Marble Polishers Local 16

National Labor Relations Board - Board Decisions

Jun 14, 1971

191 N.L.R.B. 120 (N.L.R.B. 1971)

120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marble Polishers Local Union No. 16, AFL-CIO and
Kendall Construction Company. Case 12-CC-708
June 14, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On February 18 and 23, 1971, Trial Examiner John
P. von Rohr 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 and a supporting brief.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Marble Polishers Local Union No. 16, AFL-
CIO, its officers, agents, and representatives, shall take
the action set forth in the Trial Examiner's recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Trial Examiner: Upon a charge filed
on August 24, 1970, the General Counsel of the National
Labor Relations Board, by the Regional Director for Region
12 (Tampa, Florida) issued a complaint on October 8, 1970,
against Marble Polishers Local Union No. 16, AFL-CIO,
herein called the Respondent or the Union, alleging that it
had engaged in certain unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B) of the National La-
bor Relations Act, as amended, herein called the Act. The
Respondent filed an answer denying the allegations of unlaw-
ful conduct alleged in the complaint.
Pursuant to notice, a hearing was held before Trial Exam-
iner John P. von Rohr in Miami, Florida, on November 5 and
6, 1970. All parties were represented by counsel and were
afforded opportunity to adduce evidence, to examine and
cross-examine witnesses, and to file briefs. The Respondent
191 NLRB No. 29
filed a brief on December 30, 1970, and it has been carefully
considered. On the entire record in this case, and from my
observation of the witness, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Kendall Construction Company, at times herein called
Kendall or the Company, is a Florida corporation with its
place of business located at West Palm Beach, Florida, where
it is engaged in-the business of construction and sale of resi-
dential homes. During the 12 months preceding the hearing,
Kendall sold homes in Florida valued in excess of $1 million
and during the same period purchased and received supplies
and materials valued in excess of $50,000 directly from points
and places located outside the State of Florida.
I find that Kendall is engaged in commerce within the
meaning of the Act and that the Board has jurisdiction over
the dispute involved herein.'
II THE LABOR ORGANIZATION INVOLVED
Marble Polishers Local Union No. 16, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
III THE UNFAIR LABOR PRACTICES
A. The Status of Clyde Batchelor as an
Independent Contractor or Employee
Batchelor, whom the General Counsel asserts is a subcon-
tractor, at all times material herein has been engaged in the
installation of ceramic tile in houses for the Kendall Con-
struction Company and other contractors. Since Respond-
ent's principal defense is based on its contention that Batche-
lor is an employee rather than an independent contractor, I
shall consider this issue before turning to the merits of the
case.
Batchelor testified that prior to coming to Florida in 1967,
he worked as a tile contractor in North Carolina for approxi-
mately 10 years. From 1967 to early 1969 he concededly
worked as an employee for various tile companies in the
Miami-Palm Beach area. In 1968 he became a member of the
Bricklayers Union and remained a member for about 1K
years. Batchelor said that he went in business for himself and
"started taking jobs on my own" in early 1969.
In 1970, Kendall undertook construction of approximately
35 houses in a project known as Hillcrest Heights in West
Palm Beach, Florida. Although, as indicated, Batchelor per-
formed work for contractors other than Kendall, during this
period the majority of the work performed by Batchelor was
for Kendall at the Hillcrest Heights project. Kendall testified
that although models on the project are changed from time
to time, he usually has a "half dozen" different models under
construction at any one particular time. Specifically, it is the
bathrooms and window sills of the homes which involve in-
stallation of tile. Batchelor is engaged to perform this tile-
' In International Brotherhood of Teamsters, Local 554 (Jamestown
Builders Exchange), 93 NLRB 386, the Board held that in determining
whether to assert jurisdiction in cases involving alleged secondary boycotts
in violation of Sec 8(b)(4)(A), it would take into consideration the opera-
tions of secondary employers to the extent that they are affected by the
alleged unlawful conduct Here Kendall (whom I find to be the secondary
employer) was engaged in the construction of 35 houses at the Hillcrest
Heights project, which project I hereinafter find was affected by Respond-
ent's unlawful conduct The cost of these homes ranged between $18,000
and $22,000 each. Taking into consideration Kendall's total business, as
stated above, I find the amount involved in the "affected operations" is
sufficient to meet the Board's jurisdictional standards.
MARBLE POLISHERS LOCAL 16 121
work as follows: He will go to Kendall's office, look over the
building plans, and give Kendall a bid naming his price for
any certain plan. The price includes labor and material.
Sometimes the bids are submitted in writing, at other times
they are oraL2 Concerning the basis for computing the bids,
Batchelor testified that he charges $2 a lineal foot for window
sills and $2 a square foot for bathroom floors and walls, plus
extra for labor and material if extra trim is involved.' On the
basis of this computation he receives an expected income
equivalent to the rate of $7 per hour.
Batchelor operates out of his home, does not, have a con-
tractor's license, uses his own truck for which he pays his own
expenses, and supplies his own tools and materials! Kendall
has indicated that he prefers Florida Tile (a brand of tile) and
it is Batchelor's practice to comply with this request.
Kendall does not withhold any deduction for income taxes
or social security from Batchelor's compensation. Batchelor
is paid in cash upon presentment of his statement when he
completes a job.' When he is paid he is required by Kendall
to sign a release of lien which reflects he has been paid for the
labor and materials. Kendall testified that this is required of
all his subcontractors.
Batchelor has a part-time helper whom he utilizes from
time to time at his own discretion. Batchelor pays the helper
directly, but makes no deductions from his pay. He furnishes
the helper with such tools and materials as are necessary to
do the job.
Although Kendall or one of his supervisors will notify
Batchelor when a house is ready for installation of the tile,
the record reflects that Batchelor, and his helper when
present, work on the job alone. The Kendall Construction
Company exercises no supervision over them whatsoever
while they are thus engaged in the performance of their work.
Batchelor is free to set his own hours, although he is expected
to complete a job within a reasonably established time.
As indicated above, Batchelor has worked for contractors
other than Kendall, these including Lutz Construction,
Zumpf Construction, Debro Builders, and Fink Construction
Company. Further, and aside from his not being required to
work exclusively for Kendall, there have been times when
Kendall sought to have Batchelor work on a house, but Bat-
chelor was unable to accept the job because he was engaged
in the installation of tile for other contractors. On these occa-
sions, Kendall would find someone else to do the job.
Upon consideration of all the pros and cons pertaining to
the issue of employees vs. independent contractor, I am per-
suaded and find that on balance the evidence establishes Bat-
chelor to be an independent contractor rather than an em-
ployee.' While I am mindful that the evidence discloses
certain factors usually present in an employee relationship, I
briefly recapitulate the following considerations on which I
rely in finding the independent contractor relationship; thus,
Batchelor is free to engage the service of a helper, whom he
may hire or terminate at will. He does not work exclusively
The bids are submitted on a form statement on which Batchelor crosses
out the word "statement" and prints the word "bid." The bid gives the price
and describes the work to be performed.
Batchelor utilizes the same price formula in bidding jobs for other
contractors.
Batchelor's truck does not have any name on it , although a local statute
provides that commercial vehicles should be so marked
Usually he presents a statement on a Friday, although this is not always
so
The facts in this case, in my opinion, are more closely parallel to those
in Carpet Layers, et at, Local 419 (Sears, Roebuck & Co), 176 NLRB No.
120, on which the General Counsel relies, than those in Carpet Layers, et
al, Local 1238 (Robert A. Arnold d/b/a Arnold's Carpet), 175 NLRB No.
50, on which the Respondent relies
for Kendall Construction and in fact may refuse Kendall's
business when offered. He sets his own hours, utilizes and
pays for his own truck and its maintenance, furnishes his own
tools and materials, is paid without any deduction for social
security or other taxes, and works entirely without the super-
vision of any supervisor of Kendall. Conversely, the evidence
does not reflect that Kendall has reserved the manner and
means in which Batchelor performs his work. Accordingly,
and for the reasons aforesaid, I conclude that Batchelor is an
independent contractor, not employee.
B. The Merits of the Dispute
In about the latter part of January or early February 1970,
Lee Fornari, Respondent's president and business Agent,
visited the Hillcrest Heights project and entered the bath-
room of a home where Batchelor was installing tile with his
helper, Clay Meyers. Concerning the conversation which
Fornari had with Batchelor and Meyers at this time, Batche-
lor testified as follows:
He [Fornari] came in, and I had known him from just
seeing him around. We talked, and he told us he was
trying to organize all of the small companies. All the tile
companies, trying to get them to sign a contract with the
Helpers Union, and he wanted to get me to sign a con-
tract with them and get Clay to join the Helpers Union
. he explained to me that if I signed a contract with
his union what benefits I would have to withhold for
Clay, the Health and Welfare, what percentage of money
that I would have to pay and what I would have to take
out of his wages.
He explained to Clay how much he would get per
hour, what would have to come out of his pay percent-
agewise, and his dues, his initiation fee or whatever it
was, I guess, that goes to join up, and the benefits he
would get, his Health and Welfare, retirement, his vaca-
tion time.
Clay told him that he wouldn't be interested in joining
the union, that he was just a part time helper and was
thinking about going back to school, or starting college,
and he didn't think that what he worked would be any
benefit to him to join, no more than he worked, no longer
than he planned to work.
I told him I would have to see if Mr. Kendall or
anybody else would let me go up on the contract price
where I could afford to pay the price that they was
wanting to sign a contract with them. He said he would
check with me the following day, or the next day.
Clay Meyers, the helper who was involved in the above
conversation with Fornari, was called as a witness by the
General Counsel and substantially corroborated the tes-
timony of Batchelor as set forth above.
Fornari, who said he had known Batchelor when he
worked for Carmen Floor Covering in Lake Worth, Florida,
gave his version of this conversation as follows:
I found him [Batchelor] in the bathroom in one of the
houses there. The first thing I asked him was, "What are
you doing over here?" He said, "Well, I'm over here
now.,,
So, then I asked who the helper was, and he said the
helper was his girl friend's son. At this time I asked the
helper how much he was making per hour. Well, he
didn't have a chance to respond, or wouldn't respond.
Mr. Batchelor then asked me, "How much are the help-
ers getting now," the union helpers. I told him, and then
I addressed the helper and told him what his benefits
would be if he was in the union.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Batchelor at this point said, "Well I'll see Mr. Kendall
if I can get more money for the helper." I said, "That
will be fine. I'll be back tomorrow," and then I left.
I credit the testimony of Batchelor, as substantially cor-
roborated by Meyers,' over that of Fornari concerning this
conversation. Aside from my observation of the witnesses, it
is noteworthy that Fornari gave no explanation for coming
to the Hillcrest Heights project and seeking out Batchelor
and his helper in the bathroom of the house in which they
were working. I hardly think this appearance was coinciden-
tal and I am persuaded that it was for the purpose as reflected
in the testimony of Batchelor and Meyers.
It is undisputed that Fornari returned to the same home at
the Hillcrest Heights project on the day following the above
conversation. According to Barchelor, the conversation was
brief. Fornari asked "what he had decided on," to which he
replied that he had decided "against it" and that he could not
sign a contract with the Union. Batchelor testified that For-
nari thereupon said "he was going to use some powers" and
he then walked out. Concerning this conversation, Fornari
testified as follows: "I asked him [Batchelor] if he talked to
Kendall, and he said yes, and he said that Kendall wouldn't
give him any more money for the helper. So, I asked the kid
if he would like to belong to the union , and he said he would.
I said, `Well, we'll see if we can't do something about,' and
then I left." While I do not doubt that Fornari's version was
partially correct, I credit Batchelor as to the foregoing col-
loquy between he and Fornari concerning which he testified.'
It is undisputed that Respondent began picketing at the
Hillcrest Heights project on August 18, 1970. The legend on
the picket sign stated as follows?
Kendall Construction
Lowers the Standard of Union Tile Helpers
This is not directed at any other contractor
No Stoppage of Work or Deliveries Intended
Marble Polishers Local Union 16 AFL-CIO
At the time the picketing began, the following employees
of the following subcontractors had been working and were
scheduled to work at the Hillcrest Heights project: electri-
cians, employees of Arrow Electric Company; plasterers, em-
ployees of Sleepy Harper Plastering Company; and plumbers,
employees of Logsdon Plumbing, Inc. While it appears from
the testimony of Kendall that all work on the project ceased
after the picketing began on August 18, Granville Woosley,
Kendall's construction foreman, testified without contradici-
tion that the aforementioned employees came to the job the
next morning (August 19) but would not cross the picket line
and go to work. Also on August 19, the carpenters (em-
ployees of Kendall) worked on the job for 1 hour, but left the
I am mindful that Meyers did not mention anything in his testimony
about Fornari's reference to a contract when talking to Batchelor , as Batche-
lor testified However, whatever the reason for this omission (and Meyers
was not cross-examined or queried about it further) I still credit the tes-
timony of Meyers over that of Fornari
Meyers, who was present during this conversation, gave testimony
which in substance supported that of Batchelor Meyers added that Batche-
lor also told Fornari that he had spoken to Kendall about the matter and that
Kendall said he would not give him more money . Elsewhere in his tes-
timony, Batchelor testified that after his first conversation with Fornan he
did talk to President C W Kendall, told him about having "union prob-
lems," and asked if he could get more money per job so that he could raise
the pay of his helper. He said, however, that Kendall said no to this proposal
I do not credit the testimony of C W. Kendall, which Respondent
denies and which is unsupported by any other testimony, that he saw Batch-
elor's name on the picket sign on the first day of the picketing.
job after a representative of the Carpenter's Union came up
and spoke to them.
The picketing continued from August 18, 1970, until Octo-
ber 1, 1970, at which time Respondent ceased picketing, ap-
parently pending resolution of the unfair labor practice
charges herein.
Turning to my conclusions, from the conversations which
Union Representative Fornari had with Batchelor and his
helper on the two successive days in latter January or early
February 1970, as hereinabove set forth, it is abundantly
clear, and I find, that Respondent at this time sought to enter
into a collective-bargaining relationship with Batchelor. As
reflected in the credited testimony of these conversations,
Batchelor refused to enter into such a relationship, where-
upon Fornari indicated that Respondent would exercise fur-
ther pressure to obtain this objective. Batchelor thus clearly
was the primary employer with whom Batchelor had a dis-
pute. Upon the entire record in this case, I am persuaded and
find that Respondent's true objective in picketing the Hill-
crest Heights project was to enmesh the secondary construc-
tion employers and to cause the Kendall Construction Com-
pany to cease doing business with Batchelor, all in
furtherance of its aforesaid dispute with Batchelor. In making
this finding, I am aware that approximately 6 months elapsed
between Fornari's conversations with Batchelor and Re-
spondent's inception of the picketing at the Hillcrest Heights
project. However, I am satisfied that the picketing at this time
was in furtherance of the aforementioned dispute with Bat-
chelor for the reasons that: (1) Respondent offered no evi-
dence whatsoever to indicate that it had any dispute with the
Kendall Construction Company. Indeed, Fornari conceded
that he never so much as spoke to anyone connected with
Kendall before or after the picketing began; (2) Respondent
offered no evidence to indicate that Kendall Construction
Company "lowered the standards of union tile helpers," as
stated on the picket sign; and (3) Respondent in fact offered
no explanation whatsoever for picketing Kendall's Hillcrest
Heights project on and after August 18, 1970.
In sum, and for the reasons stated above, I find that Re-
spondent violated Section 8(b)(4)(i)(ii)(B) of the Act by pick-
eting Kendall Construction Company, with an unlawful ob-
ject of forcing Kendall to cease doing business with
Batchelor, with whom the Respondent had a dispute.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
secondary employer described in section I, above, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
Having found that the Respondent has engaged in and is
engaging in certain unfair labor practices in violation of Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act, it shall be recommended
that Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact and on the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Kendall Construction Company is engaged in commerce
and in an industry affecting commerce within the meaning of
Section 2(2), (6), and (7) and Section 8(b)(4) of the Act.
MARBLE POLISHERS LOCAL 16
2. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By inducing and encouraging individuals employed by
Kendall Construction Company, Arrow Electric Company,
Sleepy Harper Plastering, and Logsdon Plumbing Company,
to engage in a strike or a refusal in the course of their employ-
ment to perform services , with an object of forcing Kendall
Construction Company to cease doing business with Clyde
Batchelor, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(b)(4)(i)(B) of the Act.
4. By threatening, coercing, and restraining Kendall Con-
struction Company with an object of forcing it to cease doing
business with Clyde Batchelor , the Respondent has engaged
in unfair labor practices within the meaning of Section
8(b)(4)(ii)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, and conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:'°
ORDER
Marble Polishers Local Union No. 16, AFL-CIO, its offic-
ers, agents, and representatives , shall:
1. Cease and desist from:
(a) Inducing or encouraging employees or individuals em-
ployed by Kendall Construction Company, Arrow Electric
Company , Logsdon Plumbing Inc., and Harper Plastering
Company, or any other person engaged in commerce or in an
industry affecting commerce with whom they have no pri-
mary labor dispute , to engage in a strike or refusal in the
course of their employment to perform services where an
object thereof is to force or require the above-named persons
to cease doing business with Clyde Batchelor under circum-
stances prohibited by Section 8(b)(4)(i)(B) of the Act.
(b) Threatening , restraining, or coercing Kendall Con-
struction Company or any other persons engaged in com-
merce or in an industry affecting commerce , where an object
thereof is to force or require Kendall to cease doing business
with Clyde Batchelor , under circumstances prohibited by
Section 8(b)(4)(ii)(B) of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
`o 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 waived for all purposes.
" In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
123
(a) Post at its offices , meeting halls and all other places
where notices to its members are customarily posted , copies
of the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for Re-
gion 12 , shall, after being duly signed by a representative of
the Respondent , be posted by Respondent immediately upon
receipt thereof, and maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places where
notices to members are customarily posted . Reasonable steps
shall be taken by Respondent to insure that said notices are
not altered , defaced , or covered by any other material. Sign
and mail to the Regional Director for Region 12 sufficient
copies of said notice on forms provided by him for posting by
the Kendall Construction Company, if willing.
(c).Notify the Regional Director for Region 12, in writing,
what steps Respondent has taken to comply herewith."
" In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read-
"Notify the Regional Director for Region 12, in writing , within 20 days from
the date of this Order, what steps have been taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in or induce or encourage any
individual employed by Kendall Construction Com-
pany, Arrow Electric Company, Logsdon Plumbing
Inc., Harper Plastering Company, or by any other per-
son engaged in commerce or in industry affecting com-
merce, to engage in a strike or refusal in the course of
their employment to perform services, where an object
thereof is to force or require Kendall Construction Com-
pany to cease doing business with Clyde Batchelor.
WE WILL NOT coerce or restrain Kendall Construc-
tion Company or any other person engaged in commerce
for such an object.
MARBLE POLISHERS LOCAL
UNION
No. 16, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consectuive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Room
826, Federal Office Building, 51 SW. First Avenue, Miami,
Florida 33130, Telephone 305-350-5391.