Carpet, Linoleum and Soft Tile Local No. 1247

CARPET, LINOLEUM AND SOFT TILE LOCAL NO. 1247 951 Carpet, Linoleum and Soft Tile Local Union No. 1247 of the Brotherhood of Painters, Decorators and Paper Hangers of America, AFL-CIO [Indio Paint and Rug Center] and Eugene W. Norman. Case No. 21-CB-2451. January 18, 1966 DECISION AND ORDER On October 21, 1965, Trial Examiner Maurice M. Miller issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions 1 to the Trial Examiner's Deci- sion and a supporting brief. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case , including the exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 1 We find merit in the General Counsel's contention that the burden of proof in deter- mining whether the Employer herein is primarily engaged in the building and construe- tion .industry lies with the party seeking to avail itself of Section 8(f)'s statutory ex- ception , in this case the Respondent Union. However, based upon the entire record, we conclude that the evidence clearly indicates that Respondent has adequately borne such burden. DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE Upon a charge and amended charge duly filed and served-dated December 7 and 11, 1964, respectively-the General Counsel of the National Labor Relations Board caused a complaint and notice of hearing to be issued and served on March 24, 1965, upon Carpet, Linoleum and Soft Tile Local Union No. 1247 of the Brotherhood of Painters, Decorators, and Paper Hangers of America, AFL-CIO, designated as Respondent Union in this decision . Therein, Respondent Union was charged with unfair labor practices affecting commerce, within the meaning of Section 8 (b)(1)(A) and (2) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519). Within its answer duly filed, Respondent Union denied the complaint's jurisdictional allegations, conceded certain further factual allegations therein, but denied the commission of any unfair labor practice. Pursuant to notice , a hearing with respect to the issues was held in Los Angeles, California , on June 10, 1965, before Trial Examiner Maurice M. Miller. The General Counsel and Respondent Union were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross -examine witnesses, and to introduce evidence pertinent to the issues. Certain stipulations were proffered which reflected Respondent Union's factual concessions with respect to the com- plaint's jurisdictional allegations , together with certain other matters . When their respective testimonial presentations were complete , counsel waived oral argument, but declared their intention to file briefs. These briefs have been received and have been fully considered. 156 NLRB No. 97. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT Upon the entire testimonial record, documentary and other evidence received, and my observation of the witnesses, I make the following findings of fact: 1. JURISDICTION H. A. Mills and C. M. Mills are, and have been throughout the period with which this case is concerned, copartners doing business under the trade name and style of Indio Paint and Rug Center; the firm will be designated as the Company or Employer within this decision. The Company has its principal place of business at Indio, California; there it is presently engaged in and has been engaged in, the sale, at retail and wholesale, and installation of hard and soft flooring and formica. During the 1964 calendar year-which period may be deemed representative-the Company had more than $596,000 in gross revenue. Within the same period it purchased, and caused to be delivered and transferred to its place of business, floor coverings and other goods and materials valued in excess of $24,000, which goods and materials were received by it from William Volker Company and J. N. Ceazan Company, both firms located in Los Angeles, California; these designated firms, so the record shows, had received the goods and materials in question directly from an out-of- State source, specifically Armstrong Cork Company's Lancaster, Pennsylvania, plant. Upon the complaint's jurisdictional allegations, which despite Respondent Union's formal denial I find substantiated, Respondent is now, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in com- merce and business activitites which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. With due regard for those relevant jurisdic- tional standards which the Board presently applies (Carolina Supplies and Cement Co, 122 NLRB 88; Man Products, Inc., 128 NLRB 546; Harry Tancredi, 137 NLRB 743, and related cases), I find assertion of the Board's jurisdiction in this case war- ranted and necessary to effectuate statutory objectives. it. THE RESPONDENT LABOR ORGANIZATION Carpet, Linoleum and Soft Tile Local Union No. 1247 of the Brotherhood of Painters, Decorators and Paper Hangers of America, AFL-CIO, designated as Respondent Union within this decision, is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits Company employees to membership. III. THE UNFAIR LABOR PRACTICE CHARGED A. Facts 1. Background Since at least 1958, Respondent Union and the Company have been privy to successive collective-bargaining contracts; these contracts have governed the hire, job tenure, and terms and conditions of employment for the Company's workers. Most recently-since August 1, 1964, specifically-the Company and Respondent Union have maintained and enforced a collective-bargaining contract which, though separately negotiated, represents a counterpart of Respondent Union's current Master Labor Agreement with four trade associations within the Southern California floor covering industry. (This contract, pursuant to its terms, covers work done within five designated Southern California counties, and certain limited portions of two or more contiguous counties.) Within the geographical area which Respondent Union's master contract covers, it purports to govern "all work within the [Union's] work jurisdiction" subject to such changes, however, as may occur from time to time. Therein, Respondent