Building Service Employees Union, Local 32-J

BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 909 Building Service Employees International Union, Local 32-J, AFL-CIO and Terminal Barber Shops, Inc. Case No. 2-CC- 596. February 7, 1962 DECISION AND ORDER On June 14, 1961, Trial Examiner Eugene F. Frey issued his Inter- mediate Report herein, finding that the Respondent engaged in un- fair labor practices and recommending that it cease and desist there- from and take affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 McCulloch and Members Rodgers and Leedom]. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record. The Board affirms the Trial Ex- aminer's rulings and adopts his finding and conclusions. ORDER The Board adopts the Recommendations of the Trial Examiner with the modification that provision 2(c) read: "Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 1 'In the notice attached to the Intermediate Report marked "Appendix," the words "Decision and Order" are hereby substituted for the words "The Recommendations of a Trial Examiner," and the following paragraph is added to the notice: Employees may communicate directly with the Board's Regional Office ( 745 Fifth Avenue, New York 22, New York ; Telephone Number, PLaza 1-5500) if they have any question concerning this notice or compliance with Its provisions. In the event that this Order Is enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decision of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, in which all parties were represented by counsel, was heard before Eugene F. Frey, the duly designated Trial Examiner, in New York, New York, on various dates between February 7 and March 10, 1961, on complaint of the General Counsel of the National Labor Relations Board , as amended, and answer of Building Service Employees International Union, Local 32-J, AFL-CIO (herein called Respondent or .the Union), as amended. At the close of the hearing, General Counsel and Respondent made oral argument , but none of the parties have filed briefs with the Trial Examiner. Motions of Respondent to dismiss the com- plaint on various grounds, made during and at the close of the testimony, were taken under advisement and are disposed of by the findings and conclusions below.' 1 On March 30, 1901 , the parties submitted to' the Trial Examiner by letters agreed corrections of designation of certain formal exhibits Introduced by General Counsel, and 135 NLRB No. 73. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The main issues litigated were (1) the question of jurisdiction, and (2) whether the Union violated Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et seq. (herein called the Act), by picketing two places of business operated in New York, New York, by Terminal Barber Shops, Inc., the Charging Party herein (also called Terminal) and a subsidiary of Terminal described below. Upon the entire record, and from my observation of the witnesses on the stand,, I make the following: FINDINGS OF FACT 1. THE BUSINESSES OF THE EMPLOYERS INVOLVED A. The Terminal enterprise Terminal is a New York corporation, with its principal office and place of busi- ness located in New York, where it is engaged in the operation of 16 barbershops, furnishing barber and related services. Three of those shops, all in New York City,, are involved in this case and are located at 120 Broadway (herein called the 120, Broadway shop), in the Empire State Building at 350 Fifth Avenue (herein called; the Empire State shop), and in the Time and Life Building, at 111 West 50th Street (herein called the Time and Life shop). Terminal is the sole owner of all the stock of the following subsidiary corporations: (1) Charmode Beauty Salons, Inc., a New York corporation (herein, called'. Charmode), which operates in New York City two barbershops in which it fur- nishes barber and related services, and six beauty salons in which it furnishes hair- dressing and related beauty services; the barbershops, which are involved herein, are located in the Tishman Building at 666 Fifth Avenue (herein called the Tishman shop), and in Grand Central Terminal, East 42d Street and Vanderbilt Avenue (herein called the Grand Central shop). (2) Waldorf Products Co., Inc., a' New York corporation (herein called Wal- dorf) engaged in the business of procuring barber and beauty salon supplies and related materials and products for the use of Terminal, Charmode, and other enter- prises owned by Terminal as described below. (3) Terminal Barber Shops of Maryland (herein called Terminal Maryland), a corporation which operates a barbershop in Baltimore, Maryland, where it furnishes. barber and related services to the public. (4) Terminal Barber Shops of Pennsylvania (herein called Terminal Penn- sylvania), a corporation which operates two barbershops in Pittsburgh, Pennsyl- vania, where it furnishes the same type of services to the public as Terminal. (5) Terminal'Beauty Shops, Inc. (herein called Terminal Beauty), a corporation' which operates two beauty salons in New York City (aside from those run by Charmode), where it furnishes the same type of personal services as the Charmode salons. (6) George M. Stern Beauty Salon, Inc., a corporation which operates one beauty salon in New York City furnishing the same type of personal service' as the- Charmode salons.2 Terminal is a closely owned corporation, with three or four stockholders, and directors. Two of them are Jay Bauman and John R. Brown, who are also, president-treasurer, and executive vice president-secretary-general manager, respec- tively, of Terminal, and who hold the same offices in Charmode, Terminal Mary- land, Terminal Pennsylvania, Waldorf, and Terminal Beauty. The principal office additional facts regarding proceedings -,instituted by the Union in Case No. 2-RC-11136 (not published in NLRB volumes) before the National Labor Relations Board, and in, Cases Nos SU-34215 and SE-34078 before the New York State Labor Board In accord' ance with the stipulations, I correct the record as follows: (1) General Counsel's Exhibit No 1 is corrected to read in part as follows- 1-M General Counsel's Motion for leave to file Amended Complaint 1-N Amended Complaint 1-0 Affidavit of Service of Motion 1-P Respondent's Notice of Opposition to above Motion 1-Q Teletype of Trial Examiner granting Motion (2) The basic facts showing the proceedings in both representation proceedings noted' above are accepted as stipulated facts, to the extent noted hereafter. There are five or six other unnamed but inactive corporate subsidiaries of Terminal, which are not pertinent to the issues herein. BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 911 of'Terminal and each subsidiary corporation is located at 152 West 42d Street, New York City, New York, where payrolls and other records of all the corpora- tions are kept and maintained by administrative and clerical employees of Terminal. In some past years, Terminal and Charmode have filed consolidated tax returns. In their barbershop operations, Terminal and Charmode employ over 300 barbers. manicurists, cashiers, and floor managers. These corporations and Terminal Penn- sylvania have a common labor policy with respect to their barbers and manicurists, who are members of Local 760, Journeymen Barbers, Manicurists, Hairdressers and Cosmetologists International Union of America, which has executed a single collective-bargaining contract with Terminal covering all these employees in the New York and Pittsburgh barbershops .3 There is a constant interchange of barbers, manicurists, other employees, and working managers among the barbershops and beauty salons of Terminal and Charmode. All the barbershops in New York City, Baltimore, and Pittsburgh are advertised and known to the public as "Terminal Barber Shops," and their operations are constantly supervised andcontrolled by Vice President Brown, as general manager, and to a lesser extent by President Bauman_ All employees in the Terminal and Charmode barbershops are covered by single master insurance policies indemnifying said corporations against various types of claims. The record shows, and Respondent admits, that the sole function of Waldorf in the operation of the Terminal enterprise is the procurement of materials and sup- plies for use and incidental sale by all the barbershops and at least three of the beauty salons; there is no substantial evidence that it buys products or materials for use by or resale to sources outside the Terminal chain. Its procurement activities. are handled entirely from the common office of the Terminal enterprises noted above; it does not have employees separate from those of Terminal, nor does it own or operate any independent manufacturing, warehousing, or distribution facility, but arranges for delivery of supplies directly to various barbershops or beauty salons, or for routing through an independent warehouse operator in a, manner more fully described hereafter. I find that