Local No. 980

LOCAL NO. 9 8 0 469 CONCLUSIONS of LAW 1. International Association of Machinists , AFL-CIO, is a labor organization with- in the meaning of the Act. 2. All production and maintenance employees of Respondent at its Cuba, Missouri, plant, but excluding office clericals, guards, watchmen , professionals, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. 3. At all times since July 16, 1956, the Union has been, and now is, the exclusive representative of all the, employees in the aforesaid unit for the purpose of collec- tive bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with the Union as the exclusive representa- tive of the employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating with respect to its employees' terms and conditions of employ- ment, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By the foregoing conduct, by interrogating employees concerning their feeling and attitude toward the Union and their position with respect to a scheduled Board election, by warning employees that the coffee break and overtime work would be eliminated and the workweek reduced if they selected the Union as their bargaining representative, by promising an employee more pay if he would agree to side with the Respondent in the forthcoming election, by warning an employee that his future with the Company might be jeopardized by continued adherence to the Union, by specifying various stratagems to which Respondent would resort to impose economic reprisals upon the employees for having designated the Union as their collective- bargaining representative, by threatening not to give overtime to unionmen, by reminding employees that the coffee breaks were eliminated because the Union had been voted in as collective-bargaining representative, and by discriminatorily pro- hibiting an employee from and threatening employees for engaging in union talk during working time for the purpose of impeding their self-organizational efforts, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 8. The Respondent has not engaged in unfair labor practices by discharging Ray- mond Richardson and by other conduct, alleged in the complaint, as to which no find- ing of a violation has been made. [Recommendations omitted from publication.] Local No. 980, International Hod Carriers ', Building & Common Laborers' Union of America, AFL-CIO, and its agent, Robert Myers and The Kroger Company. Case No. 5-CC-70. Novem- ber 12,1957 DECISION AND ORDER On May 22, 1957, Trial Examiner Herbert Silberman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain un- fair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Charging Party, the General Counsel, and the Respondents filed ex- ceptions to portions of the Intermediate Report. The General Coun- 119 NLRB No. 58. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sel and the Respondents filed briefs supporting their exceptions, and the Charging Party filed a memorandum in support of the Inter- mediate Report.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the modification noted below. The Trial Examiner recommended that the Respondents be ordered to cease and desist from inducing or encouraging the employees of any employer with whom The Kroger Company might be engaged in work on any common construction job site from engaging in a strike for an objective proscribed by Section 8 (b) (4) (A). The General Counsel and the Charging Party excepted to the proposed order on the ground that it should not be limited to construction projects where The Kroger Company may be employing nonunion labor, and pro- posed that it should be made effective without regard to where the inducement takes place. We find merit in these exceptions as we perceive no significant difference between this case and other common situs picketing cases in which our order has been framed in the terms of the proscriptions of Section 8 (b) (4).' We shall, therefore, issue the type of order customarily used to remedy violations of Section 8 (b) (4) (A). ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondents Local No. 980, International Hod Carriers', Building & Common Laborers' Union of America, AFL-CIO, and its agent Robert Myers, their officers, agents, succes- sors, and assigns shall : 1. Cease and desist from engaging in, or inducing or encouraging the employees of Muirhead Construction Company, Dickson & Chris- tofer, Air Conditioning Corporation, Starr Electric Co., Reed-Hay- den, Inc., E. L. Thomas, Adam Construction Company, or any other employer, to engage in a strike or concerted refusal in the course of their employment to perform services, where an object thereof is to force or require any employer or other person to cease using, selling, 1 As the record , exceptions , and briefs adequately present the issues and positions of the parties, the Respondents' request for oral argument is hereby denied. 2Roanoke Building & Construction Trades Council, AFL-CIO, et al. ( The Kroger Company), 117 NLRB 977. LOCAL NO. 980 471. handling, transporting, or otherwise dealing in the products of The Kroger Company, or to cease doing business with that Company. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting halls copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondents' representatives, be posted by them immediately upon receipt thereof, and be maintained by them for sixty (60) consecutive days thereafter in conspicuous places, includ- ing all places where notices to members of Local 980 are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Fifth Region signed copies of the notice attached hereto marked "Appendix," for posting at the premises of Muirhead Construction Company, Dickson & Chris- tofer, Air Conditioning Corporation, Starr Electric Co., Reed-Hay- den, Inc., E. L. Thomas, Adam Construction Company, and the "Searstown" project in Roanoke, Virginia, the employers willing, for sixty (60) consecutive days, in places where notices to employees are customarily posted. (c) Notify the Regional Director in writing, within ten (10) days from the date of this Decision and Order, what steps the Respondents have taken to comply herewith. 3In the event that this Order is enforced by a decree of a United States Court of Ap- peals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL No. 980, INTERNATIONAL HOD CARRIERS', BUILDING & COMMON LABORERS' UNION OF AMERICA, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT engage in, or induce or encourage the employees of Muirhead Construction Company, Dickson & Christofer, Air Conditioning Corporation, Starr Electric Co., Reed-Hayden, Inc., E. L. Thomas, Adam Construction Company, or of any other employer, to engage in, a strike or concerted refusal in the course of their employment to perform services, where an object thereof is to force or require any employer or other person to cease using, 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selling, handling, transporting, or otherwise dealing in the prod- ducts of The Kroger Company, or to cease doing business with that Company. LOCAL No. 980, INTERNATIONAL HOD CARRIERS, BUILDING & COMMON LABORERS' UNION OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) Dated---------------- By------------------------------------- (ROBERT MYERS, Agent) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE . Upon charges filed by The Kroger Company, herein referred to as Kroger or as the Company, the General Counsel for the National Labor Relations Board, by the Regional Director for the Fifth Region (Baltimore, Maryland), on February 15, 1957, issued a complaint against the Respondents above named alleging that they had en- gaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notices of hearing thereon were duly served upon the parties. The Respondents filed an answer, verified February 22, 1957, denying that they committed the alleged unfair labor practices. Pursuant to notice, a hearing was held in Roanoke, Virginia, on March 27 and 28, 1957, before Herbert Silberman, the duly designated Trial Examiner. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. The parties waived oral argument at the close of the hearing. A motion made by the General Counsel, at the close of the hearing, to conform the pleadings to the proof was granted. Decision, however, was reserved on the Respondents' mo- tion to dismiss the complaint. This motion is now disposed of in accordance with the findings and conclusions made below. Pursuant to leave granted the parties at the hearing, briefs were filed with the Trial Examiner on behalf of the General Counsel, the Charging Party, and the Respondents, which have been given careful con- sideration. Upon the entire record in the case, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Kroger Company, an Ohio corporation with its principal place of business lo- cated in Cincinnati, Ohio, is engaged in the operation of a chain of retail food stores in 19 States. Its annual gross sales are in excess of $20,000,000. Involved in this proceeding is Kroger's Roanoke, Virginia, division, which maintains and operates a warehouse, office, construction department, bakery, and garage in the Roanoke area of Virginia and retail stores in Virginia, West Virginia, North Carolina, and Tennes- see. Foodstuffs and other products of a value in excess of $100,000 are shipped an- nually from the Company's Roanoke warehouse to points outside the Commonwealth of Virginia. Foodstuffs and other products of a value in excess of $1,000,000 shipped from points outside the Commonwealth of Virginia are received, annually, by the Company at its Roanoke warehouse. The Respondents admit, and I find, that The Kroger Company is engaged in commerce within the meaning of the Act. LOCAL NO. 980 II. THE RESPONDENTS 473 Local No. 980, International Hod Carriers', Building -& Common Laborers' Union of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. Robert Myers is, and has been at all times material hereto, the agent and secretary-treasurer of Local 980 within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES The activities complained of herein were prompted by the Respondents' objections to the employment of certain nonunion laborers on December 14 and 15, 1956, at a building project. During the times material hereto, Sears, Roebuck & Company was developing a parcel of land, known as "Searstown," fronting on Williamson Road in Roanoke, Virginia, as the site of a large retail store and service station for its own use and a contiguous retail store for the use of The Kroger Company as its tenant. The construction work was being performed by Muirhead Construction Company, the prime contractor, and various subcontractors who had been engaged by Muirhead. Muirhead and the subcontractors working on the project employed members of the building trades unions and observed the wage provisions and other employment con- ditions called for by their respective collective-bargaining contracts. Kroger had entered into an agreement with Sears for the rental of a retail store in "Searstown" for a term of 20 years, commencing upon the completion of the project on or about February 28, 1957. Sears was responsible for the erection of the build- ing to be occupied by Kroger while the latter undertook to provide and install the store fixtures. Accordingly, Kroger arranged to deliver to the job site on December 14 and 15, 1956, four trailerloads of fixtures which were shipped in its own vehicles from its central equipment depot in Cincinnati. Kroger through its construction su- perintendent, Frank M. Ling, hired Thomas H. McCraw to provide the necessary laborers to carry the fixtures from the trailers into the still uncompleted store. An issue in this case is whether McCraw and the laborers who worked under his direction were employees of Kroger, as is the Respondents' contention, or whether McCraw was an independent contractor as is alleged in the complaint. Fixtures from 2 of the 4 trailers were unloaded between 8:15 a. m. and 2 p. m. on December 14, 1956, with the assistance of McCraw and the laborers he brought with him. As each trailer was emptied, it was removed from the job site. The other two trailers did not arrive until the next morning so that between 2 p. m. on December 14 and 8 a. m. on December 15, there were no Kroger trucks on the project.' Knowledge of the arrival of McCraw and the laborers, who were not members of any union, at the project became generally known to the union employees work- ing there. Several members of Local 980 telephoned Myers with complaints that nonunion workers were unloading fixtures from Kroger trucks.2 Myers thereupon ordered a sign prepared which read, "Kroger unfair to Laborers Union No. 980." Myers took the sign with him to the project arriving about 12:15 p. m. After enter- ing upon the grounds and observing the unloading of a Kroger trailer, Myers made arrangements for a picket to patrol the project entrance closest to the Kroger store with the sign he had prepared.3 This entrance is about 200. feet from the store and about 150 feet from where the Kroger trailers were parked. The General Counsel contends that, in the circumstances, Myers should have sought permission to place the picket closer to the Kroger trailer rather than at a common entrance used also by employees of the various contractors on the job. In consequence of the appearance of the picket, employees of all the contractors 4 walked off the job and remained away from work for the balance of the day .5 Of the 150 to 175 men on the job, the only ones who did not leave their jobs after the picketing commenced were those who were handling materials such as cement i In this regard I credit the testimony of Ling and Arthur Juergens despite the testimony of Charlie E. Harris that he saw a Kroger trailer on the job site as late as 4 p. in., on December 14. 2 Approximately 50 members of Local 980 were working for contractors at the job site on December 14, 1956. 3 There are several entrances to the project. 4 The contractors who had employees working on the project on December 14, 1956, are : Muirhead Construction Company, Dickson & Christofer, Air Conditioning Corporation, Starr Electric Co., Reed-Hayden, Inc., E. L. Thomas, and Adam Construction Company. G The next day, December 15, was a Saturday, which was not a working day for these employees. Work on the project returned to normal by the following Monday so that the picketing affected work on the project for one-half day only. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which would have been ruined had the men left without completing their work. Myers testified that about 10 or 15 men working at the project spoke to him about the picket and he may have told them that Kroger was employing nonunion working- men. He further testified that he told some plasterers, tenders, masons, and cement finishers, who work with materials which set and harden, that "if they had anything, any masonry materials, or anything that would affect the contractor's affairs, to go back and finish it, I thought it was his duty to do so." However, to all other employees who approached him,. Myers pointing to the picket sign said, "That speaks for itself, and you'll have to be your own judge, you'll have to make up your own mind" and "let your conscience be your guide." Not long after the picket was stationed, Myers had a conversation with several of Kroger's representatives. Myers was asked what was the trouble, why he had stationed the picket. Myers indicated that Kroger was trying to defeat the union program, or campaign, in Roanoke and made some mention of a possible contract between Local 980 and Kroger. None of Kroger's representatives told Myers that the laborers were not employed by Kroger but were employed by an independent contractor. At the hearing, Myers explained that his purpose in picketing the project was to organize the laborers who were unloading Kroger's trailers and if Kroger had agreed to raise their wages to the union scale, it would have facilitated his organizational work. He testified that he was prepared to remove the picket if Kroger met union wage scales and union working conditions on the job. How- ever, inconsistent with this is other testimony by Myers that "it was my intention to keep [the picket] there as long as Kroger was doing any business around that place, as far as doing it with nonunion laborers." The picket remained at the project entrance until 5 p. m. on December 14, although about 2 p. m. the Kroger trailers and McCraw and his men left the site. The next day, Saturday, December 15, McCraw and his laborers unloaded two more Kroger trailers, which were brought to the project that day. They worked from about 8 a. m. until about 11 a. m. when the last of the four trailers was emptied. McCraw and his men then left and the final Kroger trailer was removed about 1:30 p. in. From 10:30 a. m. until 4:30 p. m. the project was again picketed by Respondents in the same manner as on the previous day. There is no evidence that this picketing caused any employees to refuse to do any work because Saturday was not a working day for the contractors on the project. The unloading of the Kroger trailers having been completed on Saturday, December 15, McCraw and his men did not return the following Monday and the Respondents did not engage in any further picketing of the project. The