Union is contractually recognized as bargaining representative for "all workmen, including maintenance employees [,] who are required to use any of the recognized tools of the trade" which the contract covers; i e. the floor covering industry. With respect to such workmen, Respondent Union's master contract contains a union-security clause which reads as follows: Article III, Section 1. It is agreed that all workmen covered hereby shall be or become on the eighth (8th) day after employment, and remain continuously, members in good standing of the Union signatory hereto and on whose behalf this Agreement is executed as a condition of employment. CARPET, LINOLEUM AND SOFT TILE LOCAL NO. 1247 953 Since Respondent Union's contractual privity with Indio Paint and Rug Center presently derives from that company's conceded acceptance of the union's Master Labor Agreement, or its counterpart-functioning as a so-called "non-member signa- tory employer" separately bound-the union security provision noted has been maintained and enforced with respect to Company workers; General Counsel's con- tention with respect to its current maintenance and enforcement, has not been challenged. 2. Discussion a. The issue General Counsel, substantially, contends that, through its maintenance and enforce- ment of a collective-bargaining contract which contains the union-security provision noted, Respondent Union has caused Indio Paint and Rug Center to discriminate against its employees in violation of Section 8(a)(3) of the statute; thereby, General Counsel argues, Respondent Union has engaged in, and continues to engage in, unfair practices affecting commerce, within the meaning of Section 8(b)(2) and (1) (A) of the Act, as amended. Supporting his basic position, General Counsel contends that Indio Paint and Rug Center should not be considered an employer engaged primarily in the building and construction industry. Clearly, this specification within General Counsel's complaint is calculated to forestall and counter Respondent Union's presumptive contention, by way of defense, that its contractual arrangement with the Company should-pursuant to Section 8(f) of the statute-be considered privileged. The section in question provides, in relevant part, as follows: It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) because ... (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, .. . And Respondent Union, herein, does claim privilege for its contract pursuant to this statutory provision. Specifically, while denying General Counsel's charge, Respond- ent Union has traversed his complaint's allegation that Indio Paint and Rug Center "is not" an employer engaged primarily in the building and construction industry. Such a pleading is calculated, necessarily, to place the burden on General Counsel, with respect to his contention that Section 8(f) cannot properly be relied upon to save Respondent Union's contractual union-security provision from statutory proscription. With matters in this posture, two narrowly defined questions would seem to be pre- sented for determination: (1) Should the Company's business, particularly that por- tion which involves the sale and installation of both "hard" and "soft" floor coverings, be considered a business within the building and construction industry? (2) If so, should Indio Paint and Rug Center be considered an employer "primarily" engaged within that industry? General Counsel's testimonial presentation and brief suggest no contention that floor coveiing installation work specific all y-regard less of the material installed-should not be considered building and construction industry work Joinder of issue has been reached, however, regarding the second question noted, since General Counsel does contend that the Company, for reasons to be seen, should not be considered "primarily" engaged within the designated industry. b The business of the Company Throughout the period with which this case is concerned. Indio Paint and Rug Center has been engaged in the sale and installation of both "hard" and "soft" floor coverings, drapes, and prefabricated formica counters. Concurrently, the Company had done a limited volume of retail "over-the-counter" selling; for the most part, such sales have been confined to paint and, presumably, some drapes, carpets, and resilient tile. With respect to so-called "hard" floor covering, the Company deals in such mate- rials as linoleum and asphalt tile; the work done by the firm within the so-called soft floor covering field chiefly involves wall-to-wall carpet installations. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While a witness, Company partner H A. Mills proffered a knowledgeable guess that 99 percent of his firm's total floor covering sales are not mktlly made pursuant to con- tracts which require the Company to install whatever materials are sold, according to Mills, no more than 1 percent of the firm's gross annual revenue has been derived, con- versely, from compensation received for installation services performed on floor covering materials which Indio Paint and Rug Center has not, itself, purveyed Previously, within this decision, reference has been made to the Company's gross revenue during the 1964 calendar year. Approximately 62 percent of the firm's gross revenue during the period in question, was derived from so-called special trade con- tract work for general contractors engaged in residential and commercial construction. Normally, such work is done pursuant to subcontract awards, made by general con- tractors, based on competitive bids received; such bids when presented routinely spe- cify contract prices calculated to cover both the cost of the materials to be furnished and labor costs for their installation, plus some profit. Approximately 31 percent of the Company's gross revenue, during the calendar year 1964, was derived from "hard" and "soft" floor covering sales to homeowners The firm's revenue, thus derived, likewise included compensation for materials furnished plus installation labor costs. ' (The