Waldorf is not an independent nonretail business, but merely a procurement arm or purchasing agent of the Terminal enterprise. In view of Terminal's sole ownership of the subsidiary corporations, their com- mon officers, directors, and stockholders, centralized top management and super- vision, common principal office and clerical and administrative staffs, the common labor policy of Terminal, Charmode, and Terminal of Pennsylvania, and the inter- change of employees and supervisory personnel among establishments of those cor- porations, I conclude and find that Terminal and its subsidiary corporations con- stitute a single integrated business enterprise and a single employer within the meaning of Section 2(2) of the Act .4 During the year 1960, in the course of its business, Terminal alone performed services in New York for the consuming public valued in excess of $1,400,000; including the business done by its Maryland and Pennsylvania subsidiaries, its gross volume was approximately $1,680,000. In 1959 Charmode furnished services to the public in New York valued in excess of $770,000, and in 1960 its gross volume was over $1,000,000. During 1960, the gross volume of business done by Tishman, 120 Broadway, Empire State, Grand Central, and Time and Life barber shops of Terminal and Charmode was approximately $534,000. In the same year, the total gross volume of business performed by the entire Terminal enterprise (including Waldorf) had a value in excess of $3,000,000. Thus, the entire enterprise satisfies the minimum standard set by the Board for assertion of jurisdiction over retail enterprises.5 While admitting this, and recognizing that the majority of the corpora- tions in the Terminal family are engaged exclusively in retail business, Respondent contends that the entire enterprise is a combination business, involving both retail and nonretail operations, to the extent that the Board should apply its nonretail standards under its rulings in American Linen Supply Co., et al., 12S NLRB 639, and New Pacific Lumber Co., 119 NLRB 1307, and that the $50,000 minimum nonretail standard is not satisfied by the facts herein, and that this standard is controlling because the nonretail aspects of the business exceed de minimis. The record shows, and Respondent admits, that during 1960 Waldorf and Char- s Employees of Terminal Maryland in Baltimore and beauty salon employees of Char- mode (the record does not show their number) are not represented by unions * Morelli Brothers and Capital Transport Co., Inc., 123 NLRB 635, 638 ; Hamilton Bros., Inc and B cE C Stevedoring Co , Inc ., 130 NLRB 233 ; and The Pamiily Laundfy/„ Inc., et al, 121 NLRB 1619, 1620. s Carolina Supplies and Cement Co., 122 NLRB 88, `912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mode had a combined direct and indirect inflow of materials and supplies, which were used only by establishments in the Terminal chain, valued at approximately $49,500.6 As this figure falls short 'of the $50,000 minimum nonretail standard, Respondent argues that the amount of such purchases is de minim is, when compared to the gross volume of business of the Terminal chain, and that the Board should not take jurisdiction herein under the cases above cited. I reject this argument. I have found that the Terminal family is a single employer and an integrated retail enter- prise, for purposes of jurisdiction, and that Waldorf's purchasing activities directly implement the main retail service activities of the whole enterprise. It is also clear that Charmode, in its purchasing activities, performs the same function for the beauty' salon service portion of the enterprise carried on in its salons. Neither Waldorf nor Charmode in this respect operate businesses separate and independent of the overall service function.7 Hence, I conclude that the Terminal enterprise is pre- dominantly an integrated retail enterprise rendering services to the ultimate con- sumer, with procurement aspects only incidental to its main purpose. The Board has held that determination of jurisdiction is based on the impact on commerce of an employer's total operation, and that it will assert jurisdiction over this type of enterprise if the employer's total operations meet either the retail or nonretail standards .8 Further, the legal jurisdiction prerequisite to application of the $500,000 gross annual volume retail standard is present, in that Terminal does business in more than one State through its Maryland and Pennsylvania subsidiaries, at least $5,000 worth of its supplies bought from whatever source are shipped annually from New York to the Maryland and Pennsylvania shops, and the total direct and indirect inflow of the enterprise, is very little short of $50,000 annually. Hence its com- merce operations are clearly not de minimis.9 Respondent also argues that only two Terminal barbershops, Tishman and 120 Broadway, were picketed and thus affected by the labor dispute, that the gross volume of business done in 1960 by those shops was only $197,984, hence the Board should not take jurisdiction under its ruling in McAllister Transfer, Inc., 110 NLRB 1769, 1771, where it held that it would consider for jurisdictional pur- pose (besides the operations of the primary employer) 10 "the operations of any secondary employers to the extent that the latter are affected by the conduct involved." In the McAllister case the Board considered the gross volume of business'done by secondary employers at three terminals affected by the secondary activities and found it sufficient to meet the applicable standard then controlling. As will appear here- after, however, the Union's complaint about loss of jobs by union cleaners, which gave rise to the picketing, involved not only the two shops picketed, but also the Grand Central and Empire State shops (where union contractors had been ter- minated and the Union threatened Terminal with picketing), the Time and Life shop (where a union contractor had been terminated), and the Estelle Wyler Beauty Salon of Charmode (where the Union tried to sign up an employee of a nonunion cleaner). In addition, the record shows that union agents had between April 1960 and January 1961 solicited employees of Todaro and other nonunion cleaning con- tractors at the Tishman, Empire State, and Grand Central barbershops, and the Wyler Beauty Salon, to join the Union. It is clear from this that at least five barber- shops and one beauty salon were involved directly or potentially in the dispute, as they were being cleaned by nonunion contractors with nonunion employees. As 6 Of this amount, $26,000 represents products procured directly from out-of-State by Adwe Laboratories, Inc, a New York City jobber and distributor, which are then resold and delivered to Charmode, after an internal double-billing and "wash sale" procedure between the two corporations which does not alter the fact of an original direct inflow in that amount to Adwe and ultimate sale thereof to Charmode and delivery to its salons. Contrary to Respondent's contention at one point, I find that these purchases constitute indirect inflow to Charmode within the definition of that term in, Siemons Mailing Service, 122 NLRB 81, 85 7 There is some testimony that a small but not clearly defined amount of products is sold by Waldorf to sources other than the Terminal establishments, but this does not alter the main conclusion that Waldorf exists mainly to procure supplies for the service operations of the Terminal chain 8Man Products, Inc., 128 NLRB 546; Indiana Bottled Gas Company, 128 NLRB 1441. 9 Cf Southwest Hotels, Inc. (Grady Manning Hotel), 126 NLRB 1151 ; Lamar Hotel, 127 NLRB 885; Catalina Island Sightseeing Lines. 124 NLRB 813. In applying its standards, the Board does not compare the relative sizes of the retail and nonretail aspects of the employer's operations T "H. Rogers Lumber Co, 117 NLRB 1732, 1733. "There is no evidence that the operations 'of Joseph H Todaro, the primary employer, meet any of the Board's jurisdictional standards BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 913 the gross annual volume of these establishments during 1960 was in excess of $685,000, I find that the retail business of Terminal as the secondary employer meets the jurisdictional standards set forth in the McAllister case. I conclude and find that Terminal and its subsidiary corporations are a single employer engaged in commerce within the meaning of Sections 2(6) and (7) and 8(b) (4) of the Act, and that assertion of jurisdiction herein is warranted. B. Terminal's cleaning problems; the connection of Joseph R. Todaro therewith At all times mentioned herein Joseph R. Todaro (herein called Todaro ) has been, and now is, employed by Terminal as a working manager and barber in its barber- shops in New York City. A barber of about 25 years' experience, Todaro had worked in that capacity for Terminal under prior and present managements from about 1935 to 1953. He returned to work for Terminal in March 1959 as working manager of its Tishman shop. He was transferred to the Time and Life shop in the same capacity when that shop opened in April 1960 and has worked there ever since. As working manager Todaro supervises the operations of other employees in the shop, and works as a barber when not engaged in such supervision. Like other barbers and manicurists in the shop, he is a member of Local 760 of the Barbers' Union aforesaid. As a barber he is paid at the rate fixed by that Union's contract with Terminal," and as working manager he gets $25 a week extra to com- pensate him for loss of customers , commissions, and tips when engaged in supervisory activity, and $10 a week additional for services as cashier of the shop. For many years, Terminal has had many of its barbershops and beauty salons, including the five involved herein , cleaned by contract cleaners, who did that work at night,12 after the shops were closed to the public , with their own employees, at negotiated fixed monthly prices per shop. For some years prior to 1960 , Anchor Cleaning Company had the cleaning contract for the 120 Broadway , Empire State, and Grand Central shops, while National House Cleaners had the contract for the Tishman shop. The employees of both are members of the Union. Anchor's original contract was written and was renewed periodically by oral extensions until it was canceled by Terminal sometime in August 1960; National House Cleaners operated only under an oral month-to-mouth contract until its cancellation in February 1960. The contracts of both we're terminated by Terminal at the above four shops because of unsatisfactory work and exorbitant prices for the amount of work being done. However, National still cleans two other Terminal shops located in hotels, where it cleans the entire building under contract with the hotel management ; Terminal pays for the shop cleaning in its rent to one hotel , and pays National directly at the other location. Respondent does not question that Anchor, National, and prior contract cleaners were independent contractors. When National's contract was terminated, an individual named George (last name unknown) was given the work at the Tishman shop upon recommendation by the "brush boy" concessionaire in that shop to Todaro, its manager. Todaro interviewed George, discussed price, told him what had to be done, and, after making a favorable recommendation to General Manager Brown, was authorized to hire George. This cleaner did the work for about a month, during which time he was not covered by any of the master insurance policies covering Terminal employees,13 did his work at night, and was not supervised in its performance by Todaro or any other Terminal official, supervisors, or employee; as part of his job as manager, Todaro inspected the shop daily before it opened to see if it was cleaned properly ; and if it was not clean, Todaro would tell George about it when he came in that evening. George's contract was terminated at the end of March 1960 by mutual agreement between him and Todaro because he was unable to handle the nightwork properly after handling another day job. Again on recommendation of the Tishman brush boy, Todaro interviewed one Sam Goddard , who was cleaning other establishments under the name of Sam's Cleaning Service, and, after some negotiation and on authority from Brown, made a contract with him to clean, the Tishman shop for $100 a month, and the Time and 11 This is a fixed weekly base pay, plus commissions of 50 percent of all gross weekly business over a fixed amount handled by him 12 The contract cleaning is distinct from incidental on-the -spot daytime cleaning per- formed by concessionaires in some shops, for which they are paid small fixed amounts weekly from the petty cash funds of the shops. 1'The classifications covered were barbers, manicurists , cashiers , hair dressers, and floor managers . Concessionaires, including shine boys and brush boys, are not covered 634449-02-vol 135-59 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D Life Shop for $150 a month after it opened. About the'same time, Brown himself negotiated with Goddard an extension of the contract to include the Estelle Wyler Beauty Salon at $220 a month. Goddard was paid by Terminal for two shops and by Charmode for Wyler. He hired and supervised his own employees, and received no supervision from Terminal except admonitions about poor work from Brown when- ever the latter got complaints from shop managers. Terminal canceled Goddard's contract at the three shops for poor work at the end of June 1960. While Goddard had the cleaning contract, he tried to interest Todaro in going into partnership with him in the cleaning business, but was unsuccessful for reasons dis- cussed hereafter. After Goddard's contract was canceled, Todaro asked Brown for a chance to clean the three shops, claiming he could do the work properly. He quoted prices higher than those paid to Goddard but, 'after negotiation with Brown, agreed to clean the shops at the same price as Goddard, and an oral contract was made on that basis. Todaro started to clean the three shops July 1, 1960. After the Anchor contract on the Grand Central, Empire State, and 120 Broadway shops was can- celed, Terminal extended Todaro's contract on September 1 to include those shops. Todaro's contract on the Wyler Salon was canceled at the end of August 1960 for unsatisfactory work; that location was given to another contractor who was procured by Miss Wyler, then part owner of the shop. Just before Christmas 1960, Todaro's contract was canceled at 120 Broadway for unsatisfactory work; Terminal at once made a contract for that shop with James Moore, a porter who cleans the bank in the building in which the shop is located; Moore cleans that shop with the aid of one employee, and gets $180 a month for his work, paid at the rate of $45 a week in cash out of the petty-cash fund of that shop. At the time of the hearing, Todaro was still cleaning the Time and Life, Empire State, Tishman, and Grand Central shops with a work force of two employees. C. The picketing After cancellation of the National and Anchor contracts, Donald F. Mumm, busi- ness agent of the Union, had several personal and telephone conversations with President Bauman, Vice President Brown, and Todaro, between March and October 1960, about the cancellations, in which he complained that Terminal had thereby deprived union cleaners of jobs, and sought to persuade it to reinstate these contrac- tors or make contracts with other union cleaners, so that members of the Union would have work. His discussions with Terminal will be considered in detail later. On August 11, 1960, the Union sent Terminal a letter, advising that it had received notice of the cancellation of the Anchor contract, complaining on the basis of an alleged talk with Brown of that date that Terminal intended to displace union mem- bers with its own employees to clean its shops, and advising that after Labor Day, "if our members have not been reinstated to their jobs in the above locations (citing Empire State, 120 Broadway, and Grand Central shops) the Union will picket these premises." Terminal replied by letter of September 6, admitting that as of Septem- ber 1 "a change has been made for economic reasons in the arrangements for cleaning services at several of our shops," but denying that Terminal would use its own em- ployees for this work, and stating that at each location affected the cleaning employ- ees "will be hired by a firm which is separate and distinct from our organization." The Union began to picket the Tishman shop on November 2, 1960, and the 120 Broadway Shop on November 14, 1960, with union members who were apparently not employees of Terminal or Todaro. The picketing continued until November 28, 1960, since which date Respondent has abstained under an agreement that there would be no picketing during the pendency of this case. At each shop the picketing was conducted by one picket at the street entrance to the main building which gave access by a stairway to a lower level or subarcade on which the Terminal shop was located. The picket carried a sign with wording on it substantially as follows: Office Cleaners Union on strike. Terminal Barber Shop, 666 Fifth Avenue,14 has displaced Local 32-J members by hiring non-union employees. Help us gain better conditions. Local 32-J, Building Service Employees International Union, affiliated with AFL-CIO, 250 West 57 Street, Circle 6-0800. The picketing was carried on only during the daylight hours when the barbershops were serving the public; there was no picketing after business hours when cleaning personnel were at work. As the Terminal barbershop was the only one in the main building at each address, it is clear that the picketing and signs were directed at the Terminal shops. "This address was on the sign at the Tishman shop; the sign at 120 Broadway had that address on it. BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 915 D. The issues The question of the legality or illegality of the picketing requires a determination of the exact status of Todaro under his cleaning arrangement with Terminal . General Counsel contends that he is an independent contractor of.that work , whose employees the Union was trying to organize, and hence was the primary employer, and that the picketing was illegal because its objective was to compel Terminal , a secondary employer, to cease doing business with Todaro and resume contractual relations with cleaning firms whose employees were members of the Union . Respondent argues Terminal was the sole, and thus the primary , employer with whom the Union had a dispute, in that the Union was trying to persuade Terminal to cease cleaning its shops with its own employees who operated under the supervision of Todaro , as agent of Terminal, that Todaro was not an "employer" or "person" within the meaning of the Act, hence the picketing of Terminal for the above purpose was legal, protected activity. 