Carpet, Linoleum, Etc., Local 419

National Labor Relations Board - Board Decisions

Jun 20, 1969

176 N.L.R.B. 876 (N.L.R.B. 1969)

876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpet, Linoleum , Soft Tile and Resilient Floor
Covering Layers, Local Union No. 419, AFL-CIO
and Sears, Roebuck and Co . Case 27-CC-278
June 20, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On February 6, 1969, Trial Examiner Maurice M.
Miller issued his Decision in the above-entitled
proceeding, finding that the Respondent 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 filed exceptions to the
Trial Examiner's Decision with a supporting brief,
the General Counsel filed an answering brief, and
the Charging Party filed an answering brief and
cross-exceptions 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
nree-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,
cross-exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner with the following clarification.'
We agree with the Trial Examiner's findings,
based on the application of the "right to control"
test to the particular facts of this case, that the floor
covering installers involved herein, who perform
services for Sears, Roebuck and Co., are
independent contractors. Further, we agree that
there is no basis for finding Sears to be an "ally" of
the contractors in their dispute with the Respondent.
As more fully set forth by the Trial Examiner, all
of the installations are accomplished by separate
enterprises, which have other customers in the
Denver area. These businesses are operated from the
homes of their owners, who perform no work on the
Sears' premises. They operate with their own
business trucks, tools, materials, bank accounts and
liability insurance, and they wear no Sears' uniform
of any kind. The installers are responsible to repair
any of their work which is defective and to pay for
any damage. The installation enterprises set their
own daily work limitations and schedules and on
'The Respondent 's request for oral argument is hereby denied as, in our
opinion , the record, including the exceptions , cross-exceptions , and briefs,
adequately presents the issues and the positions of the parties.
occasion several have subcontracted Sears' jobs
without prior approval or knowledge of Sears.
Although the contracts between Sears and the
installers call upon the contractor to refrain from
doing extra work for Sears' customers without
written authorization , the practice is clearly to the
contrary. Unlike Sears employees , the installers'
relationship with the company is not governed by
the personnel manual, nor do they have to take the
physical examination required of all Sears'
employees , and none of the contractors or their
employees receive any employee benefits from
Sears, except an occasional 1-day discount which is
also available to police and firemen, among others.
Those installers who perform services with their own
employees pay such assistants at rates fixed solely
by them and deduct from their wages all necessary
items such as social security and taxes . On the other
hand , the contractors are paid by Sears without any
such deductions.
Contrary to the Respondent ' s contention, the
facts of this case are clearly distinguishable from
those in Carpet Center.2 Unlike the particular
indicia of control retained by the retail carpet dealer
in that case , the record here shows that the installers
can and do schedule work for other customers on
the days they work for Sears and they determine the
order of performance . Furthermore , Joe and Eddie's
Carpet Service , one of the installers herein,
reschedules work by arrangement with Sears'
customers without notifying Sears. None of the
installers are supplied with precut or presewn
material , or with instructions on how to get to a
customer's premises. The contractors need not
report to Sears daily or at any given time, and
assignment of work is not based on where the
installers live. Although the contractors are
presumably required to give Sears notice whenever
they will be unavailable for work because of
vacations , sickness , or for some other reason, there
is some record evidence that such notices are not
given. The price lists which were arrived at through
negotiations between Sears and the installers reflect
the fact that the contractors are paid according to
the difficulty of the work, instead of a single rate
per square yard. The installers can and do change
the prices set forth on work orders if for any reason
they do not accurately reflect the actual work
performed . Generally the installers are supplied with
a room layout showing the areas to be covered and
on occasion the seams to be sewn ; however, they
may and do disregard said layouts if they believe
they can perform the job in a more satisfactory
manner . Furthermore, if in their judgment a job
cannot be completed satisfactorily the installers can
and do reject the assignment.3
'Local No. 2265, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (Carpet Center, Inc.), 170 NLRB No. 93
'The instant case is also distinguishable from the recent decision in
Carpet, Linoleum and Soft Tile Layers Local No. 1238 (Arnold's Carpet).
175 NLRB No. 50, in that here there is substantial record evidence that
176 NLRB No. 120
CARPET, LINOLEUM , ETC., LOCAL 419
From the foregoing, it is apparent that the Sears'
installers clearly have a far greater scope of
decision-making power than those in Carpet Center
and Arnold's Carpet and are independent
contractors.
Having found that the installers are independent
contractors and that Sears is not sufficiently related
to the contractors to destroy its neutrality, we adopt
the Trial Examiner's further findings that
Respondent violated Section 8(b)(4)(i) and (ii)(B) of
the Act by picketing Sears, with an unlawful object
of forcing Sears to cease doing business with the
installers, including Joe and Eddie's Carpet Service,
with whom the Respondent had a dispute.
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 Respondent , Carpet,
Linoleum , Soft Tile and Resilient Floor Covering
Layers, Local Union No . 419, AFL-CIO, its
officers , agents, and representatives, shall take the
action set forth in the Trial Examiner's
Recommended Order.
the installers can and do exercise independent judgment over the manner of
cutting and piecing together the carpet. We also note that whereas the
installer in Arnold's Carpet received weekly payments, the Sears
contractors may be paid by the job or whenever they desire.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner: Upon a charge
filed and duly served, the General Counsel of the National
Labor Relations Board caused a Complaint and Notice of
Hearing to be issued and served upon the parties herein.
(The complainant, Sears, Roebuck and Co. had filed the
charge on August 9, 1968; General Counsel's complaint
issued August 29. All dates cited within this decision refer
to 1968, unless otherwise noted.) Therein, Carpet,
Linoleum, Soft Tile and Resilient Floor Covering Layers,
Local Union No. 419, AFL-CIO, designated as
Respondent Union herein, was charged with the
commission of certain unfair labor practices affecting
commerce within the meaning of Section 8(b)(4)(i) and
(ii)(B) of the National Labor Relations Act, as amended.
61 Stat. 136, 73 Stat. 519. Copies of the complaint and
notice of hearing were duly served upon the respondent
labor organization. Within Respondent Union's duly filed
answer, certain factual statements in General Counsel's
complaint are conceded; Respondent Union, however,
denies the commission of unfair labor practices.
Pursuant to notice, a hearing with respect to the issues
was held at Denver, Colorado, between October 8 and 11,
before me. The General Counsel, Respondent Union, and
complainant were represented by counsel. Each party was
afforded a full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence
pertinent to the issues. (One day before the hearing closed,
Respondent Union's counsel requested a subpena for
877
General Counsel' s witness , Massey, who had previously
been excused following the completion of his testimony;
counsel then proposed his recall as Respondent Union's
witness . While testifying first, in General Counsel's behalf,
Massey had proffered certain testimony which a
subsequent witness for General Counsel, Harris, partially
contradicted; Respondent Union's counsel contended that
Massey's further testimony with respect to the particular
matters involved thus in contradiction - regardless of
whether he maintained a disagreement with General
Counsel's subsequent witness or resolved their clearly
discrepant testimonial recollections - would be both
relevant and material. The following day - when the
parties' testimonial presentations were, in all other
respects, complete - the witness sought by Respondent
Union's counsel had, presumptively, not been served; he
did not present himself when called. Respondent Union's
counsel, then, requested that the record be kept open and
the hearing continued, so that Massey's further testimony,
regarding the discrepancy between Harris' recollection and
his, could be received at some later date. Following a
record colloquy, I concluded that such further testimony
- depending upon its conceivable tenor - would either
be immaterial or merely cumulative. Counsel's request
that the record be kept open and the hearing continued,
therefore, was denied. Upon further consideration, I
remain persuaded still, that this disposition of counsel's
request has worked no prejudice, with respect to
Respondent Union's defensive presentation. N.L.R.B. v.
Phaostron Instrument and Electronic Company, 344 F.2d
855 (C.A. 9). My ruling is reaffirmed. Since the hearing's
close, comprehensive and well-prepared briefs have been
received from counsel for the General Counsel and
complainant; these have been duly considered.
Upon the entire testimonial record, documentary and
film evidence received, and my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Sears, a New York corporation, maintains several
related mercantile establishments both within and near
Denver, Colorado, at five locations. Three of these are
retail stores. (Customarily, these are designated as the
Cherry Creek store, Westland store, and Northglenn
store, respectively.) The firm, likewise, maintains a
warehouse, with a separate catalogue service location.
