Carpet, Linoleum, Soft Tile Local Union No. 419

National Labor Relations Board - Board Decisions

Jul 10, 1975

219 N.L.R.B. 74 (N.L.R.B. 1975)

74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpet, Linoleum, Soft Tile and Resilient Floor Cov-
ering Layers, Local Union No. 419 , AFL-CIO and
Franklin Furniture , Inc. Cases 27-CC-547 and 27-
CC-564
July 10, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On February 28, 1975, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. Counsel for the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Carpet, Linoleum, Soft Tile
and Resilient Floor Covering Layers, Local Union
No. 419, AFL-CIO, Denver, Colorado, shall take the
action set forth in the Administrative Law Judge's
recommended Order.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This mat-
ter was heard before me in Denver , Colorado, on Decem-
ber 10 and 11, 1974. The charge in Case 27-CC-547 was
filed July 9, 1974, by Franklin Furniture , Inc. (herein
called Franklin). On September 10, the Regional Director
for Region 27 approved an agreement in settlement of the
issues raised by that charge. That agreement had been en-
tered into September 6 by Franklin and Carpet, Linoleum,
Soft Tile and Resilient Floor Covering Layers, Local
Union No. 419, AFL-CIO (herein called Respondent). The
charge in Case 27-CC-564 was filed by Franklin October
21, and is similar in substance to that in Case 27-CC-547.
A consolidated complaint issued November 19, was
amended during the hearing, and alleged that Respondent
had violated Section 8(b)(4)(i) and (ii)(B) of the National
Labor Relations Act. The complaint in addition ordered
that the above-settlement agreement "be vacated and set
aside" on the ground that Respondent had breached its
terms.
The parties were given opportunity at the hearing to in-
troduce relevant evidence, examine and cross-examine wit-
nesses, and argue orally. Briefs were filed for the General
Counsel and Respondent.
ISSUES
The ultimate issues are whether Respondent , by picket-
ing and handbilling at Franklin 's warehouse beginning Oc-
tober 21 , 1974, and by picketing and handbilling at
Franklin 's furniture store beginning October 29 , violated
Section 8(b)(4)(i ) and (ii)(B) of the Act.
If so, a further issue is whether , as averred in the com-
plaint, Respondent thereby breached the settlement agree-
ment in Case 27-CC-547; and , if that be so, yet a further
issue is whether Respondent , by picketing Franklin's ware-
house beginning July 9, 1974, violated Section 8 (b)(4)(i)
and (ii)(B).
1. JURISDICTION
Franklin , the alleged neutral employer as that term is
used in the context of Section 8 (b)(4)(B), is engaged in the
retail and nonretail sale and installation of floor coverings
out of its warehouse at 3001 Brighton Boulevard in Den-
ver; and in the retail and nonretail sale of furniture out of
its store at 1745 Wazee Street in Denver . Franklin's annual
receipts from the warehouse operation exceed $500,000,
and it annually purchases and causes to be shipped to that
facility directly from outside Colorado goods valued in ex-
cess of $50,000 . The record is devoid of dollar figures con-
cerning the Wazee Street store.
The alleged primary employers include Ray Butler
d/b/a ABC Installation (herein called ABC); Paul Escal-
era (herein called Escalera); and Dale Belitz d/b/a Wel-
shire Carpet Service (herein called Welshire). Each of these
firms is engaged in the installation of floor coverings.
ABC's gross revenues during the first eleven months of
1974 were about $175,000, over one-half of which derived
from jobs for Franklin . Escalera 's revenues are not men-
tioned in the record . Since he began doing installations for
Franklin in July 1974, however, about 80 percent of his
income has come from that source . He has been in the
installation business , out of his home , for about 25 years.
Welshire 's revenues for the first 10 months of 1974 were
$85,000 , of which $24 ,000 came from Franklin.