1. The status of Todaro In determining whether an individual is an employee or an independent contractor, the Board applies the "right of control" test: Where the person for whom services are performed retains the right to control the manner and means by which the desired result is to be accomplished, the relationship is one of employment ; but where control is reserved only as to the result sought, the relationship is that of an inde- pendent contractor . The resolution of this question depends . on the facts of each case, and no one factor is determinative . Lindsay Newspapers, Inc., 130 NLRB 680. However, the Board has recognized that certain factors may have more significance than others , such as (1) the opportunity of the individual for profit or loss based on his own efforts, (2) his power to determine his own wages, those of his employees, and other terms and conditions of operation, (3) his method of compensation, and (4) the lack or extent of detailed control by the alleged employer over the individual's method of operation. Smith's Van & Transport Company, Inc., et al., 126 NLRB 1059, 1060 (footnote 2, citing U.S. v. Silk, etc., 331 U.S. 704, 716, 719 ); La Prensa, Inc., 131 NLRB 527. Applying these principles, the record contains various factors which support the conclusion that Todaro was an independent contractor: (a) Prior to its arrangement with Todaro , Terminal had always had the major, nighttime cleaning of its shops performed by independent contractors ; there is no proof that it had ever directly hired or used its own employees for that purpose 15 This establishes a significant pattern. ('b) Terminal adhered to this pattern in dealing with Todaro.. Although he was at all times a supervisory employee of Terminal in the operation of barbershops, and had had experience in negotiating cleaning contracts with "George" and Goddard for his employer, Terminal did not initiate the cleaning arrangement with him. After four previous contractors had proven unsatisfactory , Todaro brought it up by pro- posing to Brown that he be given a chance to do the work . This was consistent with Todaro's past endeavors as a small businessman or enterpreneur. After long service with Terminal, he left it in 1953 to try his hand at various business ventures, such as selling special eyeglasses to theaters for audiences viewing three -dimensional films, running concessions on a steamship for 3 years, and managing another barbershop for a time. In the past he had also run a family corporation engaged in distribution of perfumes. As manager of two Terminal shops, he knew the type and scope of cleaning work required in them , the standards of cleanliness demanded by Terminal, and the deficiencies of prior contractors in cleaning both shops. During Goddard's 16 "George," the cleaner at Tishman for a month , comes closest to an employee status, in that he did the work alone , did not have any work force of employees . and there is no proof to show how or where he secured his working equipment However, he was not covered by any of Terminal 's insurance policies, and he worked without supervision from Terminal at night, after he had been told at the outset the nature and scope of the work to be done. There is no evidence of Terminal's exercise of any control over his method of operation , but only over the end result of his labors. The concessionaires who handled incidental daytime cleaning are independent con- tractors who pay rent for their, concessions at a percentage of their gross intake, which is handled for them by the shop manager or cashier . They are paid separate compensa- tion weekly for cleaning jobs out of the shop petty cash fund Most of them work under oral arrangements, but a few of long standing, with several employees working for them, have written contracts with Terminal Those with several employees carry insurance covering them. Concessionaires buy their own equipment , and hire their own employees. 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract, he also learned about the financial and other problems involved in contract cleaning when he examined Goddard's books in considering the latter's proposal that they become partners. It is a reasonable inference that his enterprising nature, past business background and personal knowledge of the cleaning work and its problems combined to induce him to try his hand at that work; hence, his proposal and negotia- tion of the deal with Terminal. In reaching agreement, the parties apparently dealt at arm's-length, for Brown did not at once accept Todaro's proposal, but stipu- lated that the work must be done properly and that the "price be right"; it was only after they had haggled over price, and Todaro had reduced his figures to Goddard's prices, that Brown recommended, and Bauman approved, the deal. The final agree- ment was oral and informal, on a month-to-month basis, like the last contracts with Anchor, National, "George," and Goddard. (c) Todaro's oral arrangement was silent about the identity or number of em- ployees he would use. In performing his contract he hired and supervised his own employees, without suggestion or control from Terminal. Up to the hearing, he had hired and employed for various periods eight persons: none of them had ever been employees of Terminal; four of them have been concessionaires , or employees of concessionaires, in the Tishman and Time and Life shops, whom Todaro hired when they applied for the nightwork in order to make extra money; the other four came from outside sources. At the time of the hearing Todaro had two employees: Robert Benjamin, concessionaire at the Time and Life shop, who cleans only that shop, and Fred Galloway, who handles the other three shops. Todaro usually gives his em- ployees suggestions about their work when they come into the shop about 6 p.m., while he is finishing up his work as manager; otherwise, they work alone and without specific supervision during the night. No Terminal officer observes or supervises them in their work; at most, the shop managers check the results of their work when they inspect the shop each morning, to see that it is ready for business; Brown notes the condition of each shop during his weekly visit to inspect its general operation; Bauman usually does the same whenever he visits a shop less frequently for business reasons. Any unclean conditions noted by these officials are reported to the contractor for attention, either directly by Brown or through the manager. These inspections of the results of cleaning occur during the day, either before or during operating hours, never at night.18 In this respect, Terminal exercised no more supervision over Todaro, Moore, and the Wyler Salon cleaner than it had over Anchor, National, "George," or Goddard.17 (d) Todaro pays his employees by checks drawn on his personal bank account. (e) Todaro keeps separate payroll and other records for his employees, which were set up and are maintained by his personal accountant at his expense. He has pro- cured the usual withholding statements for Federal income tax purposes from em- ployees, has paid social security taxes for them, and made the requisite periodic reports and accompanying payments to the Federal Government under the Federal Insurance Contributions Act, and to New York State under the New York Unemploy= ment Insurance laws. (f) Todaro procured at his own expense general liability and workmen's com- pensation insurance policies covering his cleaning operations as a contractor at the insistence of Brown and on advice of his own accountant.18 . The Terminal master 1s Once or twice a year, Brown conducts a barbers' training school at one of the shops during evening hours, but he has never taken these occasions to supervise the work of cleaners who might happen to be working there at the time. IT It -is true, as Respondent argues, that the cleaning work is simple, so that the cleaners require no actual supervision of their labors during the night, and the only feasible supervision is the daily examination of their work by shop managers or other Terminal officials Respondent contends that since this examination is done by managers, including Todaro, as part of their managerial duties, the only control of which, the cleaners are susceptible is in fact exercised directly by Terminal But this argument ignores the fact that the daily examination covered only the extent of the cleanhneso, or the end result of the cleaners' work ; if it is found below standard, the complaints are sent to Todaro, as the contractor, for attention, not to the cleaners involved, and he alone talks to his employees about it. There is no proof that '''"urinal officials talked to the cleaners about it, or ever attempted or even suggested discipline for them, or methods of correction of their work methods ; the only control Terminal exercised was over Todaro, as the contractor, through partial termination of his contract \_` 18 His general liability policy covers hazards in "building-operations by coatractors [not owners , lessees, or managing agents]" and provides that it "does not apply except in connection with the conduct of a business of which the named insured is the sole owner." His workmen's compensation policy classifies the operation covered as "building service contractor " In view of these provisions, there is no real significance in a state- BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 917 policies have never covered any of his cleaning employees, but only the four or five classifications of Terminal employees who work in the barbershops and beauty salons during the day. (g) Todaro buys his own cleaning materials and equipment for his employees. (h) Todaro is paid a flat monthly price for cleaning each shop, which was negoti- ated with Terminal at the outset for at least three shops . The payments are made on separate bills for each shop submitted by him monthly. This is a normal indicium of an independent contract relationship, and is all the more significant because it con- trasts with, and has no apparent relationship to, Todaro 's compensation as a barber and working manager which is paid weekly and varies in accordance with the volume of shop business and the amount thereof which Todaro handles personally. (i) During performance of the contract, Todaro and Terminal dealt at arm's- length . Terminal's complete lack of contact with his employees has already been noted. On one occasion Brown refused to rent or buy a waxing machine for Todaro, leaving him to his own resources in that respect. After stating its initial require- ment that Todaro procure insurance covering his cleaning operation and employees, Terminal did not follow up to see that he got proper and prompt coverage , nor did it criticize or penalize him in any way because he did not procure "binder" coverage until September 1, or because his policies were effective only from October 1. After several warnings from Brown that the 120 Broadway shop was not being cleaned properly, Terminal did not observe his employees to discover the reason , or suggest or demand their discharge or other discipline , or particular corrections in his cleaning methods; it merely terminated his contract there for poor work. It took the same action at the Wyler Salon when his performance failed there . However, it con- tinued his contract at other shops where his performance was satisfactory. Aside from the partial termination of his contract and proportionate loss of contract price, his deficiencies at two shops had no effect on his continuance or compensation as a service and supervisory employee in the Time and Life shop. This circumstance alone negates the argument of Respondent that Terminal in fact exercised complete control over Todaro in all his relationships with Terminal , through its power of terminating his cleaning contract at will , and renders Butler Brothers v. N.L.R.B., 134 F. 2d 981 (C.A. 7), cited by Respondent, inapposite on the facts. Certain factors are consistent with the claim that Todaro was operating the clean- ing business as an agent or employee of Terminal: (1) He operated the business from, the Time and Life shop, where he received business mail, often used Terminal shop funds to cash checks of cleaning employees, used Terminal employment application forms when interviewing and hiring these employees, and procured business insurance through the Terminal insurance broker. That Terminal allowed him to use the shop as his office is not of major significance, however, because this clearly benefited Terminal as much as Todaro, in that Terminal officials and managers could reach him there readily to register complaints about the cleaning. There is, no proof that handling of the cleaning business there during business hours interfered at all with his duties as barber or working manager.1° As he used Terminal employment application blanks without knowledge of Terminal officers, this was obviously a "liberty" he took with Terminal property, inferably for the sake of convenience and to save some expense . Since he used them regu- larly to record data about applicants for barber and manicurist positions, it does not seem unusual that he used a few of the forms for his cleaning employees. In any event, he used so few that their cost to Terminal must have been trivial. Nor was his use of the Terminal insurance broker of great significance: When he learned ment in a binder sent Todaro about September 6, 1960, that "We understand that the employees which you engage will be those of Terminal ," particularly since the record shows that Todaro never used any Terminal employees for the cleaning, and Todaro explained that after he requested coverage from the insurance broker, an insurance engineer interviewed him to learn the type of work and locations involved, and Todaro told him he hoped to use bootblacks who were employees of concessionaires in the various ;hops, and in fact had a few already working for him. It is inferable from this that the engineer, and probably the broker, assumed erroneously that bootblacks were Terminal employees 19 See La Pren8a, Inc., 131 NLRB 527, where a photographer was considered an inde- pendent contractor, although his agreement with a newspaper specifically contemplated his use of the newspaper's property in connection with his work. Nor is it surprising that, as a small businessman with a gross volume of business of only about $11,000 annually at its peak and reduced to $6,000 at the time of the hearing, Todaro would try to economize by avoiding the rental of a separate office with all its attendant present day expenses 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he had to carry his own insurance, he asked a Terminal official to suggest a broker, and was referred to the Terminal broker. His resort to that individual was also a convenient and natural choice, as we can infer that he felt a broker used by his employer would be reliable. Hence, this is far from substantial proof, that Terminal was supervising his method of operation. 20 His use of Terminal funds to cash his employees' checks was another "liberty" he took with Terminal property; it was un- known personally to Bauman or Brown and violated a Terminal rule and policy against use of petty cash for cashing personal checks. -However, shop managers honored this rule more in the breach than the observance, by cashing checks for known and trusted customers, without apparent criticism from Terminal. I am satisfied that Todaro "stretched" the breach a bit more. to accommodate his em- ployees, but only when they came for -their checks after banking hours; otherwise they cash their checks at the bank. When he cashed them, however, Terminal did not lose money thereby, for he substituted his personal check, endorsed by the payee, for the-cash, and deposited it with shop receipts in the Terminal account in the same bank where he has his account. Thus, he pledged his personal credit in lieu of cash in part of Terminal's assets; there is no proof that his checks ever "bounced" for lack of funds. At most the above practices indicate that Terminal did not keep close watch on Todaro's method of running his cleaning business, and was perhaps lax in checking on him when he took liberties with its cash and minor property items. While this might be the leniency which an employer would exercise in the case of a trusted employee, it is more significant, in contrast, that when he tried to persuade Terminal to buy or rent cleaning equipment for him, it refused to go beyond its contract. terms. Thus, he was left to his own devices in the method of running the cleaning business. Terminal's leniency also highlights the contrasting fact that it was prompt to criticize him whenever he fell down on the cleaning of a shop, and even went so" far as to terminate his contract at two shops when his performance there