Respondent Union's course of conduct, challenged herein
as violative of the statute, affected Complainant's Cherry
Creek store and warehouse merely.
In the course and conduct of its business operations,
Sears has sold and distributed - through its Cherry
Creek store specifically - goods and products valued in
excess of $500,000 yearly. Likewise, Sears has purchased,
transferred and delivered to its designated store, and
warehouse, goods and materials valued in excess of
$50,000 yearly, which goods and materials were
transported to complainant's store and warehouse directly
from states of the United States other than the State of
Colorado.
Upon these facts, which are conceded to be correct, I
find that complainant is now, and has been throughout the
period with which this case is concerned, an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and business activities which affect commerce
within the meaning of Section 2(6) and (7) of the statute.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With due regard for those jurisdictional standards which
the Board presently applies - see Siemons Mailing
Service , 122 NLRB 81, and related cases , I find assertion
of the Board ' s jurisdiction in this case warranted and
necessary to effectuate statutory objectives.
II. THE RESPONDENT UNION
Carpet, Linoleum , Soft Tile and Resilient Floor
Covering Layers, Local Union No. 419, AFL-CIO,
designated as Respondent Union within this decision, is,
concededly , a labor organization within the meaning of
Section 2(5) of the Act, as amended . Throughout the
period with which this case is concerned , I find , George
Cooney, Respondent Union ' s financial secretary and
business manager , together with Paul Wishard and
Richard Geisler , field representatives , have been agents of
the designated respondent, functioning on its behalf,
within the meaning of Section 2(13) of the Act, as
amended.
III. THE UNFAIR LABOR PRACTICES
A. Issues
In connection with Sears ' general mercantile
operations, the firm sells floor coverings at retail. The
floor coverings sold compass soft surface , (carpet),
together with hard surface , ( linoleum and file ), materials.
In most cases , the firm sells not only the floor covering
materials but likewise, whatever installation services may
be required . The customer pays a single price , calculated
to cover Sears ' selling price for necessary materials
purchased together with a labor selling price, plus any
charges related to credit terms which the particular
customer may request or require . Whenever Sears' floor
covering sales compass installation work , responsible
Sears representatives finally "assign" such work to
various floor covering installers , under circumstances
which will be noted.
This case derives from a series of picket line
confrontations between representatives of Respondent
Union , on the one hand , and, on the other , Joe Brase and
Eddie Stimac , doing business as Joe and Eddie's Carpet
Service Company , together with Sears , through its Cherry
Creek store and warehouse specifically . Thereby, so
General Counsel contends , the Respondent Union,
through its representatives , induced and encouraged
various Sears employees - together with individuals
working for other persons engaged in commerce - to
cease performing services for their respective employers.
Further , General Counsel contends that Respondent
Union likewise threatened, coerced , and restrained Sears,
together with other persons engaged in commerce. Such
conduct was undertaken - so General Counsel herein
charges - with the unlawful object , in each case, of
forcing or requiring Sears to cease doing business with Joe
and Eddie ' s Carpet Service , and certain other floor
covering installers variously designated . Respondent
Union denies the statutory violations charged . Further,
Respondent Union contends , affirmatively , that all floor
covering installers working on Sears' jobs function as
company workmen ; that Sears fixes and controls their
wages and working conditions ; that those wages and
working conditions are inferior to those generally
prevailing throughout the floor covering industry within
the Denver metropolitan area ; that such wages and
working conditions, therefore , jeopardize the prevailing
standards for wages , hours , and working conditions set
through collective bargaining for Respondent Union's
members ; that Respondent Union thus has a so -called
primary labor dispute with Sears concerning the wages,
hours , and working conditions which Complainant has
fixed for floor covering installation workers; that Sears is
not a neutral or disinterested party with respect to that
dispute ; and that Respondent Union ' s conduct , challenged
herein as violative of law , should , therefore , be considered
protected and concerted activity , on both statutory and
constitutional grounds.
B. Facts
1. Preliminary statement
How Floor Covering is Sold
At Sears' metropolitan Denver area stores , the specific
department or division which handles floor covering sales
is known as Division 37; such departments or divisions are
maintained at the Cherry Creek, Westland, and
Northglenn stores.
Generally , prospective customers visit the floor covering
department of some Sears store; there , they may discuss
with a salesman - preliminarily - the type of floor
covering they presumptively desire to purchase. The
salesman , usually, tries to arrange a visit within the
customer ' s home ; when successful, he brings samples
calculated to help the customer select whatever floor
covering he may desire . Should the customer indicate that
a complete job, with installation service, is desired, the
salesman will prepare a Floor Covering Estimate and
Proposal document ; having seen the specific floor area or
areas which the customer wishes covered , the salesman
will calculate both the price of the carpet or hard surface
covering materials required , and estimated material
installation charges . Both figures will be noted , within
appropriate spaces, on complainant ' s Estimate and
Proposal form. (Six copies of the proposal are normally
prepared. The copy titles vary from one copy to another;
they correspond with the first copy, however, in most
major respects .) When the customer accepts this so-called
"bid" proposal for both materials and labor , the salesman
will normally draw a diagram of the space or spaces to be
covered , within a graph-marked section which the firm's
Estimate and Proposal form provides . This drawing will
show the rooms to be covered , the type of material
required , and - sometimes - where seams should be
sewn or laid.
Following the document ' s preparation - when a final
consensus with the customer regarding various details,
such as credit terms, has been reached - the completed
Estimate and Proposal is signed , in multiple copies, by the
parties . The salesman then returns the document, minus
the customer ' s copy - together with a sales check - to
Sears' store . The reverse side of the customer's retained
copy of the proposal form - so the record shows -
contains the following language:
INSTALLATION. It is understood that Sears will not
install said materials but that by the acceptance of this
proposal you authorize Sears to arrange with a
contractor licensed where required to make the
installation; you authorize Sears ( 1) to issue to said
contractor an installation work order with these
specifications, (2) to inspect the installation upon
completion thereof, and (3 ) to pay the contractor his
CARPET, LINOLEUM , ETC., LOCAL 419 879
charge for such installation upon your execution of a
completion certificate establishing that the installation
has been satisfactorily completed . You agree to pay to
Sears the amount specified herein which will cover the
price of said materials and the installation charges.
When the customer has proposed a credit purchase, the
complete Estimate and Proposal is submitted to Sears'
credit department for review . Likewise - whether or not
credit terms must be approved - the proposal is
submitted to the proper Division Manager ; the latter,
then , checks the document ' s correctness.
When the particular Estimate and Proposal has
received the Division Manager ' s concurrence, the
necessary document copies (Nos. 1, 2 , 3, and 4 copies) are
placed in a job folder , which is normally sent to Sears'
warehouse installation department , or some particular
store ' s customer service department , for further
processing . (With respect to hard surface floor coverings
- linoleum and tile - such processing is centralized at
Sears' warehouse , under Installation Manager Donald
Chandler ' s supervision . Chandler is responsible , likewise,
for the processing of carpet installation orders received
from Sears' Cherry Creek store . Sears' other store
Division Managers , McNally at Westland and McGuire at
Northglenn , are responsible for processing carpet
installation orders which originate at their stores.) The
store salesman , generally next places an order for
whatever materials may be required . Carpet is procured,
generally , from direct sources - that is , the carpet mills
- or from Sear ' s pool stock warehouses . Linoleum and
tile are normally carried in stock at the warehouse.