It is concluded that Franklin , ABC, Escalera , and Wel-
shire all are persons engaged in and affecting commerce
within Sections 2(1), (6), and (7), and 8(b)(4)(B) of the Act;
and that Respondent 's alleged misconduct properly is sub-
ject to the Board 's jurisdiction . Marble Polishers Local
Union No. 16 (Kendall Construction Co.), 191 NLRB 120
(1971), fn . 1; Euclid Foods, Incorporated, d/b/a Bondi 's
Mother Hubbard Market, 118 NLRB 130 ( 1957); Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
219 NLRB No. 17
CARPET, LINOLEUM, SOFT TILE LOCAL UNION NO. 419 75
and Helpers of America, Local 554 (McAllister Transfer,
Inc.), 110 NLRB 1769 (1954).
II. LABOR ORGANIZATION
Respondent is a labor organization within Section 2(5)
of the Act.
III. FRANKLIN'S RELATIONSHIPS WITH ITS INSTALLATION
SUBCONTRACTORS
A. Facts
Until 1972, Franklin had its own crew of floor covering
installers , who had been covered by a succession of bar-
gaining agreements between Franklin and Respondent.
That crew was disbanded in 1972, and all installations
since have been contracted out. Franklin, through its sub-
contractors , installs about 80 percent of the floor coverings
that it sells . Franklin charges the customer for both materi-
als and installation in these cases. Subcontractors used by
it at times relevant to this proceeding were the three previ-
ously mentioned-ABC, Escalera, and Welshire-plus
Shelter Installation Service of Colorado, Inc. (herein called
Shelter). Of these, Shelter has a bargaining relationship
with Respondent. It is used by Franklin on so-called union
jobs. The others, being nonunion , are used on nonunion
jobs. Although as a matter of practice Franklin has used
each of these firms recurrently over a period of months or
years ,' there is nothing of a contractual nature requiring
the continuance of the relationships.
ABC, Escalera, and Welshire all work out of locations
remote from Franklin 's premises . Shelter, on the other
hand, has an office in Franklin's warehouse. It pays a
monthly rental of $50 and has its own telephone listing. All
have their own trucks and tools ; hire , fire , and assign their
installation employees free of intrusion by Franklin;2 and
administer their own payrolls, making appropriate deduc-
tions for tax, social security, and other purposes. All install
other than for Franklin ;3 and accept or refuse Franklin
jobs as they see fit. Should installation be improperly done,
Franklin is responsible to the customer, but in turn looks to
the errant subcontractor for correction at the latter's ex-
pense. The subcontractors also bear ultimate responsibility
generally for damage during installation . Franklin accord-
ingly asks that they carry property damage insurance.
In the usual case , Franklin first contracts with a custom-
er to sell and install , then procures one of the subcontrac-
tors to do the installation . Franklin generally takes the ini-
tiative in procurement , although Escalera , for one,
sometimes inquires at the warehouse of the availability of
work. For residential and other small jobs, the money ow-
ing by Franklin to the subcontractors normally turns on
I Shelter has done installations for Franklin for about 3 years; ABC, over
2 years; Welshire , about 1 - 1/2 years, Escalera , since July 1974
ABC's 1974 payroll ranged from 3 to 32 ; Escalera ordinarily works only
with his son, occasionally hiring another person ; Welshire's crew size fluctu-
ates from three to seven ; Shelter's generally is about eight.
3 With the exception of Welshire , however, which derived about 30 per-
cent of its 1974 (first 10 months) revenues from Franklin , each of the named
subcontractors does a substantial majority of its work for Franklin
the yardage involved, a flat per-yard rate being negotiated
and renegotiated by Franklin and each subcontractor from
time to time , but not from job to job. Thus, at the outset of
his relationship with Franklin in July 1974, Escalera pro-
posed a residential rate of $1.50 per yard, which has been
the basis of their subsequent dealings.
Similarly, in the spring of 1974, Ray Butler of ABC
asked for and obtained agreement to an increase to $1.50;
and Dale Belitz of Welshire did likewise in July 1974. The
flat rate is not rigid, however, allowances being made for
problems, foreseen and unforeseen, that prolong installa-
tion time on a given job. On a job shortly before the trial,
for instance, Escalera asked for and received an adjust-
ment in rate in mid-job when an unforeseen situation
emerged.
