(b)(2) of the Act
Neither the charge nor the complaint alleges that the
unfair labor practice complained of constitutes a violation
of Section 8(b)(2) of the Act; nevertheless the conduct of
Respondent set forth in both the charge and the complaint
- that Respondent picketed Vaughn to cause him to
terminate his relationship with Arnold - clearly falls
within the proscriptions of Section 8(b)(2) of the Act, if it
is recognized that Arnold is an employee rather than an
independent contractor I have found that this was the
purpose for the picketing, and the fact that the charge and
the complaint allege that the conduct violates Section
8(b)(4) rather than 8(b)(2) would not preclude me from a
finding of a violation of Section 8(b)(2) if the employer
involved, Vaughn, fell within the Board's jurisdictional
standards. The conduct complained of, which could
constitute a violation of Section 8(b)(2) of the Act, is
specifically and clearly set forth in the charge and the
complaint, and the issues as to Respondent's conduct,
purpose and consequences thereof - elements of an unfair
labor practice under Section 8(b)(2) of the Act - were
fully litigated." But, the jurisdictional standard used in
secondary boycott cases, applied in paragraph I above,
would not be applicable in the absence of a secondary
boycott The total volume of Vaughn's business affecting
interstate commerce as shown herein is well below the
$50,000 criterion recognized by the Board for asserting
jurisdiction in such cases;" therefore, no violation of
Section 8(b)(2) of the Act can be found herein.
CONCLUSIONS OF LAW
1. On the Powell apartment project, the employers
involved meet the Board's jurisdictional standard applied
in cases involving violations of Section 8(b)(4)(B) of the
Act. Vaughn's Home Decorating Center, considered
individually, is not engaged in commerce within the
'Respondent ' s business manager , Robert T Wolfe, testified that when he
found out that Vaughn had the carpet laying contract on the Powell
project, he planned on putting a picket up and getting a contract with
Vaughn He did not directly testify that this was a purpose of the picketing
that occurred on May 15, and other evidence clearly indicates that the sole
purpose of the picketing of May 15 was to cause a termination of
Vaughn's relationship with Arnold on this project
'Moore Drydock Co, 92 NLRB 547
'Highway Truckdrivers and Helpers . Local No 107. 130 NLRB 943,
enfd 300 F 2d 317 (C A. 3), Wyckoff Plumbing , 135 NLRB 329
'McDonald also testified that this unknown person identified himself to
McDonald as a Business Manager with the Carpet Layers Union, but I
sustained Respondent 's objection to this testimony as hearsay and make no
finding based on it
"N L R B v Local 450, Operating Engineers, 281 F 2d 313 (C A 5),
North Country Motors, Ltd. 133 NLRB 1479 Thomas Drayage &
Rigging Co, 97 NLRB 703, General Teamsters Local 439, 172 NLRB
No 231
"Siemons Mailing Service , 122 NLRB 81
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 2(6) or (7) of the Act
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3 Respondent has not violated Section 8(b)(4)(i)
and/or (ii)(B) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed