Carpet, Linoleum and Soft Tile

1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpet, Linoleum and Soft Tile Local -Union• No. 1247, Brother- hood of Painters, Decorators & Paperhangers of America, AFL- CIO (Joseph Katran, Abraham Savin, Alegra Katran, Eva Mizrahi, d/b/a Home Decorators )` and Home Decorators. Case 21-CC-889d. June 24, 1966 .DECISION AND ORDER Upon a charge filed by Home Decorators, the General Counsel for the National Labor Relations Board, by' jthe Regional Director for Region 21, issued a complaint against Carpet, Linoleum and Soft Tile Local Union No. ,1247, Brotherhood of Painters, Decorators & Paper- hangers of America, AFL-CIO, herein ' called the Respondent, alleg- ing that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, as amended. The parties agreed that the charge, complaint and notice of hear- ing, answer, and the stipulation of, facts would constitute the entire record in the case, and they submitted this case on such record for a Trial Examiner's Decision. On March 15, 1966, Trial Examiner Wallace E. Royster issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in'the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions and a brief in sup- port thereof, and the General Counsel filed an answering brief. The Board has considered the Trial Examiner's Decision, the exceptions .,and briefs, and the entire record in this case, 'and for reasons set forth below has decided to dismiss the complaint in its entirety. The complaint alleges that by picketing Home Decorators, Respondent, induced and encouraged the employees of Anderson Transfer and General Felt Products to refuse to perform services with an object, of forcing or requiring Home Decorators to cease doing business with Bevel and Powers in violation of Section 8(b) (4(i) and (ii) (B) of the Act. As more fully set out in the Trial Examiner's Decision, the parties stipulated that Home Decorators is a partnership engaged in the business of selling carpeting, padding, and drapery. Where instal- lation is included in the sale, Home Decorators subcontracts the installation of carpeting, for the most part, to Vess Bevel and Charles. 159 NLRB No. 125. CARPET, LINOLEUM AND SOFT TILE - 1349 Powers. Neither Bevel nor Powers is a signatory, to any agreement with Respondent. Home Decorators has no employees and all its operations are conducted by two of the partners, Abraham Savin and Joseph Katran. On or about June 24, 1965, Respondent's agent, Dex- ter Hemeon, gave Abraham Savin his business card and an agree- ment form labeled "Third Party Agreement," and told Savin to have the owner sign it. Later that clay, Respondent commenced picketing and handbilling Decorators' premises. Upon Joseph Katran's inquiry into the reason for the picketing, Hemeon responded that when Katran was ready to sign the "Third Party Agreement," He.neon would pick up the signed agreement. On July 2, 1965, employees of Anderson Transfer and General Felt Products, who delivered merchandise to Home Decorators, refused to make such deliveries because of the pickets. In essence, it is Respondent's contention that, while it has admitted the factual matters set forth in the stipulation; it has not -thereby admitted that it had knowledge of these facts at the time of the picketing. Respondent thereupon contends that without knowledge of such facts as the existence or identity of any subcontractor and the fact that Home Decorators has no employees, the record cannot be said to establish that an object of its picketing was to cause Home Decorators to cease doing business with Bevel and Powers. The Trial Examiner concluded that the agreed statement of facts constituted a concession by Respondent that all of these circumstances were known to it, and the execution of the stipulation removed such matters from further controversy. The Trial Examiner therefore found that Respondent picketed Home Decorators' premises in an attempt to persuade it to sign a "Third Party Agreement" and that Respondent was aware at the time of the picketing and handbilling that Decorators used subcontractors Bevel and Powers to install car- peting and that neither Bevel nor Powers was party to any .agree- ment with Respondent. Observing tliat there was no evidence that Respondent had ever made any demands upon Bevel or Powers or that it had at any time mentioned these subcontractors to Home Decorators, the Trial Examiner nevertheless found that the object of the picketing was to force or require Home Decorators to cease doing business with Bevel or Powers or with, any other 'subcontractor unwilling to meet the Union's standards. Essentially, it was the Trial Examiner's belief that Respondent could not under the circum- stances have been attempting "to protect, the wages, and, job opportu- nities of the employees covered by the contract" asp it knew that Home Decorators-had no employees; and, therefore,' Respondent's 1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD efforts to obtain subcontracting clauses extended beyond Home Deco- rators to Bevel and Powers or any other subcontractor