The date of installation, on residential and other small
jobs, is worked out by Franklin to the convenience of the
customer and the subcontractor. Shortly before installa-
tion, Franklin provides the subcontractor with a copy of
the invoice, which specifies the name and address of the
customer, the kind and quantity of covering to be installed,
areas to be covered, and the date of installation. The
subcontractor's copy also contains any special instructions
or suggestions . If, for example, it is a collect-on-delivery
situation, the invoice will direct the subcontractor to col-
lect from the customer before installing; or, if the customer
wishes to retain leftover scraps, the invoice will so state; or,
if installation will necessitate moving large pieces of furni-
ture, the invoice will suggest that a hand truck be taken
along.
For "major jobs" as opposed to residential and other
small jobs-i.e., those involving upwards of 1,000 yards of
material and typified by apartment and condominium
complexes and institutions-the per-yard installation rate
is negotiated between Franklin and the subcontractors sep-
arately for each job. Date of installation usually is subject
to the dictates of the general contractor, and details of in-
stallation normally are set forth in the owner's job specifi-
cations.
The subcontractors transport the coverings from
Franklin's warehouse to the jobsites in their trucks.
Franklin's warehousemen assist them in cutting the materi-
als from the rolls at the warehouse and loading them, after
which Franklin's personnel have nothing to do with the
installation process. Tailoring of the materials, to conform
to the areas being covered, is done by the subcontractors at
the jobsite. Franklin personnel almost never inspect instal-
lation jobs .4
Franklin pays the subcontractors on Friday for any bill-
ings submitted by the previous Wednesday. The amount,
as previously indicated, is purely a function of yardage in-
stalled as reflected in the billings. Nothing could be con-
strued as wages or wage substitutes for the subcontractors'
employees; nor does Franklin maintain fringe benefits for
those employees, unless a couple of isolated instances when
they received discounts on floor coverings are so consid-
ered . Those avowedly employed by Franklin, by contrast,
enjoy a considerable array of fringe benefits.
Alan Markson , Franklin 's vice president , testified that, of over 600 in-
stallations done for Franklin by Shelter on a certain housing project, a
representative of Franklin possibly has seen five
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shelter, being under union contract, pays its employees
union scale and provides assorted fringe benefits as pre-
scribed by the contract. ABC, Escalera, and Welshire, on
the other hand, do not furnish any of the fringe benefits,
but do pay the union wage. A consequence of this is that
Franklin pays Shelter about 20 cents more per installation
yard than it does the others.
B. Discussion
The General Counsel contends, of course, that
Franklin's installation subcontractors are independent
contractors; Respondent, that they are Franklin employ-
ees. The test, as stated in Pure Seal Dairy Co., 135 NLRB
76, 79 (1962), is this:
[I]n determining the status of persons alleged to be
independent contractors, the Act requires the applica-
tion 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 em-
ployment. On the other hand, where control is re-
served 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.
The Board, applying this test to the peculiar facts of
given relationships in the floor covering industry, has gone
both ways. In Sears, Roebuck & Co., 176 NLRB 876 (1969)
and 190 NLRB 143 (1971) (supplemental decision), which
happened to involve the present Respondent, the Board
concluded that the installation subcontractors were inde-
pendent contractors. In Arnold's Carpet, 175 NLRB 332
(1969), and Carpet Center, Inc., 170 NLRB 633 (1968), on
the other hand, it concluded otherwise.
The relationships described in Sears, Roebuck & Co. are
strongly similar to those presently in question. And, as the
Board mentioned at 176 NLRB 877 (1969 ), Sears' installers
had "a far greater scope of decision-making power than
those in Carpet Center and Arnold's Carpet." It is conclud-
ed, therefore, that ABC, Escalera, Welshire, and Shelter are
independent contractors vis-a-vis Franklin.
IV. THE PICKETING AND HANDBILLING
A. Facts
Respondent began picketing Franklin's warehouse July
9, 1974, with signs stating:
Floor covering sold by Franklin Furniture is installed
by underpaid workers.
Local 419
Two or so weeks before, George Cooney, Respondent's
business manager, had sent this undated latter to Franklin:
It has come to our attention that the prices which you
are paying for the installation of floorcovering materi-
als are substantially below the prevailing rates and are
depressing the standards in the floorcovering industry.
Your failure to pay fair prices to the persons and firms
who perform your installation work adversely affects
the wage rates and working conditions of our mem-
bers.
We believe that the citizens of this community are un-
aware of your destructive practices, and that you en-
joy patronage which would be withheld if the truth
were known. We intend to publicize the facts in this
matter through picketing and other appropriate meth-
ods. The sole purpose of such picketing is to challenge
your right to the goodwill of the community. The pick-
eting will be entirely unrelated to any previous activi-
ties of this Union.
We have no desire, intention or purpose to cause you
to cease or refrain from doing business with any per-
son, firm or corporation. Our only demand is that you
treat them fairly. We do not seek recognition as the
representative of any of your employees or of any per-
son or persons with whom you do business. We are
not concerned with, and make no demands concern-
ing the identity of the persons, firms and corporations
to whom you assign your work. However, we do ob-
ject, and we shall protest, your exploitation of them.
Since the prices which you charge your customers for
installed floorcovering are more than adequate to al-
low you to pay decent prices for its installation, there
appears to be no justification for your failure to do so.
We intend to inform the public of these facts.
At such time as we receive satisfactory evidence that
you have increased the prices you pay for installation
of floorcovering materials to rates equal to those pre-
vailing in this area, the picketing will, of course, imme-
diately cease.
We do not seek, and will not enter into, any contractu-
al relationship with you. We have no interest as to
whether or not the persons who install your floorcov-
ering materials belong to, or are affiliated with, a labor
union. We do not seek to have them join our union or
to represent them for any purpose.
If you have any comment or question concerning this
matter, you may direct such comment or question to
the Executive Board of this Union. Neither the under-
signed, nor any other person, has authority to discuss
this matter in behalf of the Union.
Franklin did not reply to the letter.
As previously mentioned, the charge in Case 27-CC-547
was filed by Franklin July 9-the day the picketing began;
and, on September 10, the Regional Director for Region 27
approved an informal settlement agreement in that matter
that had been entered into by Respondent and Franklin
September 6. The picketing stopped at or about that time.
The settlement agreement included this provision:
The undersigned Union [Respondent] will not picket
Franklin Furniture, Inc. at 3001 Brighton Boulevard,
Denver, Colorado, for 30 days from the date of the
signing of this Agreement by the Union.
The agreement in addition incorporated a notice to em-
CARPET, LINOLEUM, SOFT TILE LOCAL UNION NO. 419
ployees and members, signed by Respondent , stating:
We hereby notify our members and employees of
FRANKLIN FURNITURE, INC., WAYNE DARLING, ABC INSTALLA-
TION and WELSHIRE CARPET SERVICE that:
WE WILL NOT by picketing or other means induce any
individual employed by FRANKLIN FURNITURE, INC, or
other persons engaged in commerce or in an industry
affecting commerce to engage in a strike or a refusal in
the course of their employment to perform services for
their respective employers; and
WE WILL NOT threaten, restrain or coerce FRANKLIN FUR-
NITURE , INC. or other persons engaged in commerce or
in an industry affecting commerce where in either case
an object thereof is to force or require FRANKLIN FURNI-
TURE , INC. to cease doing business with WAYNE DARLING,
ABC INSTALLATION and WELSHIRE CARPET SERVICE.5
Respondent began picketing the warehouse anew on Oc-
tober 21; and, on October 29, began picketing Franklin's
furniture store as well. The picketing at both places was
accompanied by handbilling, a feature not present in the
earlier picketing at the warehouse. The picket signs stated:
NOTICE TO THE PUBLIC
Please do not patronize Franklin Furniture, which
pays substandard rates to contractors.
CARPET LAYERS LOCAL UNION NO. 419
The handbills stated:
MESSAGE TO THE PUBLIC
We urge you not to patronize Franklin Furniture
Company, which refuses to pay prevailing rates to
floor covering contractors.
The prices which Franklin Furniture charges its cus-
tomers are more than adequate to allow it to pay de-
cent prices to contractors.
Please buy your furniture and floor covering from a
merchant who treats its contractors fairly.
Thank you!
CARPET LAYERS LOCAL UNION NO. 419
As before, the renewed activity was preceded by a letter
to Franklin from Business Manager Cooney. This letter,
dated October 9, stated:
Recently we have received information that the
prices which you pay to Contractors for the installa-
tion of floor covering materials are substantially below
the prices for such work generally prevailing in this
area. Your failure to pay your contractors in accor-
dance with established area rates gives you an unfair
advantage over your competitors and tends to depress
the standards in the floor covering industry. We be-
lieve that the citizens of this community are entitled to
know these facts and we intend to disseminate such
information by appropriate methods, including peace-
ful picketing. Such picketing will be entirely unrelated
to any previous activity by this union.
We have no objection whatsoever to your contract-
5 The Wayne Darling mentioned in the notice is a principal in Shelter.
77
ing with any person, firm or corporation of your
choice, and we have no desire, intention or purpose to
cause you to cease or refrain from doing business with
any such person, firm or corporation. We request only
that you pay contractors the prevailing prices for the
installation of floor covering materials.
At such time as we receive satisfactory evidence
that you have increased the prices which you pay con-
tractors for installation of floor covering materials to
rates equal to those prevailing in this area, the picket-
ing will , of course, immediately terminate. We do not
seek , and will not enter into, any contractual relation-
ship with you. We are not concerned with, and make
no demands concerning the identity of the persons,
firms and corporations with whom you do business.
If you have any comment or question concerning
this matter, you may direct such comment or question
to the Executive Board of this union. Neither the un-
dersigned nor any other person has authority to dis-
cuss this matter in behalf of the Union.
And, as before, Franklin did not reply.
The renewed picketing, and handbilling, apparently con-
tinued, at least sporadically, until the present trial.'
The picketing at all times was done by two field repre-
sentatives of Respondent, Kenneth Morgan and Paul
Wishard. In addition to picketing Franklin's warehouse
from July to September, Wishard during that period some-
times pursued the trucks of Franklin's subcontractors from
the warehouse to jobsites, the idea being then to picket the
subcontractors at the sites. Morgan testified that this hap-
pened "on numerous occasions," adding that Wishard fol-
lowed .. .
... anybody that come in and took carpet out. We
knew that these men that come in and took carpet out
[of the warehouse] either worked for Welshire, who we
knew as Dale Belitz , or Continental Carpet.'
Wishard testified that he picketed Welshire and ABC
(which he called Continental) in this fashion on at least two
projects apiece. Wishard recalled that the picket sign on
the Welshire projects stated:
Notice to the Public, Join us in the protest against
substandard wages of Dale Belitz, Carpet, Linoleum,
Soft Tile Local 419.
The record does not convincingly show the wording of the
sign used on the ABC projects. Morgan testified, however,
that the purpose of following ABC (which he, too, called
Continental) from the warehouse and picketing its projects
was:
To publicize the fact that these guys were-that Conti-
6 Administrative notice is taken that , in a hearing held December 13,
1974, the United States District Court, District of Colorado, declined the
General Counsel's petition to enjoin Respondent 's picketing and handbill-
A brother of Ray Butler, the principal in ABC, has been engaged in the
installation of floor coverings in the Denver area through a firm called
Continental Carpet. ABC and Continental apparently are unrelated enter-
prises, although that issue was not explored in any detail on the record
Regardless , Respondent 's Cooney testified that the two firms were "one and
the same in our opinion ," and Respondent 's officials, in their testimony,
routinely referred to ABC as Continental
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nental Carpet was paying substandard wages to their
men.
Previously, in January and April 1974, Respondent had
picketed at Franklin's warehouse with signs asserting that
Continental was in violation of a contract with Respon-
dent.8 Respondent also had picketed Welshire in April,
"expressing," in Cooney's words, "the fact that . . . he
[Dale Belitz, Welshire's principal] was not paying the pre-
vailing rates."
Explaining the presettlement picketing of Franklin, Coo-
ney testified:
[I]t was an effort to induce Franklin Furniture to in-
crease the remuneration to their so-called contractors
so that they would be more competitive with the legiti-
mate contractors in the industry.
Regarding the postsettlement picketing and handbilling
of Franklin, Cooney testified:
We attempted to enlist the aid of the public to help us
to induce Franklin Furniture to increase the remuner-
ation to the contractors who were in competition with
our legitimate contractors who were paying the pre-
vailing wages.
Cooney defined "legitimate contractors" as:
[T]he ones that are paying the prevailing wage rate,
including the fringe benefits, but not restricted to the
wages and fringe benefits , also taxes , particularly so-
cial security.
He included Shelter-but not ABC, Escalera, and Wel-
shire-in this category, adding that, were Shelter
Franklin's only subcontractor, there would be no reason to
picket Franklin .9
Cooney testified that Respondent's postsettlement activ-
ity against Franklin was not the same-"not precisely,
no"-as that beginning in July. He explained:
Well, the difference is that we were appealing directly
to Franklin in the first case and we were appealing to
the public in the second case.
Cooney continued that "part of" Respondent's com-
plaint with Franklin was:
[I]f the subcontractor isn't getting sufficient remunera-
tion for the yardage that he installs, why he's not able
to pay the prevailing [wage and benefit] rate.
The remainder of Respondent's complaint with Franklin,
according to Cooney, was:
Well, as an individual installer where they're working
at perhaps forty percent less than the contractor who
is paying the prevailing wage rates, it's pretty rough
competition for a shop that's required by contract to
pay prevailing wages.
Cooney further testified, under examination by counsel
8 Continental was party to a labor contract with Respondent , which ac-
cordmg to Respondent , it abrogated in late 1973 . Franklin has subcontract-
ed to Continental.
9 After a beef initial disruption, Respondent gave Shelter 's employees
permission to cross the picket line at Franklin 's warehouse.
for the General Counsel:
Q. [W]hen you were picketing Franklin, how could
you assume , assuming he met your demand and paid
the subcontractors a certain remuneration, as you
termed it, how could you assure that the employees
would receive the prevailing wage rate?
A. [I]f we secured information that the prevailing
rate was being paid, then we would have no dispute.
Q. Prevailing rate to whom, to the contractors, like
Ray Butler, per yard, or to the employees of Ray But-
ler?
A. As I said, they're interrelated. It would have to
be-it would have to be-it's a two-way street. He
can't pay the prevailing wages if he isn't getting it.
Q. Well, prevailing rate, what does that refer to, the
money which Franklin Furniture would pay to its sub-
contractor or what the subcontractor pays to his em-
ployees, what does prevailing rate mean?
A. Well, I'm referring to the wages, which would be
wages that are paid to the installer by the subcontrac-
tor, but what I'm saying-
Q. When you refer to installer, you mean employ-
ee?
A. Yes.
Q. And what are you saying?
A. I'm saying that if the subcontractor was not re-
ceiving a proper remuneration per yard for his instal-
lation, he could not pay the prevailing rate.
Later in the same line of questioning, Cooney testified:
Q. If the subcontractor would receive from Frank-
lin Furniture the prevailing rate and refuse to pay his
employees those prevailing rates or pass it on to the
employees, you would have no dispute with that em-
ployer?
A. No.
Q. None at all? What is the purpose of your union,
is it to protect the subcontractors or the employees?
A. It's to protect our employees, our members.
There is evidence that at least some of Franklin's non-
union subcontractors were sympathetic to Respondent's
picketing and handbilling of Franklin because of the en-
hanced leverage it might give them in negotiating higher
rates. None of the subcontractors perceived themselves as
having a dispute with Respondent.