Company's homeowner contracts, during the period now under considera- tion-like its construction project contracts-were calculated to cover the cost of materials and installation service on linoleum, resilient tile, wall-to-wall carpets, or some combination of these materials , plus some profit ; combination contracts, pre- sumably, normally involved linoleum or resilient tile laying for kitchens and bath- rooms, with wall-to-wall carpet installations elsewhere.) About 7 percent of the Company's 1964 gross revenue was derived from its retail "over-the-counter" sales of paint and sundries ; with respect to such sales , clearly, no portion of the sums received reflected any compensation for installation services. When requested to state what percentage of the Company's gross yearly revenue derived from general contractors and homeowners, respectively, covered sales and 'service rendered in connection with "soft " wall-to-wall carpet installations , as dis- tinguished from "hard" linoleum and resilient -tile installations , Mills could not pro- vide a meaningful reply: He could only declare that, within the Southern California area-generally, there is currently a substantial "new trend" for general contractors engaged in residential tract construction to subcontract for wall-to-wall carpets in houses built on speculation for subsequent sale. Summoned as Respondent Union's witness , Business Manager Adam confirmed this testimony. Within Respondent Union's geographical jurisdiction, he declared, finished new residential housing, now, will "normally" be sold by builders with some wall-to- wall carpeting installed. Apartment houses and commercial buildings will, most likely, have hard surface (resilient tile) floors provided for their public areas, tenants within such buildings, however, will normally be left free to make their own arrange- ments with respect to hard surface or carpet installations for rented space All of the Company's competitors within the Indio area, six or seven in number, do a substantially similar business; specifically, they regularly solicit and perform "sales and service" contracts within the floor covering field None of them, so far as the record shows, limit their contract work to installing floor covering materials provided by builders, general contractors, materialmen, or homeowners Mills, while a witness, declared, indeed, that he knew no floor covering contractors who did not sell floor covering materials When this case was heard, the Company had 15 employees: 12 of these were instal- lers During the past calendar year, the firm had, on the average, 15 installers work- ing. None of these workmen, so far as the record shows, spent any time whatever as a salesman within the Company's store; normally, I find, they worked at their trade full-time, 40 hours per week. While so engaged, the firm's installers spent practically 100 percent of their time on jobsites, except for a minimal amount of time spent "loading up" materials at their employer's premises. Some slight qualification with respect to this factual determination should be noted. Mills did testify that some three floor-covering mechanics working for his firm spent a major portion of their time in shop work, prefabricating formica countertops for sub- sequent installation at construction sites; I so find. Though the Company has, upon occasion, requested Respondent Union to dis- patch needed workmen, and has hired some apprentices pursuant to Respondent Union's contractually formulated apprenticeship program, the firm does not routinely engage workmen merely for specific jobs Of the 12 installers working for the firm when this case was heard, exclusive of one copartner's son, one had 11 years of service; 2 or 3 had been employed for 10 years. The firm's "newest" worker had a total of 11/2 years of prior service. CARPET, LINOLEUM AND SOFT TILE LOCAL NO. 1247 955 When engaged for so-called contract work, the Company dispatches available work- men from its regular crew , without distinction , whether such work is to be done for general contractors , homeowners not yet in residence, or homeowners currently resid- mg in structures which may still require floor covering work. While so engaged, whether performing work on construction projects in progress pursuant to some new homeowner's order the Company's installers frequently have been called upon to per- form services while other workmen, specifically building trades craftsmen , have been sumlarly engaged. For some 15 years since they purchased the firm, the Company's copartners have held a state contractor's license; pursuant to its terms , they are currently licensed to contract for floor covering , wallboard, and formica work Previously, within this decision , reference has been made to the Company's mainte- nance of a contractual relationship with Respondent Union since 1958; the firm has also had a contract with the Carpenters' Union for the same period . (When this case was heard , the firm employed one carpenter . Previously, there have been as many as three. During 1964, two carpenters comprised the firm's normal complement Formica counter tops, prefabricated within the Company's shop by three so-called floor covering mechanics , are installed on jobsites by the firm's carpenter or carpen- ters. ) So far as the record shows, all of the firm's installers currently hold Respond- ent Union membership, the Company's sole present carpenter holds Carpenters' Union membership . Most general contractors who subcontract with the Company for floor covering work, have been so-called union contractors , privy to labor contracts with various building and construction trades unions. When performing services pursuant to contract, on Federal or State construction projects, the Company, according to Mills' testimony has regularly been required to pay, pursuant to statute, prevailing area wage rates . So far as the record shows, these have routinely been the locally determined "union contract" rates. Normally, when engaged to provide "hard" or "soft" floor covering