continued' unsatisfactory-but without affecting, however, his employee status as barber and working manager. (2) Todaro's negotiation of the cleaning contracts with "George" and Goddard, and his daily inspection of his own shop for cleanliness, were part of his duty as shop manager, and are some indication that in one sense his control and supervision of the cleaning employees overlapped with his managerial duties, at least in his own shop. However, as his contract operations involved substantial labor and material costs for work in four or more shops, which could not possibly have been contem- plated as coming within the $25 a week he received as working manager of one shop, I consider the overlap as to one shop of no significance in establishing him as a mere employee in'respect of the cleaning work. Nor was his incidental duty of negotiating prior contracts of any significance, for that was apparently a convenient practice of Terminal: Todaro was assigned the additional duty of negotiating the cleaning contract for his shop, just as the manager of 120 Broadway made the con- tract with Moore, and the part owner of the Wyler Salon made a contract there with another individual, after Todaro lost both locations. (3) The record shows that, after the Union began picketing, Todaro and Bauman conferred and agreed on a course of procedure vis-a-vis the Union which depended upon the effect of the picketing on the Terminal business; i.e., if the picketing affected business at the shops picketed, or in the buildings in which they were located, Todaro's employees would have to join the Union, and he would have to sign a contract with it, in which event his contract price would be adjusted to take care of any additional cost to him entailed thereby. This was agreement on a common labor policy, which is usually a significant indication of an employer-employee relationship, or of a "single employer" status where two or more separate employers are involved. This was an ad hoc policy, which arose solely from the picketing. When Todaro negotiated his contract with Terminal in June, there was no discussion between him and Brown or Bauman about the Union or the question of his employees joining the Union. They did not discuss that topic until shortly after the picketing started, when they made the agreement noted above. Although they concurred in it, I think it was largely dictated by Bauman, despite his testimony to the contrary. Todaro was not hostile to the Union or averse to signing a contract with it, if that became necessary. He was a unionman of long standing. As will appear below, he sym- pathized with Mumm when the latter first complained about loss of union jobs in- volved in the termination of the National contract, and after discussions with Mumm, Todaro even tried on his own initiative to find another union contractor as a sub- stitute for National. In June he explored the costs of a union contract while con- 20 There is no proof that Terminal directed or suggested that he keep separate books and records for cleaning employees, or hire his own accountant. BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 919 sidering Goddard's invitation to buy into the latter' s cleaning business . When the picketing started, Todaro was worried about it, and in an early conference in November told Bauman that his brother had advised him to sign up with the Union, that he felt the picketing might affect the Terminal business and his contract ad- versely, so that his employees might have to join the Union, and he might have to sign a union contract and pay union rates and other benefits, and the added cost would have to be reflected in his contract price to Terminal. Bauman admitted this might be necessary, and said it could be worked out. However, he outlined and controlled the strategy thereafter, for he told Todaro not to worry, but to "stand by," to "wait and see" what the Barber's Union might do about Todaro's cleaning contract and the employees of National (who still cleaned other Terminal shops) would do about the picketing, and how it would affect the shops, and that he (Bauman) would have his attorney take care of it, and would advise Todaro if the situation became serious. Bauman testified that he recognized two possibilities: if the picketing had an adverse effect on Terminal's business, he could get the pickets removed only if Todaro's workers joined the Union, or "we get a union contractor to perform these duties, as we had before"; however, he hoped the decision would not have to be made, that the situation could "continue as is, and we are not making changes until we were forced to." When it appeared that the picketing was not affecting the shops' business, Bauman advised Todaro that Terminal was satisfied to "let matters stand as they are," to which Todaro agreed, and neither party, did any- thing about changing the basic contract terms nor did Todaro take action toward signing a contract with the Union covering the cleaners. Although Todaro testified that he was still willing to sign up with the Union, but had not done so because he did not have enough cleaning work to make it feasible, I am satisfied that the "feasibility" of that step was controlled largely by Terminal's decision whether it would be willing to adjust Todaro's contract to take care of the added expense of operating under a union contract. It is also noteworthy that, in formulating the joint labor policy at the outset, Bauman relied upon the advice of Attorney Charles Moos, assistant secretary of Terminal and Charmode and legal adviser to the Terminal enterprise on labor relations. Shortly after the picketing started, Bauman brought Moos to a conference with Todaro, where Moos learned of Todaro's previ- ous contacts with the Union, advised that he considered the picketing a secondary boycott, and said he would take care of it by filing a charge with the Board. Todaro concurred in this. Bauman then told Todaro to leave the matter in Moos' hands. Later, Todaro hired Moos to represent him before the New York State Labor Board when the Union filed a representation petition with that agency; Moos also repre- sented Terminal's "interests" in that proceeding. Insofar as the joint labor policy took into account the possible financial impact upon the parties of the picketing and, in, turn, the contingency that Todaro might have to sign a union contract, it affords some support for Respondent's contention that the deal with Todaro was merely a subterfuge which grew out of Terminal's desire to avoid further dealing with union contractors. It is true that, ever since its cancellations of National and Anchor due to high prices for poor work, Terminal has tried to get the shops' cleaning done at the lowest possible price. But this legitimate economic motive has governed Terminal's conduct throughout, even when it negotiated with Contractor Moore after partial termination of Todaro's contract. We can infer from its experiences with Goddard, Todaro, and Moore that Terminal has concluded it can get the work done cheaper with nonunion contractors, but since there is no serious contention that Goddard and Moore were other than independent contractors, I cannot believe that Terminal deliberately set up Todaro in the cleaning business, with the mere facade of an entrepreneur, with the discriminatory motive of avoiding any dealing with the Union or use of union labor, particularly where it has throughout had apparent amicable relations with another labor organization representing most of its employees, and there is no proof at all that it has been gener- ally or specifically hostile to unions. I therefore reject the subterfuge argument as without support in fact. There is no question that in this case Todaro has been wearing "two hats," one as an employee of Terminal in the usual sense, the other as the contract cleaner. This fact alone has caused me to set forth a detailed and careful analysis of all the pertinent aspects of the dealings and relations between the two. However, after careful appraisal of all pertinent facts and circumstances, pro and con, I am con- vinced that the factors indicating an independent contractor status outweigh, both in number and relative significance, those which would support the view that Todaro was still a Terminal employee in handling the cleaning work. I conclude and find that in respect of that operation Todaro was and is an independent contractor, not an employee of Terminal, and that his contractual arrangement with Terminal made 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him an "employer," and a "person" with whom Terminal was " doing business," within the meaning of Sections 2(l) and 8(b) (4) of the Act 21 2. The Union's objective In March and April 1960, shortly after Terminal canceled the National contract at the Tishman shop, Business Agent Mumm complained to Bauman and Brown that the cancellation put union cleaners out of work, and suggested that Terminal