Respondents' withdrawal of the picket was in accord with what Myers had told James S. Trogdon, Jr., Muirhead's super- intendent for the "Searstown" job. The latter testified that on December 14 he had asked Myers how long the picketing would continue and Myers replied that the nonunion laborers would have to leave the project before the picket would be removed. The Issues The position of the General Counsel in this case is that any dispute Local 980 may have had was with McCraw, an independent contractor, that among the objects of Local 980 and its agent, Myers, for picketing the "Searstown" project was to force or require the various subcontractors on the job to cease doing business with Muirhead, to force or require Muirhead to cease doing business with Sears, to force or require Sears to cease doing business with Kroger, and to force or require Kroger to cease doing business with McCraw, and that the Respondents induced and encouraged employees of the contractors "and of other employers" 6 to engage in strikes or concerted refusals in the course of their employment to per- form services. The unlawful inducement, it is contended, stems from Myers' remarks to employees, the location of the picket 150 to 200 feet from the scene of the unloading, picketing at times when employees of the primary employer were not on the job site, and the fact that the picket sign indicated a dispute with Kroger instead of with McCraw. The Respondents contest McCraw's status as an inde- pendent contractor and argue that the laborers whose presence precipitated the picketing were employees of Kroger and, further, that they were privileged under the law to advertise their dispute with Kroger arising from the fact that Kroger was undermining union wage standards and conditions of employment by using nonunion laborers. It is Respondents' position that because the laborers involved 6 There is no evidence that Sears had any employees on the job site on December 14 or 15, or that employees of any employers, other than the contractors named above, were affected by the picketing. LOCAL NO. 980 475 in this case reported for work only at the "Searstown" project there was no other place where the Union could make its organizational appeal to them and the fact that employees of the various contractors on the project walked off the job was merely incidental to lawful primary picketing. McCraw's Status Thomas H. McCraw testified that he has been in the hauling business for '32 years, has a contract carrier license, and has done work for Kroger at various times during the past 20 years. However, he further testified that his only assets were the "clothes I got on here" and a truck worth about $200.7 McCraw cannot read or write. He has no office or business telephone. He is usually found in a public area, which he referred to in his testimony as the "market," where laborers congregate and hold themselves available for casual employment. In addition, messages may be left for him with a nearby locksmith. McCraw further testified that he recruits his laborers from the "market" and has no regular employees. McCraw carries no workmen's compensation insurance, and makes no withholdings from wages he pays laborers on account of income tax or social-security tax. McCraw explained he had been told he was not required to make any such with- holdings because he has no regular employees whom he pays more than $50 a month. McCraw was engaged by Frank M. Ling, construction maintenance superintendent for the Roanoke division of The Kroger Company, on December 12, to provide the laborers 8 to unload the trailers on December 14 and 15. According to McCraw, "I told [Ling] I would get him four men, get a dollar an hour for them . and two dollars for myself and the truck." 9 This was the same rate which he had been paid by Kroger on previous jobs. Although Ling refused to admit on cross-exami- nation that he knew that McCraw had no regular employees, Ling admitted that he knew that McCraw "works the casual laborers." On both December 14 and 15, McCraw brought the laborers to the job site in his truck and took them back to the market when they had finished their work for the day. McCraw paid the men at the end of each day at the rate of $1 per hour. He was paid by Kroger, on December 17, a lump sum computed on the agreed- upon basis of $1 per hour for the laborers and $2 per hour for himself. Ling and Holsten, a carpenter leadman or foreman regularly employed by Kroger, were present while all four trailers were being unloaded. Holsten's function was to inspect the fixtures, to inform Ling of any damage, and with the assistance of the driver to dislodge the fixtures and carry them to the tailgate of the trailers. The laborers brought by McCraw then carried the fixtures into the Kroger store and placed them "practically in one pile" where Ling had instructed McCraw they should be deposited. McCraw did not carry any of the equipment himself but confined himself to directing the activities of the laborers. According to Ling, his function at the project on December 14 and 15 was "as an overseer, to observe the handling of the equipment, to check the amount of fixtures we had coming into the store which we were charged with." Ling denied that either he or Holsten supervised the work of the laborers. However, he testified that both he and Holsten would call McCraw's attention to anything that the laborers were doing wrong. An additional purpose that Ling and Holsten were serving was to see that McCraw and the laborers were paid only for the actual number of hours they worked. McCraw testified that he would not have handled the fixtures unless Ling or Holsten was present. There is no rigid rule for determining whether one is an independent contractor or an employee. Each case must be determined on its own facts by balancing the in- 4 Paxton C. Judge, vice president of The Kroger Company, testified that McCraw also owns tools such as dollies, jacks, and lifts which are ordinarily used in the moving of heavy equipment. McCraw made no reference to these tools in his testimony. If Judge's information is accurate, it may be inferred that the value of these tools is negligible. 