materials and perform contract services for construction projects, the Company has not been required to post perform- ance bonds ; while a witness, Mills testified that his firm's work has normally been considered covered by the general contractor 's bond. One further matter, possibly worthy of note because it may be considered relevant and probative with respect to the firm's recognized status under state law, should be mentioned ; twice within the past two or three years, the Company has been permitted to file mechanics' liens to procure payment for services rendered. Indio Paint and Rug Center maintains its principal place of business within a struc- ture compassing 4,000 square feet ( 50 by 80 feet ), this structure is presently divided into a store 30 feet wide by 50 feet long, (1 ,500 square feet ), with a small office included, together with separate warehouse and shop areas (25 feet wide by 50 feet long, respectively ) having a combined area of 2,500 square feet. c. Respondent Union and the floor covering industry Previously ; reference has been made to Respondent Union's master contract cover- ing five Southern California counties and portions of two additional counties. Respondent Union's geographical jurisdiction covers two more counties ; for firms within the latter counties, however, Respondent Union negotiates a second master contract, not herein relevant. Within the territory covered by Respondent Union's Master Labor Agreement pre- viously noted , some 400 floor covering firms are contractually bound thereby. Most of these belong to one of the four contractor's associations , within the floor covering field, designated as master contract signatories Others, so the record shows, may hold "associate" membership within the Associated General Contractors of America (AGC), which admits special trade contractors to such limited membership. Some, further, may be Building Contractors Association (BCA), and Home Builder's Insti- tute (BHI) members. Testimony proffered; -without contradiction, by Respondent Union's business man- ager warrants a determination that , within the field of so-called hard surface flooring (linoleum and resilient tile) very few Southern California firms contract to provide installation service exclusively . Within the so-called soft floor covering (carpet) field, however, the situation is reversed While a witness, Business Manager Adam reported credibly, that most firms therein function primarily as labor contractors ; through prac- tically every firm does "some " selling, he characterized their basic business as the contracting of installation service me,ely . (With respect to floor covering contractors, generally, Business Manager Adam testified that so-called labor contractors substan- tially dominate the field in Los Angeles and Orange Counties, respectively ; within San Bernadmo, Riverside and Ventura Counties , however, such contractors do not predominate.) 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regarding "labor" contractors within the carpetlaying field, particularly, Respond- ent Union's business manager declared, without contradiction, that workers perform their installation work just as the Company's carpetlayers do, further, some of these firms, so his testimony shows, likewise have employees of long standing Though Respondent Union frequently does dispatch men to construction sites, union dis- patchers have no way of knowing whether such workers have been requested for service on some particular job, or for long-term hire . With respect to some large projects, Business Manager Adam conceded , floor covering contractors might con- ceivably hire "extra " men for a period of service limited to the project's duration; normally, his testimony suggests , this would not be the case With respect to Respondent Union's previous contract negotiations, Business Manager Adam testified generally, without contradiction, that negotiations for the "floor covering" trade have never taken the position that firms which contract to provide both labor and materials, within their field of work , should not be considered part of the building and construction industry d The Company and the floor covering industry Previously, within this decision, Indio Paint and Rug Center has been characterized as a firm which both sells and installs floor coverings . Since it handles, thusly, both "hard" and "soft" floor covering materials, the firm's method of doing business, seemingly, conforms with a pattern which preponderates within the floorwork trade throughout its geographical community. (Reference is made to Business Manager Adams' previously noted testimony, proffered and received without contradiction, that, within Riverside County particularly, specialty trade contractors who both sell and install floor covering materials , regardless of type, from a predominant group. His testimony confirms that given by Company partner H. A. Mills, who reported that his firm's competitors do a substantially similar business , specifically with reference to their performance of sales and installation service contracts.) During the firm's 1964 calendar year, Indio Paint and Rug Center, so the parties stipulated, had $596,765.52 gross revenue . Previously, within this decision , reference has been made to various percentages of this total sum which the Company derived from "sales and installation" contracts performed for general building contractors and homeowners, respectively Most significantly for present purposes , however, counsel have further stipulated that the firm's gross labor costs totalled $170,324.66 for the calendar year. (Presumably, the figure noted represents both labor costs related to Indio Paint and Rug Center's retail store business, and labor costs related to the firm's contract work. Since counsel have provided no breakdown for the stipulated total, I so find ) Since the Company had 1964 profits of $42,000, approx- imately, its cost of goods and materials said, both at retail and pursuant to contract, plus its miscellaneous business expenses , must have totalled $384,440.88 for the year in question. With due regard for the record, and counsel's further stipulations, the firm's 1964 profit and loss position, then, may be summarized for present purposes as follows: (Gross Revenue (Rounded to Nearest Dollar)) : Contract Work (approx.) -------------------------- $554, 992 Retail Sales ( approx. )---------------------------- 41, 774 Total Gross Revenue________ ___________________ $596, 766 Less: Cost of doing business- Gross labor costs ________________________________ 170, 325 Cost of materials and overhead expenses (approx )____ 384, 441 Total costs (approx.)