Following a sale's conclusion , the salesman generally
gives the customer an approximate period within which
the materials may be expected, and notes "three or four
days thereafter" as the customer ' s estimated installation
date . Normally , when the goods required have been made
available either from Sears ' warehouse or from some
direct source - whether hard surface or soft surface
materials are involved - the job folder concerned with
the particular sale will be removed from a file for further
handling , by a representative in Sears' warehouse, or store
customer service department . (For present purposes, this
description of Sears procedures, related to handling floor
covering job orders , will be rather generalized. The
process will be detailed further , infra , when the nature of
the relationship between the complainant and various floor
covering installers must be reviewed.) Sears' installation
department or customer service representative , first,
communicates with the designated customer , to determine
the best , most appropriate time for material installation,
consistent with both the customer's needs and the
projected availability of required installers . When this
determination has been made , the necessary installation
work is assigned to some particular installer. Requisite
copies of Sears' job documents - designated "General
Order to the Contractor" specifically - are replaced in
the. job folder which the installer will subsequently
procure ; these folders are, then , placed within properly
designated boxes or slots , depending on the store , for each
installer ' s subsequent pickup . (The complainant maintains
current working relationships with some sixty installers;
this number includes those who perform floor covering
work. At Sears ' warehouse , each of them has a pigeonhole
within which their particular job orders are placed. At
Westland , such job orders are made available within the
store ' s customer service department .) Most installers,
generally , visit the warehouse or particular store within
which they do business , daily ; at such times, they will
customarily pick up their work orders . They then procure
the material required for the job which they will be
required to perform on any given day, proceed to the
jobsite , and perform whatever work may be required.
When their particular jobs are completed , the installers
concerned - pursuant to their more or less regular
practice - submit one copy of complainant ' s relevant
Estimate and Proposal , together with their conventional
invoice form , for payment.
Hard surface floor covering - linoleum and tile -
which Sears sells is normally installed by Frank Harris,
doing business as Frank Harris Tile Company, and by
Daryl Massey , doing business as Duke's Floor Covering;
other linoleum and tile installers who sometimes receive
work from Complainant herein , however, include Joseph
Mozzicato , John Erpelding , doing business as Sea-Ro Tile
Company , and Gerald Fallert , doing business as G. & H.
Tile Company . Soft surface floor covering sold from
Sears ' Westland store has been installed by Joe and
Eddie ' s Carpet Service Company . Before Respondent
Union commenced the picketing with which this case is
concerned , soft surface coverings sold through Cherry
Creek were installed by Crown Carpet Service; since
Respondent Union began picketing , however , Cherry
Creek installations have been handled by Joe and Eddie's
and by Paul E . Clark , d/b/a Clark Carpet Service. So far
as the record shows, these constitute the full complement
of floor covering installers working out of Sears'
warehouse and Cherry Creek store.
2. Respondent Union ' s picket line
Sometime in July 1968 , Joe Brase and Eddie Stimac,
together with a worker in their hire , Charles Duran, went
to a Sears customer's home to perform a repair job.
When they reached the customer 's residence, Respondent
Union ' s field representative , Wishard , appeared. Brase
and he had a conversation . (Stimac , who was present,
testified that the conversation occurred in July . Brase -
likewise , first recalled the event as occurring in July, but
- during cross-examination - testified that it occurred in
the middle of May . Upon this record, I am satisfied that
the testimony preponderantly warrants a determination
that the conversation took place in July, consistently with
Stimac' s testimony and Brase ' s first recollection.) Wishard
asked whether Stimac and Brase would consider joining
the Union . Brase , however , responded negatively,
declaring that they were partners and would be unable to
maintain their partnership - consistently with their
understanding of Respondent Union ' s relevant rules -
unless they had two or more employees. Wishard then
left, but returned shortly thereafter . About 15 minutes
later, Field Representative Geisler joined him, bringing
some picket signs . Wishard, then , requested Brase to state
what his "outfit" was called. Brase replied that he could
not do so ; Wishard, however , declared that his, (Brase's),
name was known . Respondent Union's field representative
then printed the name "Joe Brase" within blank spaces on
the picket signs which Giesler had brought; both men
commenced picketing. Joe and Eddie ' s repair job took
approximately 45 minutes to complete ; within that period,
Wishard and Giesler carried their picket signs on the
sidewalk , before the customer ' s home, for approximately
30 minutes . (Respondent Union , through its counsel, has
conceded that a picket sign was carried near the
customer's residence . Counsel declared, however , that the
sign which was carried contained the name "Sears,
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roebuck and Co." but did not contain Brase ' s name, that
of his partner , or their
partnership designation . Respondent Union has
produced no testimonial support , for its counsel's
declaration regarding the business enterprise designated;
neither Wishard nor Giesler was called to testify. Brase's
testimony regarding the picket sign 's language , therefore,
stands without record contradiction; that testimony is
credited.) When their job was completed, Brase, Stimac,
and Duran went to a nearby coffee shop. They were
joined, there, by Wishard and Giesler; Wishard renewed
their earlier conversation . He declared that Joe and
Eddie ' s Carpet Service was rumored to be doing Sears'
work , that they were non union , that Respondent Union
did not like it, and that "they" wanted Duran and both
partners to join. He also reported that Putsche of Crown
Carpet Service had complained, and that "they" had to
"take care or ' the boys . Brase , Stimac and Duran,
however, joined in telling Wishard that they were not
interested in becoming Union members.
On August 7 and 8, thereafter, Respondent Union's
representatives picketed Sears' Cherry Creek store. The
first day, they picketed on the public sidewalk, adjacent to
the store 's south entrance , between 9 : 30 a.m . and 12:30
p.m.; on August 8, Respondent Union picketed between
11:30 a.m. and 1 p.m. before the same store entrance.
Since August 8, further - and continuing to date -
Respondent Union has picketed Sears' warehouse. (This
picketing has, likewise , been conducted on public property
except for 3 or 4 days at the commencement of the picket
line, when it was maintained on Sears' property. The
pickets, however, moved when requested.) The sidewalk
picketing at Sears' Cherry Creek store was conducted by
two pickets ; near the warehouse, one or two persons have
carried picket signs at various times . The signs which were
carried before the Cherry Creek store, and which are still
being carried at Sears' warehouse read as follows:
Front
FLOOR COVERING SOLD BY
SEARS ROEBUCK AND CO.
IS INSTALLED BY
UNDERPAID WORKERS
CARPET & LINOLEUM LAYERS
LOCAL 419
Reverse
NOTICE
FOR TOP QUALITY
WORK PATRONIZE
FIRMS EMPLOYING
UNION CARPET
& LINOLEUM LAYERS
The warehouse picketing is currently being conducted
outside the only gate which provides warehouse access,
Sears' entire property being enclosed by a chain link
fence. The picketing, generally, compasses the hours from
8 to 5 o'clock, which constitute the warehouse's working
hours.
Lawrence Richardson, Sears' warehouse personnel
manager and operating superintendent testified - without
challenge or record contradiction - that some warehouse
deliveries have been delayed, or have not been made, as a
result of Respondent Union's picketing; he declared that
Sears has been so advised by dispatchers for various
motor carriers. Motion pictures taken by Richardson on
August 9th, proffered for the record, show trucks of major
motor carriers approaching Respondent Union's picket
line outside the warehouse, turning around, and driving
away. Richardson's credible testimony warrants a
determination, further, that service organizations such as
the telephone company, have, upon occasion, refused to
honor requests to perform work at Sears' warehouse.
3. The relationship between Sears and its floor
covering installers
With matters in this posture, we confront the principal
question litigated herein. General Counsel contends that
Respondent Union's picket lines - with relation to Sears'
premises specifically - violated and continue to violate
the statute, because they derive from a dispute with
respect to which Sears must be considered a neutral
secondary employer; this Board is solicited to conclude
.that Complainant herein, contrary to Respondent Union's
contention, cannot realistically be considered the specific
primary "employer" with whom respondent labor
organization maintains its dispute. (Concededly, Section
8(bX4XB) does not prohibit a labor organization's primary
economic action - for example, picketing - against
business enterprises, in furtherance of labor disputes which
it may have with them. See Denver Building and
Construction Trades Council 341 U.S. 675. The section
does, however, proscribe conduct calculated to bring
pressure upon some primary employer, through other
business enterprises generally described as so-called
"secondary" employers, for the purpose of furthering such
disputes.) When Respondent Union herein characterizes
its dispute with Sears as primary, so the argument runs,
such mere "labeling" does not, ipso facto, permit its
escape from Section 8(b)(4XB)'s thrust. As General
Counsel notes: If floor covering installers within the
Denver metropolitan area can be considered significantly
free from Sears' control - during the course of their
business dealings with that firm - then Respondent
Union's quarrel must lie directly with those installers, not
with Complainant herein; necessarily, therefore,
Respondent Union's picketing of Sears, calculated to
further that quarrel, must be considered subject to
statutory proscription.