8 Ling testified, "I told Mr. McCraw that he was to get the necessary laborers, and equip- ment, and to be at the Kroger site, 'Searstown,' Williamson Road, on December the 14th, at 8 a. in., to take equipment from the Kroger trailer into the store, and that there would be approximately four trailers." There is no evidence that the laborers used any tools or equipment furnished by McCraw in connection with the unloading of the Kroger trailers on December 14 and 7.5, although Ling also testified that "Mr. McCraw drove his truck up in front of the premises, and in the truck he had some colored men, and some equipment used to unload the equipment." 9 McCraw brought 4 laborers with him on December 14 and 6 laborers on December 15. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dicia pointing towards one against the attributes indicating the other relationship. While no single factor is conclusive "it has been generally recognized that an em- ployer-employee relationship exists where the person for whom the services are performed reserves the right to control the manner and means by which the result is accomplished. Conversely, an employer-independent contractor relationship exists where the control is merely limited to the results to be accomplished and does not apply to the method and manner of the services rendered." 10 A more specific delineation of the characteristics of each relationship is found in House Report No. 245 on H. R. 3020, 80th Cong., 1st sess. (1947), where the distinction between the terms "employee" and "independent contractor" is explained in the following manner: "Employees" work for wages or salaries under direct supervision. "Independ- ent contractors" undertake to do a job for a price, decide how the work will be done, usually hire others to do the work, and depend for their income not upon wages, but upon the difference between what they pay for goods, material, and labor and what they receive for the end result, that is, their profit. McCraw's remuneration for the services he performed for Kroger was computed on the basis of the number of hours he worked. It is argued that his earnings under his agreement with Kroger were not necessarily limited to $2 per hour but could have been augmented by the difference between the amount Kroger gave him on account of the laborers' services and what he in turn paid the laborers. This argu- ment fails for two reasons. First, it is based upon a supposition which is contrary to the facts. The facts in the matter are that McCraw gave each of the laborers $1 for every hour they worked on the Kroger job and Kroger in turn reimbursed him for this outlay. Second, the argument presupposes that Kroger was ignorant as to what McCraw was going to pay the laborers at the time his services were engaged. There is no evidence in the record to support this supposition. Ling, who acted for Kroger in its dealings with McCraw, did not testify he was unaware of what Mc- Craw had to pay the laborers. McCraw testified that "I told [Ling] I would get him four men, get a dollar an hour for them." If any inference were to be drawn from this somewhat ambiguous language, it would be that McCraw undertook to employ the laborers for the Kroger job at $1 per hour rather than that McCraw had entered into a contract under which he had sole authority to fix the laborers' wages.1' McCraw maintained no place of business, had no significant capital investment," and furnished no goods or material for the job. McCraw undertook no risk and conversely had no opportunity for gain apart from the compensation he received from Kroger for his services which was fixed at $2 per hour. Thus, he did not undertake the Kroger job "for a price" in the sense the expression is used in the committee report, nor depend upon "profit" for his income. Of significance also is that McCraw was engaged by Kroger on an hourly basis and Kroger had the right to terminate McCraw's services at will.'- With regard to supervision, although McCraw directed the work of the laborers, he had no discretion to determine what shall be done or when and how it should be done. Ling had instructed him when the trailers were to be unloaded and what he was to do, namely, to carry the fixtures from the Kroger trailers and deposit them at a particular place in the store. The more delicate job of dislodging the fixtures from the vehicles was performed by Holston, a Kroger leadman. In addition, 10 Steinberg ct Company, 78 NLRB 211, 221. " Respondents' counsel argues that this testimony by McCraw alone is sufficient to dispose of the issue as to whether the laborers were working as employees of Kroger. Because McCraw is an uneducated man I cannot ascribe as much meaning to the words he selected to express his thoughts as I would to the language employed by a more literate witness. Although I allude to the above-quoted testimony by McCraw in disposing of any supposition that Ling did not know that McCraw paid the laborers he hired in the "market" at the rate of $1 per hour, I do not construe the quoted language to mean that McCraw was testifying that lie undertook to hire the laborers for The Kroger Company as its employees. 13 According 'to McCraw his only possession of value is a truck worth $200. With respect to the Kroger job McCraw used the truck only to provide transportation. There is no evidence lie used any tools or special equipment to do the work. It is not possible from these facts to infer that any significant part of McCraw's earnings from the work he did for Kroger is attributable to a return on his investment in his truck. ""An important element bearing on the existence of the 'right to control' is the right of the employer to hire and discharge the persons doing the work, and where thg em- ployer has the right to terminate the relationship at will it indicates an employer-employee relationship." Citizen-slows Company, Inc., 97 NLRB 428, 432. LOCAL NO. 980 477 Holsten or Ling was present at all times while McCraw's men were handling the fixtures and it was their function to see that McCraw and the laborers were perform- ing the work satisfactorily. Thus, overall supervision of the transfer of the fixtures from the trailers into the store was being exercised by Holsten and Ling, not by McCraw. Despite the fact that instructions from Holsten and Ling were trans- mitted to the laborers via McCraw, the right to control the manner and the means by which they were performing their work was lodged with Holsten and Ling. Supporting this conclusion is McCraw's testimony that he would not have accepted responsibility for carrying the fixtures from the trailers into the store unless Holsten or Ling was present at all times. The factors just listed indicate that the relationship between Kroger and McCraw was that of employer-employee. On the other hand, factors suggesting that McCraw was acting as an independent contractor are that he does not work regularly for Kroger but during a period of 32 years has been working on a similar intermittent basis for many concerns in the Roanoke area,14 that he had sole discretion in the selection of the laborers to perform the unloading services for Kroger,15 and that he paid the laborers their wages at the end of each day and was not reimbursed by Kroger until after the entire job was completed. Despite these latter factors, I find that the dominant aspect of the relationship between Kroger and McCraw was that of employer-employee and that the laborers who were performing services for Kroger on December 14 and 15, 1956, were employees of Kroger and not of an independent contractor. Unlawful Aspects of Respondents' Conduct Having found that the laborers who unloaded Kroger's trailers on December 14 and 15 were the Company's employees, it follows that Respondents' grievance with respect to their employment was properly with Kroger. Respondents, therefore, were privileged not only to advertise their complaint against Kroger but also to address their appeal to the laborers at the "Searstown" project because these were the only premises where they were engaged in work for Kroger. Had Kroger alone been engaged in business at this place Respondents' activities would not be construed to violate Section 8 (b) (4) (A) of the Act which outlaws secondary boycotts. However, when the picketing complained of herein occurred, the prin- cipal work being performed at "Searstown" was by contractors who were en- gaged in the construction of the shopping center for Sears, Roebuck & Company and who were not involved in the dispute between the Respondents and Kroger. At the time, Kroger was engaged merely in the temporary task of bringing fixtures to its store site for later installation. Where, as in this case, both the primary (Kroger) and neutral (the contractors) employers are engaged in work at a com- mon site the problem is to distinguish between permissible primary union action and proscribed secondary action. "Picketing at a common work situs, to be law- ful, must be strictly confined to the primary employer involved in the dispute.16 If the record establishes that the picketing, viewed in the light of all the circum- stances, was not so limited, but was directed also to the neutrals at the job situs, it is proscribed by the Act." Brotherhood of Painters, Decorators & Paperhangers of America, Local Union No. 1730, 109 NLRB 1163, 1167. The picket sign used by the Respondents on the occasions in question was not objectionable. It un- ambiguously described Kroger as the employer with whom Local 980 had its dis- pute. But this does not necessarily resolve the issues in favor of the Respondents. The lawfulness of the picketing may be impeached by "conduct on the picket line or elsewhere [which] indicates that the dispute extends beyond the primary em- ployer, and thereby directly seeks to enlist the active participation of employees of neutral employers." 17 Such interdicted conduct appears from statements Myers 14 Intermittent employment by many employers also characterizes the laborers whom McCraw hired for the Kroger job. 15 Very little attention was given to the selection of the laborers hired for the Kroger job. McCraw testified he even did not know their names. 11 Local Union No. 55, etc. (Professional and Business Men's Life Insurance Company), 108 NLRB 363 ; Chauffeurs, Teamsters, Warehouseinen, etc. (Hoosier Petroleum Company), 106 NLRB 629, enfd. 212 F. 2d 216 (C. A. 7). 17 General Teamsters, Chauffeurs and Helpers, Local Union No. 249, etc., (Crump, In- corporated), 112 NLRB 311, 312. The validity of this quotation has not been disturbed by the question as to whether other aspects of the case have been overruled. Compare: Retail Fruit & Vegetable Clerks' Union, Local 1017, etc. (Crystal Palace Market), 116 NLRB 856, 859, 868, with Roanoke Building & Construction Trades Council, etc. (The Kroger Company), 117 NLRB 977, footnote 2. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made to employees of the contractors who spoke to him about the picketing and the testimony of Trogdon. According to Myers, 10 or 15 employees questioned him about the picketing. He testified that he pointed to the picket sign and said to them "that the sign speaks for itself," and that "you'll have to be your own judge, you'll have to make up your own mind" and that they should "let your conscience be your guide." Any doubt that these statements were artfully phrased requests to the employees to. honor the picket sign by walking off the job is dispelled not only by the fact that the em- ployees did leave their work but also by comparing these statements with the instructions Myers gave other employees who he believed should remain on the job despite the presence of the picket. To the latter, employees who were work- ing with masonry or other materials which would set and harden and who by leaving their jobs would have caused their employers special damages, Myers testified he said, "Go back and finish it." He explained, "I thought it was his duty to do so." I find, therefore, that Myers made direct appeals to employees .of neutral. employers to leave their jobs.18 That Respondents by picketing the "Searstown" project intended to encourage the union employees working for the contractors on the site to leave their jobs and thereby slow down, if not completely interrupt, the progress of the construc- tion is further evidenced by Trogdon's testimony. As superintendent for the prime contractor, Trogdon soon after the picketing commenced spoke with Myers. Ac-. cording to Trogdon, "What I was trying to find out from him was how long [the picketing] was going to last, I wanted to get back to work." Myers' answer was that the nonunion laborers working for Kroger would have to leave the project. Were it not Respondents' design to induce the union employees to remain away from their work until Respondents successfully resolved their dispute with Kroger, Myers would have had some more acceptable solution. At the very least he could have volunteered to inform the striking employees that the picket line was aimed only at Kroger and that the Union had no dispute with their employers.19 The General Counsel contends that there are factors other than those I have discussed above which also tend to prove that the picketing was not intended to be confined to an appeal to Kroger's employees. These are that Respondents did not seek permission to station the picket closer to the Kroger store than at an entrance to the project which was also used by employees of neutral employers 20 and that the picketing was continued during periods when no employees of Kroger were on the job site.21 Because I have reservations concerning the validity of this contention as applied to the facts herein and because these additional factors would merely cumulate further evidence in support of the finding I have already made that the picketing of the "Searstown" project was also directed to the employees of the contractors on the job site, I shall make no determination with respect to this contention. Because the picketing on December 14, 1956, was designed to, and did, induce employees of neutral employers at the "Searstown" project to leave their jobs, and was not intended to be confined to an appeal to Kroger's employees only, I find that it was not "primary picketing." 22 Respondents argue that, nevertheless, there is no violation of Section 8 (b) (4) (A) of the Act because the necessary unlawful object is absent. Respondents' contention, as advanced in their brief, is: "There is International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, Subordinate Lodge No. 92, etc. (Richfield Oil Corporation), 95 NLRB 1191; Glaziers' Union Local No. 27 of the Brotherhood of Painters. Decorators and Paper Hangers of America (Joliet Contractors Association), 99 NLRB 1391, 1395, enfd. 202 F. 2d 606 (C. A. 7). 19 Sales Drivers, Helpers & Building Construction Drivers, Local Union 859, etc. (Camp- bell Coal Company), 116 NLRB 1020, 1022. Compare : Brotherhood of Painters, Decorators of Paperhangers of America, Local Union No. 1730 (Painting and Decorating Contractors of America, etc.), 109 NLRB 1163, 1168. 2D Compare : United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (AFL), Local 106, etc. (Columbia- Southern Chemical Corporation), 110 NLRB 206; Retail Fruit & Vegetable Clerks' Union, Local 1017, etc. (Crystal Palace Market), 11.6 NLRB 856. n See : Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547. 22 Because Saturday, December 15, was not a workday for the contractors' employees and they would not have reported to the project for work on that day regardless of the presence or absence of a picket line, the picketing which took place on that day cannot be construed to have induced or encouraged employees of neutral employers engaged in work on the job site to refuse to perform services. LOCAL NO. 980 479 was no evidence in this case of anything which would establish the second element, and that is, that an object of the work stoppage was to force or require any em- ployer to cease doing business with any other person . There was just no evidence on that point. No demands were made upon anybody, in fact, there was no point of making any demands , because as Trogdon testified, nobody there was doing any business with Kroger, and had no way of influencing Kroger." It is further argued: "It must be clearly remembered that each and every one of the so-called common situs cases have to do with situations where pickets are directed against one em- ployer at a common job site, and in each such case the employer against whom the pickets are directed , is doing business with another company , or companies with whom it shares the job site. It is only when this business relationship exists that the courts are presented with a problem as to when such picketing at a common situs is proper, and when it is not proper." This argument is based upon a mis- conception concerning the scope of Section 8 (b) (4) (A) of the Act. It is not a necessary condition for establishing a violation of this Section of the Act that there be a business relationship between the employer with whom the boycotting union has its dispute and neutral employers whose employees have been induced or encouraged to withhold their services . The Act condemns all "secondary boy- cotts" which injure the business of persons not involved in the basic dispute and the Act is not limited in its application to such actions which have an object of interrupting the flow of business between a neutral and the "primary" employer. United Marine Division, Local 333, International Longshoremen's Association, etc. (New York Shipping Association), 107 NLRB 686; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 182, etc. (Jay-K Independent Lumber Corp.), 108 NLRB 1323, enfd. 219 F. 2d 394 (C. A. 2); Local 1976, United Brotherhood of Carpenters and Joiners of America, etc. (Sand Door and Plywood Co., 113 NLRB 1210, 1214, enfd. 241 F. 2d 147 (C. A. 9). By inducing employees of the contractors working on the "Searstown " project to leave their jobs Respondents are deemed to have intended the natural consequences of their conduct which in this case was to force or require the employers of these employees to cease doing business with other persons. Specifically, the subcon- tractors were forced to stop work they were doing for the prime contractor, and Muirhead, the prime contractor, was forced to stop doing work for Sears.23 Thus, Respondents induced employees of neutral employers to engage in concerted re- fusals in the course of their employment to perform services in pursuance of an object proscribed by the Act. Accordingly, I find that Respondents have violated Section 8 (b) (4) (A ) of the Act by picketing the "Searstown" project on Decem- ber 14. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents , set forth in section III, above , occurring in connection with the operations of The Kroger Company, described in section I, above, have a close, intimate , and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in activities which violate Section 8 (b) (4) (A ) of the Act, it will be recommended that they cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Respondents' unlawful conduct was prompted by the employment of non- union laborers by The Kroger Company and the intention of Respondents was to induce the employees of all employers who were then working on the "Searstown" project to leave their jobs. Respondents' boycott was aimed at all such employers indiscriminately. The testimony of Myers shows that it was complaints from mem- bers of his union who objected to working on the same job site with nonunion laborers that precipitated the picketing of the "Searstown " project on December 14, 1956, so that it may be inferred and anticipated therefrom that unless restrained Respondents might engage in similar conduct at other construction sites where The 2-3 It is true , as Respondents argue, that none of the contractors were doing business with Kroger. It does not follow therefrom that Respondents' thrust against them was un- related to its, dispute with Kroger . Despite the absence of specific testimony in this re- gard , it is reasonable to infer from all the evidence in the case that the Respondents' ultimate object was to cause pressure to be applied upon Kroger to discontinbe employing nonunion laborers on the "Searstown" project. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kroger Company may use nonunion laborers. The preventive purposes of the Act would be thwarted unless the order in this case is coextensive with the threat which exists that Respondents may in the future engage in similar , unlawful conduct at the "Searstown" or other building projects. In order, therefore , to prevent a re- currence of similar unfair labor practices , and thereby to minimize industrial strife which burdens and obstructs commerce, it will be recommended that the order in this case require the Respondents to cease and desist from the commission of unfair labor practices of the kind found here not only against the contractors who hap- pened to be affected by the December 14 picketing but against all other employers who might be engaged in work on any common job site where Kroger simultaneously may be using nonunion laborers. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By inducing and encouraging employees of Muirhead Construction Company, Dickson & Christofer, Air Conditioning Corporation, Starr Electric Co., Reed- Hayden, Inc., E. L. Thomas, and Adam Construction Company to engage in a strike or a concerted refusal in the course of their employment to perform services with an object of forcing or requiring their respective employers to cease doing business with any other person, the Respondents have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] F. W. Woolworth Company and Bakery and Confectionery Work- ers International Union of America , Local 119, AFL-CIO,. Petitioner F. W. Woolworth Company and Department and Specialty Store Employees Union, Local 1265, AFL-CIO, Petitioner F. W. Woolworth Company and Local Joint Executive Board of the Hotel and Restaurant Employees and Bartenders ' Inter- national Union, AFL-CIO, of Alameda County, on behalf of* Culinary Workers Alliance Local 31, and Cooks, Pastry Cooks and Assistants Local 228, Petitioner . Cases Nos. ?O-RC-3310,. f20-RC-3311, and 2O-RC-3343. November 12, 1957 DECISION, ORDER, AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a hearing was held before L. D. Mathews,. Jr., hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Mem- bers Murdock and Jenkins]. Upon the entire record in these cases, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. . 119 NLRB No. 56.