------------------------------------ 554, 766 Net Profit ( approx. )------------------------------------------- 42,000 Calculation shows that Indio Paint and Rug Center 's total cost of doing business, during the calendar year in question , may, therefore, be broken down into gross labor costs which constituted no more than 31 percent of the firm 's yearly cost total, while its cost of materials furnished and goods sold, lumped together with various "over- head" expenses , never specified , accounted for 69 percent of total costs. No more than 7 percent of the Company 's gross revenue , however, was derived from retail "paint and sundries" sales. We may reasonably conclude, therefore, that any labor costs related directly to retail sales were but a minor part of the firm's total labor costs. Similarly, determination would seem to be warranted that Indio Paint and Rug Center's "cost of goods sold" retail (together with whatever miscel- CARPET , LINOLEUM AND SOFT TILE LOCAL NO. 1247 957 laneous business expenses may properly have been chargeable against the firm's retail store operation ) made up but minor parts of the firm 's total yearly costs, within the two categories noted. I so find. Necessarily, then, whatever proportionate relationship or ratio the previously noted total figures may reveal, between the firm's gross labor and material costs, must have been derived , mainly, from the contract work which it did, during the year, for general building contractors and homeowners. B. Conclusions Several years ago, within a Trial Examiner's report which the Board subsequently adopted pro forma, with respect to the point, no exceptions having been filed, Section 8(f) of the Act was construed to establish three requirements , which would have to be satisfied before a 7-day union-security clause could be considered permissible. Animated Displays Company , 137 NLRB 999 , 1020-1021. These statutory require- ments were defined as follows. (1) the agreement must cover employees who are engaged in the building and construction industry, ( 2) the agreement must be with a labor organiza- tion of which building and construction employees are members, and (3) the agreement must be with an employer engaged primarily in the building and con- sti uction industry . [Emphasis supplied.] No questions have been raised, herein , with respect to (1) whether Indio Paint and Rug Center's employees are engaged , primarily or to some lesser degree , in the build- ing and construction industry , or (2) whether Respondent Union admits building and construction trades workmen to membership . By virtue of their respective contentions , General Counsel and Respondent Union have joined issue merely with respect to the third requirement noted; there seems to be consensus , therefore, that a determination whether the Company should be considered an "employer engaged primarily in the building and construction industry" will be dispositive of General Counsel 's challenge regarding the legality of Respondent Union's union -security clause. Within his brief, General Counsel has stated his position , in this connection, with sufficient preciseness to merit quotation . Specifically, by way of argument, the brief declares that: The General Counsel is not contending that the Employer is not engaged in the building and construction industry . The General Counsel does contend that the Employer is not primarily so engaged . The facts, as shown above , demon- strate that the majority of the employer's gross revenue is derived from the sale of goods, and therefore the employer is primarily engaged in the sale of mer- chandise, and the installation of said merchandise is merely incidental to the sale. [Emphasis supplied.] Despite his disclaimer of any contention that Indio Paint and Rug Center does not function with the specific industry with which we are concerned, however, due con- sideration of General Counsel 's final position does call for some definitions of the statutory "building and construction industry" concept; such a definition would seem to be needed, certainly , before any sound determination can be made as to whether the Company should be found primarily engaged within the designated industry, or retail merchandising. In his previously mentioned Animated Displays report, Trial Examiner Libbin noted, correctly , that, despite numerous references to the "building and construction industry" within the statute's legislative history, the congressional proceedings reflect no precise definition of building and construction . For present decisional purposes, therefore, we may presume , indeed, we must presume , that Congress used these terms "in the traditional sense in which [they are] customarily used in common par- lance" as well as technical industrial parlance. Animated Displays Company , supra, 1021 I so find. First, with respect to technical usage: Within the Construction Review , Volume 3, (1957 Supplement ), published jointly by the U S Department of Commerce and the U S. Department of Labor , which does not seem to have been revised since Trial Examiner Libbin noted its pertinent portion, construction work is defined , in rele- vant part, as follows: Construction covers the erection maintenance and repair (including replace- ment of integral parts ), of immobile structures and utilities , together with service facilities which become integral parts of structures and are essential to