Thus, General Counsel contends, herein, that various
floor covering installers, with whom this case is concerned,
function freely without that degree of Sears' control which
would make complainant their "employer" within Section
8(b)(4)'s meaning. More particularly, General Counsel
declares, within his brief, that:
A clear preponderance of the evidence shows that the
installers are independent contractors and not
employees within the meaning of the Act, and, further,
that there is insufficient control of the operations of the
CARPET , LINOLEUM , ETC., LOCAL 419 881
contractors by Sears to link the contractors to Sears in
such a fashion that Sears may be called an "ally" of the
contractors in their dispute with the Respondent
[Union].
The contention presents this case ' s basic question. We
must , therefore , proceed to consider both the nature and
scope of Sears' challenged relationship with floor covering
installers , herein . To that question , this decision now
turns.
a. The installers
Joe and Eddie ' s Carpet Service is a partnership,
consisting of Joe Brase and Eddie Stimac , previously
noted ; they have one employee , Charles Duran. Duke
Massey does business as a sole proprietorship known as
Duke ' s Floor Covering; Frank Harris , likewise , functions
as a sole proprietor , under the Frank Harris Tile
Company name . Paul Clark , also a sole proprietor, does
business as Clark Carpet Service ; he has functioned under
various similar names for some ten years . Clark has two
employees , currently.
These enterprises - all of them - do business from
the homes of their owners , designated . All have , however,
made substantial investments in their several businesses,
through the purchase of one or more trucks and tools
related to their trade . (Their trucks , so far as the record
shows, carry no identification calculated to designate them
as belonging either to Sears, or their registered owners.
Sears does not tell its contract installers what type of
trucks to purchase , nor does Complainant inspect them,
or require that they be inspected .) They all carry their
own contractor' s liability insurance . Consistently with
relevant Colorado law - presumably - Joe and Eddie,
particularly , do not maintain workmen ' s compensation
coverage , or pay State unemployment insurance taxes, for
themselves or their workmen . Joe and Eddie , however,
pay social security taxes for their partnership employee,
and withhold State and Federal income taxes from his
wages , which are paid from partnership funds. (The
employee , Charles Duran , is paid weekly ; he receives an
hourly rate, plus overtime pay when he works more than 8
hours per day , together with a paid vacation and six paid
holidays .) Clark 's two employees, likewise , receive an
hourly wage. They are covered by the State workmen's
compensation statute, but have no unemployment
compensation coverage . Taxes and social security
payments are, likewise , withheld from their paychecks.
Neither installers , nor their workmen , wear any kind of
Sears, or other, uniform . All maintain their own business
bank accounts . Sears has never checked - nor does it
reserve the right to check - their books and records. So
far as the record shows, Sears has never provided
installation training . Nor has complainant ever loaned
these floor covering installers money for the purpose of
starting their several businesses , maintaining such
businesses, purchasing tools, or supplementing their
working capital.
b. Their relationship with Sears distinguished from
that of regular Sears employees
Unlike regular Sears workers , installers are not
required to take physical examinations before being
engaged ; nor must they submit to other personnel
interviews , or mental or psychological testing, prior to
performing services . They are engaged directly through
Sears' warehouse installation department manager, or
store managers , pursuant to contract , and not through
Complainant ' s personnel department . Further, unlike
Sears' regular employees , they receive none of the fringe
benefits - such as profit sharing , purchase discounts, paid
vacations, paid holidays , hospitalization and life insurance
- which complainant offers. (Together with numerous
other policy favored persons and institutions - such as
firemen , policemen , delivery company workers, store
doctors , churches , schools , and charitable institutions -
installers may receive a 10 percent discount pass when
making retail purchases , on a limited one-day basis, from
store managers.) They do not report at set times daily, for
work . Finally , unlike Sears regular workers - whose
relationship with Complainant is governed by the firm's
personnel manual - the relationship between Sears and
these floor covering installers is governed by contract, as
previously noted.
Within these contracts , the signatory installers are
designated "contractors" throughout . The contracts begin
with a recitation that Complainant herein "does not install
certain materials" which it sells , together with a recitation
that customers purchasing such materials may "desire to
arrange for installation thereof" by some qualified
contractor . (Floor covering installers currently utilized by
Sears may be privy to contracts varying slightly both in
format and language . Between February 1965 and April
1967, complainant had contractors sign a contract form
which was subsequently modified , during the latter month.
The modifications , within my view , merit characterization
as merely technical. Harris , Massey and Crown Carpet
currently perform their services for complainant pursuant
to January , 1967, contracts, drafted and signed on Sears'
earlier contract form . Joe and Eddie ' s Carpet service,
though currently functioning pursuant to a contract signed
during August 1967, then executed Sears ' prior contract
draft . Paul Clark, whose contractural privity with Sears
presumably dates from August 14, 1968 , signed a revised
form . Since the two forms, however, reveal no significant
differences , references to contractual language herein -
when considered necessary - will be confined to that
found in complainant ' s current contract form.) The
contractor represents his willingness and desire to perform
installation work "but only as an independent contractor
and not as an employee" with respect to Complainant
herein . The contractor agrees to accept jobs "tendered"
within a designated territory, which he can satisfactorily
perform . Further , the Contractor engages that he will
"perform each job in a neat and workmanlike manner"
consistently with "established trade practices" within the
area, relevant laws, rules , regulations , ordinances or other
lawful requirements , and Sears' job specifications.
Likewise:
Contractor agrees that upon receiving a job for
installation from Sears , Contractor shall first determine
whether the installation can be satisfactorily completed.
If Contractor determines that he cannot complete the
job satisfactorily , Contractor will notify Sears promptly
and thereupon the tender of the job shall be deemed to
be withdrawn from Contractor.
Installers guarantee that every job shall be free from
defects in workmanship, for a period of 1 year from its
completion . If defects in workmanship nevertheless
appear , the installers contract to remedy such defects
promptly ; should they fail to do so , Sears or the customer
is given the right to have the defects corrected at the
installer's expense . Sears is given the right to hold and use
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any moneys then or thereafter due the Contractor as
reimbursement for any sums so paid. The contract, inter
alia, mentions a so-called Schedule of Contractor's
Charges calculated to fix Contractor's installation charges;
Sears agrees that Contractors will be paid "on behalf of
each of Sears customers" whatever installation charge
may be specified within the Contractor's work order, (1)
upon receipt of the Contractor's invoice following the
job's completion, (2) following the Contractor's execution
of certain necessary documents; and (3) upon Sears'
concurrence that the job has been "satisfactorily and
properly" completed. In that connection:
The parties further agree that Contractor has the full
right to determine, and the responsibility for, the
method, manner and control of the work to be
performed as specified in the written Proposal or the
General Order To The Contractor, and Contractor will
employ sufficient competent adult workmen to complete
each job promptly and satisfactorily.
The Contractor is granted the sole and exclusive right to
hire, direct, supervise and discharge any workmen he may
employ, subject only to Sears' right "as agent for [the]
customer" to request such a workman's withdrawal should
any customer report himself not satisfied with the
workmanship or progress of any job. The Contractor
assumes full responsibility for all contributions, taxes and
assessments on payrolls pursuant to applicable Federal,
State, and local laws; he further agrees to protect, defend,
hold harmless and indemnify Sears, together with its
agents and employees, from and against claims, demands,
actions, liabilities, losses and expenses suffered by any
person, which arise from or may be considered in any way
related to the Contractor's activities, work or services.
The contract is negotiated for 1 year, subject to annual
renewal thereafter. Both Sears and the Contractor,
however, have rights of termination, during the contract's
term or extended term, upon at least 30 days' prior
written notice.
c. How installers receive their work
When a sale is consummated, the salesman's "Floor
Covering Estimate and Proposal" does not state the date
installation will take place. When necessary materials are
received at complainant's store or warehouse, however,
some Sears employee (whether it be someone in the
designated warehouse office, or someone within the
concerned store's customer service department)
communicates with the customer to arrange a convenient
installation date. This being done, two copies of the firm's
Estimate and Proposal, which the installer designated to
do the work must receive, are put in boxes or pigeonholes,
from which he may subsequently procure them.
The installer, when he comes to Sears, proceeds to his
box, picks up the documents noted - which constitute his
so-called "work order" for the job - procures the
materials required, and goes on his way, presumably to
perform whatever work may have been tendered.
Credible testimony proffered by various installers -
without contradiction - reveals some variant practice in
this connection. Sears has established no fixed reporting
requirements; floor covering installers are not required to
report at specific times, or even at all. Thus - with
respect to Joe and Eddie's Carpet Service particularly -
the record reveals: That the partners generally visit Sears'
Westland Store daily, Mondays excepted; that, sometimes,
they may perform work for other customers first, and
then visit complainant's store; that they do not, therefore,
report at particular times; that they normally work about
eight hours per day; that they do not themselves, receive
overtime compensation from Sears or other customers
should they work more than eight hours; but that they pay
their own workman overtime. And Massey's comparable
testimony - which stands without contradiction -
warrants determinations: That he tries to pick up all of his
assignments on Monday, for the coming week; that he
normally works, thereafter, about thirty hours per week
(on all his work), making some $10 per hour; that, when
he does perform Sears' work, he normally stops to pick
up his required materials between 8:30 and 9:00 o'clock,
drinks coffee until 9:30 or 10 o'clock, then goes to work;
that there are days when he performs Sears' work on
which he has no contact with persons at Sears' premises.
(None of the floor covering installers punch a time-clock.
So far as the record shows, should one not wish to work,
he flouts no duty.) Harris, so he testified, works for Sears
between 25-30 hours per week; he averages $60 per day
for each day's work. He does not feel required to visit
Sears daily; when he does so, he usually reaches the
warehouse at 9:30 a.m. approximately.
When they do report, the floor covering installers - as
previously noted - pick up their work folders, and then
procure the materials required for their installations. Such
materials are procured directly, either at Sears' store dock
or warehouse; the Complainant does not deliver floor
covering, neither to the customer's jobsite or residence,
nor to contractors. With respect to floor covering
materials pickups, further, the record shows that Joe and
Eddie locate, pick up and load their own materials at
Sears' dock. They will sometimes pick up several days'
work at one time; materials thus procured may be stored
in their garages, or left on their truck. They have left
Sears' material in their garages, sometimes, for a couple
of weeks. (When supplied by Sears, neither hard surface
materials nor carpet materials are precut or presewn in
any fashion. Carpet materials are received by these
installation contractors in rolls which approximate the
correct square yardage required for the particular job. All
cutting and sewing is done within the customer's home.)
Sears does not supply any material to carpet layers save
the carpet and pad materials which Complainant sells.
When linoleum or tile is sold, Sears likewise sells the
paste and metal fixtures required for installation; the hard
surface material layer, however, supplies any required
underlayment or base.
Sears' job tenders to not take into account such factors
as where the material layers live; assignments are made on
the basis of the installer's availability.
In that connection, further, the record shows that Joe
and Eddie's Carpet Service does not work for Sears on
Mondays; they work a Tuesday through Friday week.
Comparably, Massey only works 3 days per week for
Sears, since he works for another major customer, J. C.
Penney's, the other 2 days. (All Sears' floor covering
contractors mentioned in the present record have other
customers within the Denver metropolitan area. Their
charges may vary, as between customers, depending on
their work. They can and do schedule significant amounts
of work for their other customers on the same days they
do Sears' work. When this is done, they may handle their
several jobs in any order they choose, and need not
perform Sears' work first. However, should a Sears'
customer be promised some particular time of day for his
work, the installers will try to meet that commitment.)
CARPET, LINOLEUM, ETC., LOCAL 419 883
Normally, the person or department responsible for Sears'
job tenders - with regard to floor covering installation
work - takes into account whatever . work load
limitations particular installers may have set . Stating the
matter otherwise, these installers are tendered jobs, daily,
which will not exceed their own, previously stated,
limitations. Thus, Joe and Eddie's Carpet Service,
normally will be given jobs which require them to lay no
more than roughly 100-150 yards per day. Massey and
Harris - within the field of hard surface floor coverings
- do about $60 worth of work per day; this normally
represents about five-six hours of work. Joe and Eddie
have, sometimes, further limited the amount of work
which they will perform on a given day by telling the
Sears' representative responsible for assignments to
schedule only so much, or not to schedule any more jobs
for that day than she already has. Sears -- as far as the
record shows - complies. Additionally, Joe and Eddie
may determine, themselves, which of them will perform
particular jobs tendered.
d. How the work is performed
When floor covering materials have been procured, the
contractor concerned may proceed to the customer's
home, or call the customer to arrange a time which is
convenient for him . He may likewise take the material
home and leave it there , until he is ready to perform the
work. Sears does not tell installers what customer to visit
first, how early to arrive, or how late to stay; nor are
directions given as to how the customer's home may be
reached. The record shows - in this connection - that
Joe and Eddie may, sometimes call Sears' customers and
reschedule work with them, without notice to
Complainant's store or warehouse. Likewise, they may
make independent arrangements to come back to a
customer's house the following day, should they be unable
to reach a job or complete a job within a single day - all
of this without notice to Sears' customer service or
installation departments.
Massey, seemingly, follows a different procedure.
Whenever he cannot reach a particular Sears' customer's
job, he will call Sears and advise them, directly, regarding
the job' s postponement.
Installers receive no directions from Sears with regard
to how floor covering should be installed. They receive
nothing more, with regard to particular jobs, than the
salesman's rough drawn delineation of the specific room
or living area within the customer's home to be covered.
(The salesman's prepared Estimate and Proposal form
may or may not have such a diagram. In any event,
whatever diagram there may be is not drawn to scale.
Rather than a specific direction to installers , with regard
to how floor covering should be laid, it seemingly does
little more than help the salesman in consummating the
sale.) Sometimes , with respect. to carpet installations, the
diagram will show where seams are to be located ; carpet
layers, however, are not required to follow the drawing.
They often ignore it , and put seams elsewhere, when,
within their judgment, that would make for a better job.
They may also modify the specified job in various other
respects. When this is done - so far as Joe and Eddie is
concerned - no notice is given Complainant herein, nor is
prior clearance requested.
Though the contracts between Sears and various floor
covering craftsmen require the latter to refrain from doing
extra work for Sears' customers - such as taking up old
carpet and relaying it within another room - without
written authorization, the practice of most installers is
clearly contrary. Joe Brase testified regarding two such
instances , for which the customer paid directly; his
testimony was corroborated, generally, by his partner.
(Massey, when queried in this connection, testified that he
tells the customer to call a Sears salesman, because the
customer is usually looking for a cut rate.) Harris, so his
testimony shows, does such extra work occasionally;
sometimes he even sells the customer material for such
extra work from his own stock. Paul Clark - though he
has only worked for Sears since August 1968, has
performed work for Sears customers, beyond that
specified on Sears' job proposal, three times. Sears, so far
as the record shows, gets no notice, and takes no reprisals
in such situations; nor has it promulgated a flat
prohibition.
Upon occasion, when busy, Joe and Eddie's Carpet
Service has subcontracted Sears work to another person;
this, without Sears' prior knowledge. That person has
been paid with partnership funds. Harris, likewise, has
had Massey perform Sears' work when he has been unable
to do so. Complainant, on this occasion, likewise received
no notice; Harris sent in the bill, and thereafter paid
Massey himself. Harris has, likewise, negotiated directly
with a Sears' customer for installation work, when the
customer had made no arrangements with Sears , when his
material was purchased, for such work.
Floor covering installers are responsible for repairing -
without further charge - any of their work which may
prove defective; likewise , they are responsible for any
damage they may do. Should they be notified regarding a
customer's complaint with respect to their work, however,
they may normally schedule the required repairs at their
convenience. (Sears' current contract form grants the firm
the right to condition payment of the contractor's
installation charge "upon inspection by and approval of
Sears that the job has been satisfactorily and properly
completed" consistently with the salesman's Estimate and
Proposal form. So far as the record shows, however,
Sears' right of inspection is seldom exercised. Whether a
complaint requires inspection will be determined as a
matter of business judgment. Defective work, normally,
will be brought to the craftsman's attention through
customer complaints, which may be made either through
Sears, which relays them, or directly.) Massey, so his
testimony shows, tries to get any necessary repair work
done within a couple of weeks; Joe and Eddie's Carpet
Service try to get theirs done sooner. Should installers be
called upon to perform repairs on someone else's work, or
to replace defective materials, they charge their regular
prices. For such supplementary work, however, prices are
not predetermined. Massey, so his testimony shows,
charges prices which he, himself, fixes for repair or
replacement jobs; he has never had a bill rejected under
such circumstances.