B. Discussion
That Franklin's installation subcontractors are indepen-
dent contractors is not alone diapositive. The question re-
mains whether Respondent's picketing and handbilling of
Franklin were in aid of a dispute or series of disputes to
which, in point of law, Franklin is neutral. And, beyond
that, there is the question whether an object of
Respondent 's conduct has been to cause Franklin "to cease
doing business with" its nonunion subcontractors, within
the meaning of Section 8(b)(4)(B). The General Counsel
says yes to both questions; Respondent, no.
Although, as the delineation of issues early in this deci-
sion indicated, it would be inappropriate to inquire into the
CARPET , LINOLEUM , SOFT TILE LOCAL UNION NO. 419 79
legality of Respondent's presettlement conduct unless it
first can be concluded that its postsettlement conduct vio-
lated Section 8(b)(4)(B ), it is necessary to a fair appraisal of
the latter conduct that it be viewed in the perspective of the
overall sequence of events . 10 Seen in that light , there can be
little doubt that Respondent's basic "beef" at no time in
question has been with Franklin, but rather with Franklin's
nonunion subcontractors-both because they do not pay
their employees in accordance with area standards, and
because they consequently are able to undercut " legitimate
contractors" in competition for jobs.
Thus:
(a) Respondent picketed Welshire, protesting that it
"was not paying the prevailing rates," and Continental
(whom it equated with ABC), protesting that it was in vio-
lation of a union contract several months before Franklin
became an explicit addressee of the picket signs.
(b) Even as the presettlement picketing of Franklin pro-
ceeded, Respondent pursued and picketed ABC and Wel-
shire to publicize their payment of "substandard wages."
(c) Perhaps most telling , Franklin at no relevant time
has been an employer of installers whose employment con-
ditions Respondent sought to affect. It follows, almost by
definition, that Respondent at no time had a primary dis-
pute with Franklin. E.g., Bow and Arrow Manor, Inc., 206
NLRB 581 (1973).
This conclusion is not weakened by the change in picket-
sign language upon resumption in October; nor by the ap-
parent abandonment, upon resumption, of the companion
tactic of pursuing and picketing subcontractors. The bed-
rock bases of Respondent's displeasure remained intact
and unchanged . The assertion of Business Manager Coo-
ney that Respondent would have no dispute with the sub-
contractors, should they persist in substandard practices
even after any increase by Franklin of pay to them, is dis-
regarded as contrary to the evidence, egregiously self-serv-
ing, and irrelevant besides. That none of the subcontrac-
tors perceived themselves as in dispute with Respondent
likewise is inconsequential to the underlying legal conclu-
sion. )1
Regarding the object of Respondent's activity against
Franklin, Cooney as much as admitted its cease-doing-
business character when he testified that , were Shelter-
i.e., a union firm-Franklin's only subcontractor, there
would have been no occasion to picket Franklin; and that
a purpose of the picketing was to create a competitive situ-
ation in which Franklin would have occasion to use "legiti-
mate contractors" in addition to Shelter, rather than non-
union subcontractors. Implicit in this was a reordering of
Franklin's business relationships.
10 Presettlement conduct may be used "as background evidence estab-
lishing the motive or object of a Respondent in its postsettlement activities
Joseph's Landscaping Service, 154 NLRB 1384 fn 1 (1965).
11 Quoting from National Bituminous Coal Wage Agreement, 144 NLRB
228, 235(1963)-
It is not necessary for a union to have an active dispute with an em-
ployer or class of employers for its attempts to require another employ-
er to agree to cease doing business with the former , to be secondary,
rather than primary, in nature . It is sufficient that the Union objects to
the use of the disfavored employer 's products or services because of its
failure to maintain conditions of work approved by the Union
To summarize, it is concluded that Respondent's picket-
ing and handbilling of Franklin's warehouse, beginning
October 21, 1974, and of Franklin's furniture store begin-
ning October 29, violated Section 8(b)(4)(i) and ( ii)(B). It is
further concluded that these activities were a continuation
of those contemplated by the settlement agreement in Case
27-CC-547; therefore, that Respondent's engagement in
them breached that agreement, warranting the Regional
Director's order setting it aside.12 Finally, it is concluded
that Respondent's presettlement picketing of Franklin's
warehouse, from July 9 to early September 1974, also vio-
lated Section 8(b)(4)(i) and (ii)(B).