their use for any general purpose. It includes structural additions and altera- '958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions. Structures include buildings ... and all similar work which are built into or affixed to the land .... Construction covers those types of immobile equipment which, when installed, become an integeral part of the structure and are necessary to any general use of the structure. This includes such service facilities as plumbing, heating, air-conditioning and lighting equipment . In general, construction does not include the procurement of special purpose equipment designed to prepare the structure for a specific use. [Emphasis supplied.] The Standard Industrial Classification Manual (1957) published by the Bureau of the Budget classifies the building and construction industry as one type of contract construction. This major classification division, according to the manual, consists of three groups: group 15, building and construction-general contractors; group 16, construction other than building-general contractors; and group 17, construction- special trade contractors. Within its general definition of contract construction, the manual declares: The term "construction" includes new work, additions, alterations, and repairs. Three broad types of contract construction activity are covered; namely, (1) building and construction by general contractors ... (3) construction by spe- cial trade contractors .... General building contractors are primarily engaged in the construction of dwellings, office buildings, stores, farm buildings, and other projects of a similar character . . . . Special trade contractors are pri- marily engaged in specialized construction activities such as plumbing, painting, electrical work, and carpentry. General contractors in . . . the building field . usually assume responsibility for an entire construction project, but may subcontract to others those portions of the project requiring special skills or equipment. Special.trade contractors may work for general contractors under subcontracts [performing only part of the work covered by the general contract] or may work directly for the owner of the property . . . . The installation of prefabricated building equipment and materials by general contractors and spe- cial trade contractors is classified in this division . Similar installation work performed as a service incidental to sale by employees of an established manu- facturing or selling prefabricated equipment and materials is classified according to the principal activity of the establishment. [Emphasis supplied.] Within the manual's special trade contractor group, floor-work contractors are listed. Specifically, subordinate classification is provided, inter alia, for those special trade contractors primarily engaged in the installation of asphalt tile, linoleum, and mastic and resilient flooring; they are grouped with those contractors who lay, scrape, and finish hardwood floors. The Standard Industrial Classification Manual contains no subordinate classification, specifically, for contractors primarily engaged in so-called soft floor covering installation work, though it does provide a classification category for "special trade contractors primarily engaged in contract work not elsewhere classified" which conceivably would cover carpetlaying firms. General Counsel, however, has made no contention , with reference to this case, that wall-to-wall car- petlaying work, separately considered, should not be comprised within the statutory "building and construction" concept. Had any such contention been made, my present disposition would be to consider such work, particularly when performed within a newly constructed residence or commercial structure pursuant to contract, for some general building contractor, builder, or homeowner, within the industry designated. Certainly, such a determination could be justified, since wall-to-wall carpets are frequently laid directly on subfloors in lieu of hardwood, asphalt tile, linoleum, or various other resilient floor materials. Within this decision, reference has previously been made to testimony that Southern California general building contractors, particularly those concerned with residential construction, now fre- quently let subcontracts for such carpet work. With respect to common parlance, the word "build" has been defined as follows: "To form by ordering and uniting materials by gradual means into a composite whole " Construction has been defined, comparably, as follows: "The act of put- ting parts together to form a complete and integrated object." Webster's Third New International Dictionary. Both concepts have been cited as synonymous with fabrication. These definitions, further, have been judicially recognized. Within a variety of factual and legal contexts, the term "construction" has been defined in court deci- sions as "the putting together" of materials and constituent parts, in their proper place and order. Olney v. Hutt, 105 N.W.2d 515, 520, 251 Iowa 1379; Morse v. City CARPET, LINOLEUM AND SOFT TILE LOCAL NO. 1247 959 of Westport, 19 S.W. 831, 832, 110 Mo. 502; Scharf) v. Southern Illinois Construc- tion Company, 92 S.W. 126, 130, 113 Mo.App. 157; cf. Paterson N. & RR. Co. v. City of Paterson, 86 A. 68, 69, 81 N.J.Eq. 124. One court has headnoted its view, in this connection, as follows: "Construct" as used in Mechanics Lien Law, Gen Code § 8323-9, providing that the word "subcontractor" shall be construed to include any person, firm or corporation who undertakes to "construct" alter, [or] erect ... any part of the structures or improvements mentioned therein, under a contract with any per- son other than the owner, has reference to the actual combination of materials on the building site to constitute the structure, and not to the manufacture of such materials which later may be combined with others to make a building. Matzinger v. Harvard Lumber Company, 155 N.E. 131, 132, 115 Ohio St. 555. [Emphasis supplied]. By way of summary: Within these various