Floor covering installers have the contractual right to
reject any work which Sears has tendered; they have, upon
numerous occasions, exercised that right following their
first visit to the prospective customer's home. Such
rejections may derive from various considerations; these
may compass the craftsman's belief that the job cannot be
performed properly as described within the firm's
Estimate and Proposal form, or his belief that he cannot
make money on the job. Thus, for example: Joe Brase
testified - with general corroboration - that he refused
a particular job in May 1968, because he did not feel that
the way the customer and the Sears' salesmen wanted the
job performed was the proper way. His testimony shows
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he left the job, and that he returned only after the
customer had called Sears and concurred with Brase's
recommendation regarding the way the work should be
done . Clark - so the record shows - has rejected Sears'
work twice since August 14, 1968. Massey , likewise
testified that he has rejected work several times . Stimac's
testimony reveals a rejection , with respect to part of a
proffered job, because he did not believe he could do a
good job, consistently with Sears ' specifications.
e. How installers are paid
When Sears has - within the recent past -
undertaken to establish a working relationship with some
particular floor covering installer , complainant's
warehouse installation department manager , or some
appropriate person within Sears' Denver managerial
hierarchy , has negotiated with that "contractor" regarding
a so-called price list which details the prices to be charged
and paid for installation work . General Counsel, within
his brief, notes - correctly - that, within the present
record , there was much divergent testimony concerning
the precise way various prices charged to Sears by
different installers originated . However , that testimony -
within my view - need not be recapitulated in detail. By
way of summary , I find merit in General Counsel's
comment , within his brief, with respect thereto: The
critical thread which runs throughout the testimony of
those involved in the determination of the price lists is this
- the greater portion of the prices currently in effect were
proposed and initiated by the installers . Further, in those
situations where prices were initiated by Sears, the
installers involved engaged in meaningful negotiation as to
the prices . For example , Paul Clark' s testimony shows
that he initiated his first contract with Sears , seeking
installation work. Clark, when he discussed the possibility
of procuring installation work with Chandler, Sears'
warehouse installation department manager , proposed or
"bid" certain prices for various types of work which were
acceptable to the latter . The prospective contractor,
likewise told Chandler that he felt his proposed prices
would subsequently have to be revised upward ; Chandler,
so I find , concurred.
Massey and Harris. so the record shows , together
presented a revised price list , sometime early during 1968;
they sought Chandler' s concurrence regarding a proposed
increase in the various rates which they were being paid.
Their testimony , regarding the precise form of the list
which they presented , was contradictory . However, my
record review has persuaded me that - regardless of the
form which their proposal may have taken - these hard
surface floor covering craftsmen themselves initiated the
suggestions which Chandler subsequently accepted, save
for certain fixture moving charges.
Testimony which Division Manager McNally, Brase,
and Stimac proffered, likewise , supports such a
determination , relative to their negotiations . I find that
Brase and Stimac , too, were initiators with respect to
prices.
With respect to certain recent 1967 negotiations
between the Crown Carpet Company, and another carpet
laying contractor with whom Sears no longer deals, on the
one hand , and Sears' Area Group Manager Donald
Jansen , on the other , the record does show that Jansen,
rather than the designated installers , was responsible for
broaching discussions looking toward a change to lower
base "per square yard" prices . However, the craftsmen -
so I find - presented a written counterproposal,
nevertheless , for further price modifications calculated to
cover "special" contingencies , which , within their view,
would more precisely and equitably reflect the complexity
of some of the work which they were doing ; with respect
to these installer proposals , as well as Sears ' lower base
price proposal, consensus was finally reached.
The price lists drafted , pursuant to these negotiations,
consistently set different rates of installers ' compensation
(Sears' cost) for various types of work - which may
present varying degrees of difficulty and require varying
degrees of skill. (The record , further, warrants a
determination that - despite these negotiated prices -
situations may still develop with respect to which new
negotiations are required , because previously set price lists
may not cover some specific contingency or because the
installers may refuse to perform work, judged to be more
complex and difficult , for previously negotiated prices.)
These price lists provide the basis for those installation
charges which may be noted on Sears' Floor Covering
Estimate and Proposal forms ; store salesmen compute
their customers' installation charges from price lists
which , in turn , derive from the prices which installers
charge the complainant herein . When Sears ' customer
service representatives or warehouse installation
department personnel can readily compute - from their
salesman ' s Estimate and Proposal form - what the
installation contractor ' s charge should or will be, that
figure will be calculated , and proper notations will be
made , wherever necessary , within the proper spaces on the
contractor's job documents . Should the designated Sears'
representative be unable to determine a proper
contractor ' s charge , these documents will be forwarded
within complainant's job folder with no stated charge
shown . (While the contractor 's total charge has generally
been entered on the work orders given the lineolum and
tile layers , through Sears ' warehouse , the space for such
notations has frequently been left blank on those issued
Joe and Eddie by Sears' Westland store.) The record,
however, clearly warrants a determination that the total
contractor 's price noted by Sears does not bind the floor
covering installers concerned . These "contractors" are the
final judges with respect to their own final charges. Those
who testified , herein , declared - consistently - that they
have changed Sears' total price notation whenever it did
not, for any reason, correctly reflect the work performed.
Division Manager McNally of Sears ' Westland store
conceded that Joe and Eddie have done this many times,
with or without explanations.
When a job is completed and the particular craftsman
concerned desires to be paid , he sends complainant herein
- wherever he originally picked up his work documents
- the proper copy of Sears' Estimate and Proposal form
previously received (No. 4 copy), together with a Sears
originated invoice form . (These documents may be turned
in whenever the installer finishes his job; they may,
however , be retained and accumulated before submission,
for a week , or as long as the installer desires.) If Sears'
Proposal form (No. 2 copy) did not contain a notation
stating the contractor 's charge , he will make the necessary
entry, based on his previously negotiated price list.
Whenever he has performed extra work, directly related to
whatever specific installations may have been directed, he
may add charges for such work to the total sum which
Sears' representative may previously have entered;
whenever the total charge computed by the Sears'
representative has been misfigured , the contractor may
note a correction. Such changes are, generally, made
without Sears' authorization, though the contractor may
CARPET, LINOLEUM, ETC., LOCAL 419 885
have given Complainant notice of his intention to make a
change , where large sums are concerned . In all three
situations , Sears regularly changes its records , and pays
the installer whatever sum he, claims is owed , for the job
or jobs covered. So far as the record shows , no bill ever
submitted for a job or jobs, with respect to which the
prices were first computed or recomputed by the
contractor, has ever been rejected.
When paying floor covering installers, Sears withholds
no sums to cover social security or Federal income taxes;
nor is there any percentage withheld to cover possible
installation mistakes.
C. Conclusions
1. The installers are independent contractors
The legal standard pursuant to which a determination
must be made as to whether the floor covering installers,
herein , must be considered independent contractors or
employees involves the so-called "right to control" test.
Cf. Local No. 2265, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO (Carpet Center, Inc.),
170 NLRB No. 93. The test has been declared relevant
and proper , with judicial concurrence; it has been utilized
many times . See, e .g., Pure Seal Dairy Company, 135
NLRB 76, 79. Within the case last cited, the Board
formulated this legal standard as follows:
In determining the status of persons alleged to be
independent contractors , the Act requires the
application of the "right to control" test. Where the
person for whom the services are performed retains the
right to control the manner and means by which the
result is to be accomplished , the relationship is one of
employment. On the other hand, where control is
reserved only as to the result sought , the relationship is
that of independent contractor . The resolution of this
question depends upon the facts of each case and no
one factor is determinative. [Emphasis supplied.]
When the facts of the present case are reviewed, with
reference to this legal standard , their clear preponderance
shows - within my view - that Sears does not retain the
right to control the manner and means by which floor
coverings which it sells will be installed . Rather , control is
reserved merely with respect to the result sought. The
floor covering craftsmen concerned herein, therefore, must
be considered independent contractors . The Board's
previously noted Carpet Center decision - which
confirmed a Trial Examiner ' s determination , finding
carpet installation workers to be employees of the
Respondent company therein designated - specified some
six facets of the particular company-installer relationship,
therein found , which the Trial Examiner and Btrd
considered determinative . No more than one of these
listed , however, can be considered characteristic of the
company-installer relationship which this record reveals.