try another union contractor from a list kept by the Union. Bauman told Mumm why National had been terminated but, aside from discussions with National when it tried to persuade Terminal to reinstate its contract, he made no attempt to engage another union cleaner; instead Terminal contracted with "George" and Sam Goddard in turn to handle Tishman and other shops as found above When Mumm first visited the Tishman shop in March to find out who was cleaning it, Todaro told him a nonunion contractor was doing it, and that in his opinion National had been terminated because the business at that shop was falling off. When Mumm com- plained about the cancellation, Todaro replied that he would like to see union men doing the work again, but he could do nothing about it as he was only the manager; however, he would discuss it with Brown. When Mumm suggested to Todaro that Terminal should try another union contractor, Todaro was receptive and on his own initiative contacted other union contractors on the list furnished to him by Mumm, but found their prices were so high that he did not attempt to talk to Bauman or Brown about it. When Mumm again contacted Todaro in April and May to find out if Terminal had decided on a union contractor, Todaro told him the results of his use of the Union's list. Goddard was cleaning the Tishman and Time and Life shops at the time, and in one of their talks in this period Todaro told Mumm that he thought he had a solution, as there was a possibility that he might "back" Goddard in his cleaning business , but that if he did, he wanted Goddard to have a contract with the Union 22 He said he had examined Goddard's books and felt that God- dard was not in "very good shape" then, that he (Todaro) did not have much to invest, so he wanted to find out from Mumm what it would cost Goddard and him to operate under a contract with the Union. Mumm told him generally what finan- cial obligations a contract involved, in payment of union wages, periodic payments into workers' welfare and pension funds, and other benefits. He explained that another business agent, Joseph J. Baumann, in charge of contract matters, could give Todaro the exact figures and procedure for securing a union contract, which was a standard form for all contractors. Todaro got the impression from Mumm's re- marks that a union contract would involve an outlay of about $15,000, so he asked Mumm if he could have his cleaners join the Union, and he could sign the regular union contract, but pay his workers only the union wage (without making the other contract payments) for a while until the business "got on its feet." Mumm rejected that idea, saying there were no "halves," that Todaro would have to "go all the way or not at all." Todaro replied that Mumm was not being very helpful, and that he (Todaro) would have to see Baumann personally. In August, the Union sent Terminal the letter cited above, threatening to picket the shops where union members had lost jobs as a result of termination of the Anchor contract. In September or early October, while Todaro had the cleaning contract, Mumm complained to Todaro about the amount of work he had taken away from union cleaners. Todaro told him that he (Todaro) was a good "union" man, having been in the Barbers' Union many years, that he wanted no trouble with that union or Respondent Union, and was still interested in getting a contract with Respondent, and asked Mumm to arrange a conference for him with a union representative to talk about it. Mumm referred him to Baumann. Shortly after, Todaro conferred with Baumann who explained the procedure for signing up with the Union and gave him a sample "independent contract" form. Todaro has never signed a contract with the Union, but has never specifically refused to do so. He explained credibly on cross-examination that he conferred with Baumann to find out what conditions he had to meet in signing up with the Union, so that he could discuss them with his accountant to determine if he could make a contract rate with Terminal which would permit him to operate z See cases cited above, and also Nelson-Ricks Creamery Company, 89 NLRB 204, 206; Duane's Miami Corporation, 119 NLRB 1331, 1334, 1335. For the reasons cited above, I also reject Respondent's argument that Terminal and Todaro were in fact or law ioint employers of the cleaning personnel In April or May, Goddard offered Todaro a half-interest in his business for $2,500. which Todaro turned down after examining Goddard's books and equipment In their discussions, they considered the financial impact of signing a contract with the Union, as Todaro, being a unionman, wanted to avoid any trouble with that organization BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 921' under a union contract and still run the business profitably; if the conditions would not permit a profit, he would not sign up with the Union, but if he could get a price increase from Terminal to meet those conditions, he intended to sign a union contract. Since the picketing in November, Todaro and the Union have had no further dis- cussions about a contract. It is clear from the above facts that after cancellation of the National and Anchor contracts, the Union tried for about 7 months to persuade Terminal to use union contractors and union members to clean the five shops in question. At the same time, however, it made efforts to organize the nonunion cleaners who followed Na- tional and Anchor. As early as April 1960, Mumm in the course of his investigation of the contract cancellations,23 learned from Todaro that Goddard, a nonunion con- tractor, was cleaning the Tishman and at least one other shop, and in June a union agent signed up one of Goddard's employees at the Estelle Wyler Salon. From Sep- tember 1960, through January 1961, the Union solicited at least eight cleaning per- sonnel, and signed up four or five of those it found working in the "cancelled" shops. On the basis of what it learned from them and Todaro himself about the circum- stances of their hiring and who supervised their work, the Union filed a petition- on January 6, 1961, with the New York State Labor Relations Board seeking an investi- gation and certification of bargaining representative under New York State law. The petition named Todaro as the employer of about five employees in the " cleaning and maintenance" business, listed the types of employees as "cleaning women, porters and waxers," and the locations of employment as the addresses of the Tishman, Grand Central, and Empire State shops 24 In February 1961, the Union sought a formal hearing in the State board case, but after the close of the hearings herein was allowed by that agency to withdraw its petitions without prejudice 25 I find from these facts that both before, during, and since the-November picketing the Union has carried on the usual type of campaign to organize the cleaning employees and to be officially recognized as their bargaining representative. I do not consider the Union's investigation of the cleaners' status vis-a-vis Todaro and the action it took in both representation proceedings on the basis thereof as conclusive evidence, or even an admission against interest, to show ,that Todaro was and now is the employer, since there is no proof that the Union had access to all the facts and records adduced herein which have formed the basis of my conclusion as to his employer status. However, the Union's activities in this respect clearly show that it was at all times taking a two-pronged approach designed to secure the cleaning work for its members: While trying to persuade Terminal to use union contractors, it was also trying to organize the nonunion workers who had taken the place of union members employed by the terminated union contractors. Both lines of activity had a single overall purpose: the use of members of the Union to clean Terminal shops. However, I am satisfied and find that the Union's main line of procedure toward this objective was to cause Terminal to use approved union contractors from its existing list; the organization of Todaro's cleaning em- ployees was only •a secondary, auxiliary line of attack. This is clear from the 23 His duties involve handling of situations where union contractors are changed on a job, where a union , contractor is replaced by a nonunion cleaner, or by employees of the user of the cleaning services, and soliciting nonunion workers in the latter situations to join the Union. 