definitions, whether technical, common, or legal, substantial consensus seems clear. Each formulation with respect to the so-called building and construction concept subsumes the provision of labor whereby materials and constituent parts may be combined on the building site to form, make or build a structure. These various factors, therefore, define the statutory "build- ing and construction industry" with which we are concerned. I so find. With these definitions, determination certainly seems warranted that Indio Paint and Rug Center's work providing labor and materials in connection with floor cover- ing installations, both for general building contractors and homeowners, beyond per- adventure of doubt, constitutes "building and construction" work. Further, since some 93 percent of the firm's 1964 gross revenue derived from such work, pursuant to contract, determination would seem to be warranted that Indio Paint and Rug Center has indeed been, throughout the period with which this case is concerned, primarily engaged in building and construction industry work. I so find. General Counsel's contention that the company should be considered primarily engaged in retail trade, merely because the largest part of its gross revenue was received as compensation for whatever materials it furnishd in connection with its contract construction work, must be rejected. Board and court decisions construing Section 8(f) with respect to the present question have, thus far, been few. Within one such decision, the Court of Appeals for the Fifth Circuit did hold that the statutory "building and construction industry" concept did not include materialmen. N.L.R.B. v. W. L, Rives Company and W-M Corporation, 328 F. 2d 464, 469 (C.A. 5). Specifically, the court declared that: We are of the opinion that Congress did not intend to include in the exemption those employers who manufacture and assemble products which are subsequently installed by others at the construction site. [Emphasis supplied.] Substantially, this determination-that "materialmen" should not be considered com- prised within the building and construction trade-comports with limitations speci- fied in the Standard Industrial Classification Manual's "contract construction" defi- nition previously noted; although, consistently with the manual's classification scheme, installation work done on prefabricated "materials" by general contractors and spe- cial trade contractors must be considered contract construction, similar installation work "performed as a service incidental to sale by employees of an establishment ... selling prefabricated . materials" would be classified, because of the differing principal activity of the business, within some "trade" division. Likewise within the sole Board decision General Counsel cites for its relevancy, Frick Company, 141 NLRB 1204, 1208, specifically, the Trial Examiner noted, with Board approval, that the respondent company could not be considered primarily engaged in the building and construction industry within Section 8 (f)'s meaning, because- . [its] major source of revenue is derived from the manufacture and sale of refrigeration equipment, and only a negligible part of its total gross income (0.95 percent in 1962) was derived from the actual installation of refrigera- tion equipment. [Emphasis supplied.] Consistently, within a Section 10(1) case which dealt, collaterally, with this prob- lem, the court found a contract, which respondent union therein had negotiated with a trade association of construction contractors, privileged under Section 8(f) upon proof that the signatory trade group's membership had been limited to gen- eral contractors and special trade contractors, particularly those primarily engaged in electrical work, within the construction industry. Ivan C. McLeod v. Local 3, 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, AFL-CIO, (Darby Electric Corp.), 57 LRRM 2052, 2058-2059 (D.C.N.Y.). The court distinguished Frick Company, supra, precisely because that company had been found "mainly a manufacturer and seller of refrigeration equipment" which derived nothing more than a negligible part of its total income from the actual installation of such equipment. These decisions, however, do not, really, support General Counsel's position that Indio Paint and Rug Center should be considered primarily engaged in some form of business other than building and construction work. Specifically, they will not support a determination that the firm should be considered "primarily engaged in the sale of merchandise" merely because most of its gross revenue from contract construction work represented compensation for so-called hard and soft floor cover- ing materials furnished in connection therewith, with a lesser percentage representing compensation for services performed in connection with their fixation to a structure. When we consider the quintessential nature of building and construction work, whether technically, commonly, or judically defined, determinations with respect to Section 8(f) questions bottomed, simplistically, upon whatever proportionate rela- tionship may be found, within any given firm's gross revenue, between the portion of such revenue received as compensation for the firm's installation service and that portion received as compensation for materials furnished, must be rejected. Deter- minations thus reached cannot, with due regard for the realities of industrial life, promote the statute's purpose. Rather, the legislative purpose, so far as it can be determined, would seem to be better served through some more broadly gauged decisional doctrine. When busi- ness enterprise devote their facilities, time, effort, and funds principally to contract construction, whether as general building contractors, heavy construction contractors, or special trade contractors-within the meaning of these terms as previously defined, they should be considered primarily engaged in "building and construction industry" work. Further, measurements of degree, with respect to their quantum of