(The Trial Examiner's Carpet Center decision refers to the
fact that Respondent company therein , should it find the
work of particular installers displeasing in any respect,
may discipline or get rid of them by withholding future
assignments . Sears , with its installation contracts , likewise
maintains such a right . I would consider the designated
right consistent with either an "independent contractor"
or "employee" determination .) Within the Trial
Examiner ' s decision noted , some 10 further characteristics
which mark Carpet Center's relationship with its carpet
installation workers are mentioned . Practically none of
these , however , can be considered descriptive of Sears'
relationship with the floor covering contractors which are
herein concerned . (First, the Trial Examiner 's Carpet
Center decision , among other things , notes that the
manager of Respondent company therein, when he assigns
work to particular installers , takes into account both the
number of yards to be laid , and where the installers live,
trying to give them work near their homes . Sears' jot.
tenders , directed to particular carpet layers, likewise, take
into account the total number of yards to be laid. The
present record , however , shows that those job assignment
limitations which Sears will recognize derive from
directives which the concerned installers have themselves
laid down , rather than from Complainant 's departmental
policies . Further, Sears' job tenders are proffered without
regard for the particular contractor ' s geographical
convenience . Secondly, while Sears' contractors - like
Carpet Center's workmen - are themselves required to
load materials they may need for various jobs, this record
warrants no determination that they are normally
permitted or required to search for such materials,
personally, within Sears' warehouse or departmental
storage facilities . Thirdly, contractors are presumably
requested or required - like Carpet Center's workmen -
to give Sears notice, whenever they will be unavailable for
work because of vacations , sickness, or for some other
reasons; nothing in the present record, however, warrants
a determination that Sears maintains a definitive rule or
regulation , regarding the time limits before which such
prior notice must be given . There is some record
suggestion that such notices may , sometimes, not be
given .) Within his decision, the Board 's Carpet Center
Trial Examiner found - with respect to that firm's
installation craftsman - that "certain aspects of their
relationship with the company" would, despite his
contrary conclusion , tend to support a possible
independent contractor determination . My reading of the
decision noted reveals some five "aspects" characteristic
of the relationship therein considered which might,
arguably , have suggested such a conclusion . The present
record, inter alia, reveals these selfsame five "aspects"
likewise operative herein , coupled with others , when we
consider the nature and scope of Sears' relationship with
its various Denver floor covering installation contractors.
Such considerations , within my view , clearly require a
determination - contrary to Respondent Union's
suggestion herein - that Carpet Center presents a
situation factually distinguishable , from that which the
present record reveals , regarding the nature of the
relationship which Respondent Union herein , through its
challenged course of conduct , presumably sought to
modify.
This Board has previously declared that its resolution of
so-called "independent contractor" questions , through
what has been designated the "right to control" test, will
depend upon the facts of each case , with no single factor
considered determinative . The trier of fact, therefore, finds
no necessity , herein , presently to recapitulate, seriatim,
those several factors marking Sears' relationship with
various floor covering installation contractors which
dictate its final characterization as one falling within the
statutory "doing business" concept. Rather , I find it
sufficient to declare , broadly that, their relationship -
when considered in totality as detailed within the present
record - merits a characterization consistent with
General Counsel' s contention herein . (Previously, within
this decision, passing references have been made to certain
$86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partially contradictory testimony proffered by General
Counsel ' s witnesses , regarding the precise format of their
suggested price list for linoleum and tile installation work,
when they presented that list to Sears' warehouse
installation department manager for negotiation . The first
witness , Massey , testified that Chandler had been
presented with proposals regarding the compensation
which Harris and he wished to receive for various types of
work related to linoleum and tile laying . Thereafter,
Harris testified - differently-that Chandler was given
proposals regarding the sums which Sears' customers
should be charged for various tasks connected with
linoleum and tile installation work; this proposal, so
Harris declared, was drafted because of their presumption
that Sears would, finally , determine their compensation by
applying a predetermined percentage figure to whatever
sums Complainant ' s customers may have been charged for
installation services . While testifying , Harris produced a
purported copy of the document which Chandler had been
given ; that document supports his recollection , since it
shows proposed "selling" prices for installation work done
in connection with Sears ' linoleum and tile sales. With
matters in this posture , Harris ' testimony regarding the
proposal's format - which Chandler substantially
corroborated - merits credence . Having reached this
conclusion , however , I reject Respondent Union's
presumptively consequent contention that such a proposal,
dealing with Sears' selling prices, suggests a consensus -
shared by Chandler on the one hand , and both hard
surface contractors on the other - that their price list
negotiations were really employer-employee discussions. I
note , in this connection , that the proposed price list -
despite its form - was initiated by these installers; both
were seeking higher compensation. Further , I note that
Chandler ' s final response - with respect to which both
Massey and Harris later concurred - was prepared to
show Sears ' proposed linoleum and tile work costs; rather
than Sears' proposed customer charges, it listed the
specific sums which Massey and Harris would , thereafter,
receive . And, in any event , whether or not my conclusion
is considered sound, these Chandler-Massey- Harris
negotiations , within my view , possess no compelling or
crucial significance . When considered in perspective,
within the context which the complete record provides,
such negotiations can hardly be considered , themselves,
sufficiently substantial or significant to warrant a rejection
of General Counsel' s position .) Counsel for Respondent
Union did, finally , produce a document culled from Sears'
file wherein Complainant's various contractors were,
substantially , directed to procure some designated
insurance coverage , some sort of Federal Account
number , and to have their contracts notarized . Chandler's
decision to promulgate these directives , however cannot -
with due regard for the whole record - be considered
sufficient to dictate a conclusion that he was addressing
employees , or to vitiate my determination that Sears'
floor covering installers held "independent contractor"
status.
These installers , then , must be considered independent
businessmen . And since Sears ' concern , with respect to
their work , is limited merely to such work 's final result,
Complainant ' s business relationship with them cannot be
considered sufficiently close to destroy its neutrality.
Complainant's counsel, within his brief, suggests - in this
connection - that:
It is important in analyzing this record to understand
that the installation of floor covering is not an
integrated part of our business and in arranging for the
installation Sears has not delegated the function
normally performed, nor ever performed, by regular
Sears employees; the customer is expressly told that
Sears will not do the installation . . . In our situation
the fact that Sears will find an installer for the
customer is merely an aid in selling the merchandise;
Sears has not replaced an integrated employee
operation with an outside contractor.
These factual contentions, within my view, have record
support; I concur. Further, nothing within the record
would warrant a determination that Sears claims any
power or right to determine labor relations policy for or
with these floor covering installation contractors.
Necessarily, therefore, Respondent Union's grievance
could only be resolved by them, not by Complainant
herein; I so find. Under no circumstances can these floor
covering firms be considered "allies" with respect to
Sears , concerning a dispute which the latter firm could
resolve. Nor can the reverse be considered true.
Respondent Union's contrary contention must be rejected.
2. Respondent Union's conduct violates the statute
Once a determination has been made that the various
carpet, linoleum and tile layers whom Sears utilized for
floor covering installation work must be considered
independent contractors, there can be no doubt that
Respondent Union herein - determined to procure a
settlement of differences with Joe and Eddie's Carpet
Service particularly - relied upon statutorily proscribed
means to pursue objectives statutorily forbidden. I so find.
Regarding this portion of General Counsel's case,
Complainant's counsel, within his brief, notes:
. that the Respondent attempted to make [Joe Brase,
Eddie Stimac and Charles Duran] become members;
that they refused to join; that upon their refusal to join
they were picketed; that, when the picketing failed to
have any effect, the Respondent began and continued to
picket Sears. The object of the picketing at Sears can
be and is only to force Sears to stop doing business with
the installers until they join the Union.
This trier of fact finds counsel's statement both factually
correct, and legally persuasive. The Supreme Court has
clearly held that peaceful picketing - comparable with
Respondent Union's picketing with which this case is
concerned constitutes "inducement" and
"encouragement" statutorily proscribed. N.L.R.B. v.