CONCLUSIONS OF LAW
1. By picketing Franklin's warehouse from July 9 to ear-
ly September 1974, as found herein, Respondent engaged
in unfair labor practices within Section 8(b)(4)(i) and
(ii)(B) of the Act.
2. By picketing and handbilling Franklin's warehouse
on and after October 21, 1974, and Franklin's furniture
store on and after October 29, 1974, as found herein, Re-
spondent engaged in unfair labor practices within Section
8(b)(4)(i) and (ii)(B) of the Act.
3. These unfair labor practices affect commerce within
the meaning of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 13
Respondent , Carpet, Linoleum, Soft Tile and Resilient
Floor Covering Layers, Local Union No. 419, AFL-CIO,
its officers , agents, and representatives , shall:
1. Cease and desist from inducing or encouraging indi-
viduals employed by Franklin Furniture, Inc., or any other
employer or person engaged in commerce or in an industry
affecting commerce, to engage in a strike or refusal-in the
course of their employment to perform any services; or
threatening, coercing, or restraining Franklin Furniture,
Inc., or any other employer or person engaged in com-
merce or in an industry affecting commerce , where in
12 Sec 101.9(e)(2) of the Board's Statements of Procedure provides: "in
the event the respondent fails to comply with the terms of an informal
settlement agreement , the regional director may set the agreement aside and
institute further proceedings " See also United Dairy Co, 146 NLRB 187,
189 (1964); Tompkins Motor Lines, Inc, 142 NLRB 1 , 3 (1963).
Respondent 's principal argument , regarding the settlement agreement, is
that the postsettlement picketing did not begin until over 30 days after its
entry into the agreement , whereas the agreement specified that Respondent
"will not picket . . for 30 days ." This argument ignores the other substan-
tive provisions of the settlement agreement , embodied in the notice, where-
by Respondent agreed , without time limitation , to desist from engaging in
activities violative of Sec 8 (b)(4)(B) relative to Franklin and its subcontrac-
tors.
13 All outstanding motions inconsistent with this recommended Order
hereby are denied In the event no exceptions are filed as provided by Sec
102 46 of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , and recommended Order herein shall, as provided
in Sec. 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and order, and all objections thereto shall
be deemed wavied for all purposes
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either case an object thereof is to force or require Franklin
Furniture , Inc., or any other employer or person in an in-
dustry affecting commerce , to cease doing business with
ABC Installation , Paul Escalera , Welshire Carpet Service,
or any other person.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix ." 14 Copies of said no-
tice , on forms provided by the Regional Director for Re-
gion 27, after being duly signed by Respondent 's represen-
tative, shall be posted by Respondent immediately upon
receipt thereof , and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to members customarily are posted. Reason-
able steps shall be taken by Respondent to ensure that said
notices are not altered , defaced , or covered by any other
material.
(b) Sign and mail sufficient copies of the notice to the
Regional Director for Region 27 for posting by Franklin
Furniture , Inc., should it wish to do so , at all locations
where notices to employees and installation subcontractors
customarily are posted.
i4 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
(c) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this recommended
Order, what steps Respondent has taken to comply here-
with.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT-by picketing, handbilling or other-
wise-induce or encourage individuals employed by
Franklin Furniture, Inc., or any other employer or
person engaged in commerce or in an industry affect-
ing commerce , to engage in a strike or refusal in the
course of their employment to perform any services,
nor will we threaten, restrain , or coerce Franklin Fur-
niture, Inc., or any other employer or person engaged
in commerce or in an industry affecting commerce,
where an object thereof is to force or require them to
cease doing business with ABC Installation , Paul Es-
calera, Welshire Carpet Service, or any other person.
CARPET, LINOLEUM, SOFT TILE AND RESILIENT
FLOOR COVERING LAYERS, LOCAL UNION No. 419,
AFL-CIO