participa- tion in such work, should not be confined to determinations regarding the percent- age of their gross revenue derived from contract construction within a representative period; wherever relevant, tries of fact should consider the proportion of their physical plant and mobile equipment devoted to servicing or performing such work, the per- centage of their total personnel directly concerned with such work, the relative degree to which their personnel devote productive time to such work, as well as the pro- portion of their "total gioss income" derived therefrom. (By such tests, clearly, Indio Paint and Rug Center would certainly merit classification as "principally, chiefly or mainly" engaged within the building and construction industry.) When, however, some firm's gross revenue sources happen to provide the single persuasive touchstone with respect to Section 8(f) questions, such as those which this case presents, statutory determinations should be bottomed upon the proportion of that firm's gross revenue which regularly derives from contract construction, without regard to whether such revenue was received as compensation for providing labor merely, or both labor and materials. And, finally should a determination be required that the business enterprise subject to consideration regularly derives the major portion of its gross revenue from the performance of contracts within the building and construction field, calling for both labor and materials to, be furnished, no distiiiction should be drawn between those firms which derive the major portion of their total contract revenue from whatever labor services they furnish, and those firms whose total contract revenue "principally, chiefly or mainly" covers their com- pensation for mateiials furnished. So long as business establishments, within the category last designated, devote themselves primarily to contract construction, within the meaning of that term as previously defined, the mere circumstance that some principal percentage of their construction contract revenue regularly or normally represents their compensation for materials furnished should not require their dif- ferentiation from so-called building and construction firms, or their classification as retail tradesmen. General Counsel's contrary contention within the present case's framework, should it be found persuasive, would create some highly anomalous situations Within Southern California's floor covering industry, particularly, Respondent Union might find its master labor contract, with four trade separate groups, legal with respect to some employer members, specifically, those who provide labor services merely, but subject to proscription with respect to other firms which, like the firm with which this case is concerned, provide both labor and materials pursuant to contract. (Con- ceivably, such determinations might not be necessary; possibly, each trade associa- tion privy to Respondent Union's master labor contract could be considered the UNITED NUCLEAR CORPORATION 961 statutory "employer" with respect to which Section 8(f)'s relevancy would have to be decided. Should such a view with respect to the statute 's meaning prevail, how- ever, the practical and legal problems which would have to be solved-before any determination could be made as to whether such a composite "employer" should be considered primarily engaged in the building and construction industry , would surely be numerous and difficult. For present purposes, luckily, they need not be dis- cussed. ) With respect to other types of special trade contract work-plumbing, heat- ing, and air conditioning ; painting, paperhanging, and decorating ; electrical work; masonry, stonework, tilesetting, and plastering ; carpentry work; roofing and sheet metal work ; concrete work; structural steel and ornamental metal work; glass and glazing work ; and the installation or erection of prefabricated building equipment, similar situations might conceivably develop which could only be decided on some case-to-case basis. Congress cannot have conferred statutory privileges, which Sec- tion 8(f) provides, subject to limitations reasonably calculated to create a double standard for contractual union security clauses, inter alia, within the building and construction trade considered as a whole. CONCLUSIONS OF LAW In the light of the foregoing findings of fact, and upon the entire record in this case, I make the following conclusions of law: 1. Indio Paint and Rug Center is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Carpet, Linoleum and Soft Tile Local Union No. 1247 of the Brotherhood of Painters, Decorators and Paper Hangers of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act, as amended , which admits employees of Indio Paint and Rug Center to membership. 3. Throughout the period with which this case is concerned, Indio Paint and Rug Center has been, and is now, engaged primarily in the building and construction industry; within that industry it performs contract construction services as a special- trade contractor. 4. Respondent Union has not, through its negotiation , maintenance or effectuation of a contract with Indio Paint and Rug Center which includes a 7-day union-security clause, caused the Company designated to discriminate against its employees in vio- lation of Section 8 (a) (3) of the Act, as amended ; Respondent Union , therefore, has not engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(2) and Section 2(6) and (7) of the Act, as amended. RECOMMENDED ORDER Upon these findings of fact and conclusions of law, and upon the entire record in the case, my recommendation is that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, dismiss the present complaint in its entirety. United Nuclear Corporation and United Steelworkers of Amer- ica, AFL-CIO, and Local No. 5605, United Steelworkers of America, AFL-CIO. Case No. 28-CA-1138. January 18,1966 DECISION AND ORDER On June 22, 1965, Trial Examiner Howard Myers issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 156 NLRB No. 83.