Electrical Workers, 341 U.S. 694, 701-702. Such a
conclusion with respect to this case may be - indeed
must be - considered warranted even though Respondent
Union's picket lines , on some occasions, may not have
been successful. N.L.R.B. v. Denver Building Trades
Council, 193 F.2d 421 (C.A. 10). Respondent Union's
pickets have, however, had a discernable effect. True, the
record may show nothing reliable or probative regarding
their success, or lack of success, when they picketed Joe
and Eddie's Carpet Service, specifically - nor may it
show persuasively what success, if any, Respondent Union
had when it picketed Sears' Cherry Creek store. With`
respect to Sears' warehouse, however, Respondent Union's
picket line clearly brought results. Deliveries were delayed,
or were not made. Such a record showing warrants a
determination that Respondent Union's picket line was -
despite the mild language found on its picket signs -
reasonably calculated to induce or encourage individuals,
CARPET, LINOLEUM, ETC., LOCAL 419 887
employed by persons or business enterprises engaged in
commerce , to refuse , in the course of their employment to
transport , or otherwise handle or work on goods , articles,
materials , or commodities , or to perform services. I so
find . Further, Respondent Union' s picket line - to the
extent that it was successful - effectively threatened,
coerced , and restrained Sears directly.
Respondent Union' s proscribed object, likewise, must
be considered manifest . The Union' s original purpose was
shown when Joe and Eddie 's Carpet Service was picketed,
while the partners and their workman were performing
work within a customer ' s home . When such picketing
produced no tangible result , Respondent Union
commenced its picketing of Complainant herein. As
General Counsel notes - within his brief - the only
conclusion which can properly be drawn when a labor
organization pickets a commercial firm "doing business"
with some independent contractor , with whom that labor
organization has a dispute , must be the conclusion that at
least "an" object of respondent labor organization's picket
line is the forced cessation of that business relationship. I
so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent Union and its
designated representatives set forth in Section III, above
- since they occurred in connection with the business
operations of complainant herein previously noted - have
had a close , intimate , and substantial relation to trade,
traffic , and commerce among the several States . Absent
correction they would tend to lead, and in this instance
have led, to labor disputes burdening and obstructing
commerce , and the free flow- of commerce.
V. THE REMEDY
Since it has been found that Respondent Union and its
representatives did engage , and continue to engage, in
certain unfair labor practices, it will be recommended that
they cease and desist therefrom , and - take certain
affirmative action , including the posting of appropriate
notices, designed to effectuate the policies of the Act, as
amended.
In the light of these findings of fact , and upon the
entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Sears , Roebuck and Co . is an employer within the
meaning of Section 2(2) of the Act , engaged in commerce
and business activities which affect commerce within the
meaning of Section 2(6) and (7) of the Act , as amended.
2. Joe Brase and Eddie Stimac , d/b/a Joe and Eddie's
Carpet Service Company ; Crown Carpet , Inc.; Paul E.
Clark, d/b/a Clark Carpet Service ; Frank Harris, d/b/a
Frank Harris Tile Company ; Daryl Massey d/b/a Duke's
Floor Covering ; Joseph Mozzicato; John Erpelding, d/b/a
Sea-Ro Tile Company ; and Gerald Fallert , d/b/a G. &
H. Tile Company , are persons engaged in commerce, or in
an industry affecting commerce , within the meaning of
Section 2(6) and (7) of the Act, as amended.
3. Carpet , Linoleum , Soft Tile and Resilient Floor
Covering Layers , Local Union No. 419, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act , as amended.
4. By inducing and encouraging individuals employed
by Sears , or by other persons engaged in commerce or in
an industry affecting commerce , to refuse , in the course of
their employment, to transport or otherwise handle or
work on goods , materials , articles or other commodities,
or to perform services - for the purpose of forcing or
requiring Sears to cease using , selling , handling,
transporting , or otherwise dealing in the products of, and
to cease doing business with , Joe and Eddie 's Carpet
Service, Clark Carpet Service, Frank Harris Tile
Company, Duke's Floor Covering, Joseph Mozzicato,
Sea-Ro Tile Company, and G. & H. Tile Company -
Respondent Union has committed an unfair labor practice
within the meaning of Section 8 (b)(4)(i)(B) of the Act, as
amended.
5. By threats, coercion, or restraint, directed both to
Sears , Roebuck and Co . and other persons engaged in
commerce or in an industry affecting commerce - for the
purpose of forcing or requiring such persons to cease
using , selling , handling , transporting , or otherwise dealing
in the products of any other producer processor, or
manufacturer , and to cease doing business with other
persons - the Respondent Union has committed an
unfair labor practice within the meaning of Section
8(b)(4)(ii)(B ) of the Act, as amended.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act, as amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and
upon the entire record in the case , it is recommended that
the Board , pursuant to Section 10(c) of the National
Labor Relations Act, as amended, order that respondent
labor organization , Carpet, Linoleum, Soft Tile and
Resilient Floor Covering Layers, Local Union No. 419,
AFL-CIO, together with its officers , agents, and
representatives, shall:
1. Cease and desist from:
(a) Inducement or encouragement of any individual
employed by Sears , or by any other person engaged in
commerce or in an industry affecting commerce, to
engage in a strike or refusal, in the course of his
employment , to use, manufacture, process , transport or
otherwise handle or work on any goods , articles , materials
or commodities , or to perform any services , where an
object thereof is to force or require Sears, Roebuck and
Co., or any other person, to cease doing business with Joe
and Eddie's Carpet Service Company, Clark Carpet
Service, Frank Harris Tile Company, Duke's Floor
Covering, Joseph Mozzicato, Sea-Ro Tile Company, G. &
H. Tile Company, or any other person.
(b) Threatening, coercing , or restraining Sears,
Roebuck and Co., or any other person engaged in
commerce or in an industry affecting commerce , where an
object thereof is to force or require Sears, or any other
person , to cease doing business with the partnership and
several sole proprietorships designated within the
preceding subparagraph.
2. Take the following affirmative action which will
effectuate the policies of the Act, as amended.
(a) Post in conspicuous places at its business offices and
meeting halls , including all places where notices to
members are customarily posted, copies of the attached
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice marked "Appendix.' Copies of this notice, to be
furnished by the Regional Director for Region 27, as the
Board ' s agent, shall be posted immediately upon their
receipt, after being ' duly signed on behalf of respondent
Gabor organization by its duly designated representative.
Once posted, it shall remain posted for 60 consecutive
days thereafter . Reasonable steps shall be taken by
respondent labor organization to insure that this notice is
not altered, defaced , or covered by any other material.
(b) Sign and mail sufficient copies of this said notice to
the Regional Director for Region 27 for posting by Sears
Roebuck and Co., this recipient being willing, at all
locations where notices to employees and installation
contractors are customarily posted.
(c) File with the Regional Director of Region 27, as the
Board 's agent, within 20 days of the service of this
decision, a written statement setting forth the manner and
form in which it has complied with this Recommended
Order.'
'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 is enforced by a deuce of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals. Enforcing an Order" shall be substituted for the words "A
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 27, in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith.
WE WILL NOT induce or encourage anyone employed
by Sears , Roebuck and Co., or by any other person
engaged in commerce - or in an industry which affects
commerce - to engage in a strike or refusal - in the
course of his employment - to use, manufacture,
process transport or otherwise handle or work on any
goods, articles, materials or commodities , or to perform
any services - for the purpose of forcing or requiring
Sears Roebuck and Co ., or any other person, to cease
doing business with Joe and Eddie ' s Carpet Service
Company, Clark Carpet Service, Frank Harris Tile
Company , Duke ' s Floor Covering, Joseph Mozzicato,
Sea-Ro Tile Company, G. & H. Tile Company, or any
other person.
WE WILL NOT threaten , coerce or restrain Sears,
Roebuck and Co ., or any other person engaged in
commerce - or in an industry which affects commerce
- by maintaining picket lines , or by any other means
- for the purpose of forcing or requiring Sears,
Roebuck and Co., or any other person, to cease doing
business with the partnerships and sole proprietorships
named in the paragraph above.
Dated By
APPENDIX
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:
CARPET, LINOLEUM, SOFT
TILE AND RESILIENT
FLOOR COVERING
LAYERS, LOCAL UNION
No. 419, AFL-CIO
(Labor Organization)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced , or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board's Regional Office, 260 New
Custom House , 721 19th Street, Denver , Colorado 80202,
Telephone 297-3551.