24 Although Mumm testified that some of the, cleaning personnel he interviewed could not say who their employer was, tie admitted that most of them said they had been hired by Todaro, that Todaro was their "boss" in the cleaning, and that the Union named Todaro as the employer in the State proceeding because Todaro had said he was doing the cleaning "on his own behalf," Terminal had written the Union in September that the cleaning would be done by an independent contractor, and "everybody kept insisting that Joe Todaro-everybody claimed Joe If Joe is the man, then we will fire Joe Todaro " 25 On December 2, 1960, the Union also filed a representation petition with the Second Regional Office of the National Labor Relations Board in Case No 2-RC-11136, in which it named Terminal and/or Todaio as the employer On later application, the Regional Director for the Second Region on December 16, 1960, permitted the Union to withdraw its petition without prejudice Except as noted above, I make no findings regarding the circumstances of Respondent's action in both State and Federal proceedings as set forth in its letter of March 27, 1961. to the Trial Examiner I hereby admit in evidence, for the limited purpose indicated by the above facts„ copy of letter. dated March 24, 1961, from Respondent's counsel to, the New York State Labor Board (as Respondent's Exhibit No 7), letter of Respondent's counsel to Trial Examiner dated March 27, 1961, with registered mail envelope and three enclosures (as Respondent's Exhibit No 9), and letter of General Counsel to the Trial Examiner,. dated March 30, 1961, (as General Counsel's Exhibit No. 61) 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD following circumstances: (1) the Union's continual complaints to Terminal and Todaro about the loss of union jobs entailed by termination of National and Anchor; (2) the Union's threat of August 11, to picket three locations covered by Todaro's contract unless union members were given work there (obviously by reinstatement of National or Anchor or engaging another union cleaner); (3) Mumm' s admission that in September he was trying to get the shops cleaned by another cleaner; (4) credible testimony of Todaro which indicates that, when he evinced a sincere interest on two occasions in signing up with the Union, Mumm gave him only general in- formation about the procedure and costs involved, and did not exert himself to assist Todaro to procure a union contract, which contrasts with his active efforts to induce Todaro to seek out other union contractors; (5) the picket signs advertised that Terminal (not Todaro and his cleaning employees) had displaced union employees in the cleaning work, and picketing occurred only at shops where such "displace- ment" occurred; (6) the Union did not picket the Time and Life shop, where Todaro had his office and no union employees had done the cleaning prior to the time Todaro got the contract; and (7) the picketing did not occur when the cleaning employees were engaged in their normal work 26 I conclude and find on all the above facts that, insofar as the Union was trying to organize employees of Todaro, and sought to be certified as their bargaining agent, Todaro was the primary employer within the meaning of Board authorities con- struing Section 8(b)(4) of the Act, and that the main object of the Union's picketing of the Tishman and 120 Broadway shops was to compel Terminal, a secondary employer and a person engaged in commerce, to use union contractors for cleaning of those shops, which would necessarily involve discontinuance of the cleaning contracts of Todaro and any other nonunion contractors presently doing that work, hence would compel Terminal to "cease doing business" with those "persons" within the proscription of Section 8(b) (4) (ii) (B) of the Act. As the picketing occurred at times when unionized employees of Terminal worked at the shops and perforce had to cross the picket lines, the picketing was calculated to induce and encourage employees of Terminal, the neutral employer, to engage in a strike or refusal to perform services within the meaning of clause (i) of Section 8(b)(4) of the Act. Perfection Mattress & Spring Company, 129 NLRB 1014.27 IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. On the basis of the foregoing facts, and upon the entire record herein, I hereby make the following: CONCLUSIONS OF LAW 1. Terminal is an employer and "person engaged in commerce" within the mean- ing of Sections 2(2), (6), and (7) and 8(b)(4) of the Act, and Joseph Todaro is an employer and independent contractor, and "another person" within the mean- ing of Section 8(b) (4) (ii) (B) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging employees of Terminal, a neutral employer, to engage in strikes or concerted refusals in the course of their employment to work or perform services for their employer, and .by threatening, coercing, and restraining Terminal, all with an object of forcing or requiring Terminal to cease doing business with Joseph Todaro or any other person, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. 4. The unfair labor practices of Respondent set forth above, occurring in con- nection with the operations of Terminal found above, have an intimate and sub- stantial 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 within the meaning of Section 2(6) and (7) of the Act. For these reasons, I also reject Respondent's argument that its primary purpose was to "insure" that Todaro would sign up with the Union and not "hedge on entering into this contract" but accept the entire standard contract offered by the Union The same considerations rule out a finding of legitimate "common-situs" picketing under the tests set forth in Moore Drydock Company, 92 NLRB 547, 549 a'' The fact that the picketing was not successful in inducing a work stoppage does not detract from the fact that the necessary effect of the picketing activity was to induce and encourage employees to engage in such stoppage, in violation of the Act. See Perfection Mattress A Spring Company, 125 NLRB 520, 524. BUILDING SERVICE EMPLOYEES UNION, LOCAL 32-J 923 RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and on the entire record in the case, I recommend that Building Service Employees Inter- national Union, Local 32-J, AFL-CIO, its officers, agents, representatives, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) -Engaging in, or inducing or encouraging individuals employed by Terminal Barber Shops, Inc., or any of its subsidiaries, or by any other employer or person engaged in commerce or in any industry affecting commerce, to engage in, a strike or a refusal in the course of their employment to work or perform any services. (b) Threatening, coercing, or restraining Terminal Barber Shops, Inc., or any of its subsidiaries, or any other employer or person engaged in commerce or in an industry affecting commerce; where, in either case, an object thereof is to force or require Terminal Barber Shops, Inc., or any of its subsidiaries, or any other employer or person, to cease doing business with Joseph R. Todaro or any other person. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Post in Respondent's business offices and meeting halls, copies of the notice attached hereto marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respond- ent's authorized representative, 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 are customarily, posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Second Region signed copies of the aforementioned notice for posting by Terminal Barber Shops, Inc., its subsidiaries, and Joseph R. Todaro, they being willing, in places where they customarily post notices to their respective employees. Copies of said notice, to be furnished by said Regional Director, shall, after being signed by Respondent as indicated above, be forthwith returned to said Regional Director for disposition by him. (c) Notify the said Regional Director, in writing, within 20 days from the date of receipt of this report, what steps Respondent has taken to comply herewith. I further recommend that, unless Respondent shall within 20 days from the date of receipt of this report, notify said Regional Director, in writing, that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. APPENDIX NOTICE TO ALL MEMBERS OF BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 32-J, AFL-CIO, AND TERMINAL BARBER SHOPS , INC., AND ITS SUBSIDIARY CORPORATIONS, AND ALL THEIR EMPLOYEES, AND JOSEPH R. TODARO Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959, we hereby notify you that: WE WILL NOT engage in a strike, or induce or encourage individuals employed by Terminal Barber Shops , Inc., or any of its subsidiary corporations, or by any other employer or person engaged in commerce or in an industry affecting com- merce, to engage in a strike or a refusal in the course of their employment to work or perform any services, or threaten, coerce, or restrain Terminal Barber Shops, Inc., or any of its subsidiary corporations, or any other employer or person engaged in commerce or in an industry affecting commerce, where, in either case, an object thereof is to force or require Terminal Barber Shops, Inc., or any of its subsidiary corporations, or any other employer or person, to cease doing business with Joseph R. Todaro or any other person. BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 32-J, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.