with whom it had a genuine dispute. We cannot accept the Trial Examiner's conclusion that personal knowledge of certain facts at a particular time, to wit, the time of the picketing, is necessarily to be attributed to an individual merely because he is later willing to concede that, if called to testify, Gen- eral Counsel's witnesses would establish that such state of facts did exist at the time of the picketing. Nor do we accept the General Counsel's position on this record that the true motive for Respond- ent's picketing is to be inferred from the language of the handbills alone. Finding as we do that the stipulated record is insufficient to show that Respondent had knowledge of the fact that Home Decorators had no employees, that Home Decorators was engaged in subcon- tracting its installation: business to Bevel and Powers, that Bevel and Powers in fact did not observe union standards, or that Respondent was engaged in any dispute with Bevel or Powers, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint in its entirety.] CHAIRMAN MOCULLOCH, dissenting : I would adopt the Trial Examiner's findings, conclusions, and recommendations. MEMBER BROWN took no part in the above Decision and Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The parties have stipulated the content of the record 1 in this matter and have submitted it for decision. At issue is whether the Respondent by picketing at the premises of Decorators has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, herein called the Act. Upon the entire record in the case and in consideration of the briefs filed, Trial Examiner Wallace E. Royster makes the following: FINDINGS OF FACT I. THE ENTITIES INVOLVED; THEIR STATUS AND RELATIONSHIP Decorators is a partnership with its principal place of business in Huntington Park, California„ where it is engaged in the business of selling carpeting , padding, 1 Consisting of a charge filed and served July 6, 1965, by Home Decorators, herein called Decorators ; a complaint and notice of hearing issued the following September 7 with proof of service ; the'answer filed by Carpet, Linoleum and Soft Tile Local Union No. 1247, Brotherhood of Painters, Decorators & Paperhangers of America , AFL-CIO, herein the Respondent, and agreed statement of facts with three appendixes. CARPET, LINOLEUM AND SOFT TILE 1351 and drapery. Approximately 50 percent of its business is retail. In the course and conduct of its business, Decorators annually purchases and receives carpeting, valued atin excess of $50,000 which comes to, it or to its suppliers directly from outside the State of'Califor'nia: 'For tlie'puipose of this proceeding only,•the par- ties stipulate that • the National Labor' Relations Board would assert jurisdiction, over the activities under its current standards. I find that Decorators is engaged in commerce or in an activity affecting com- merce within the meaning of Section 2(6) and (7) of the Act Anderson Transfer, herein called Anderson, is a common carrier which, inter alia, delivers merchandise from its vendors to Decorators at Decorators' place of business. General Felt Products, herein General, is a vendor of Decorators who, from time to time delivers its products to Decorators at Decorators' place of business. I find that Anderson and General, because of their business relations to Deco- rators, are persons engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Decorators sells carpeting either with or without installation. Decorators has no, employees and all its operations are conducted by two of the partners of the firm, Abraham Savin and Joseph Katran. Where installation is included in the sale, Decorators subcontracts the installation to carpet installers who are subcontractors and are paid on a per-square-yard basis. Decorators makes no deduction from the amount paid to the carpet installers for social security or other tax nor does it withhold any income tax payments from the moneys paid to them. Before and, during June 1965, Decorators for the most part called on Vess Bevel and Charles Powers when carpet installation work was called for. Presently, Powers performs. approximately 80 percent of all carpet installations for Decorators; the balance is handled by other self-employed carpet installers. If Powers needs a helper, he arranges for the services of a helper, whom he selects and pays. In connection with carpet installation, Powers furnishes his own truck, tools of his trade and necessary installation materials such as tacks, strips, nails, and metal trim. Deco- rators furnishes only the carpeting and the padding. Neither Revel nor Powers are- signatories to any agreement with Respondent. On or about June,24; 1965, Respondent's agent, Dexter Hemeon, came to Deco- rators' place of business and asked Abraham Savin if the owner was in. Savin stated that the owner was not in. Hemeon thereupon gave him his business card' and an agreement form labeled "Third Party Agreement." He stated that Savin should give this to the owner and have him sign it. Later that day pickets appeared and commenced parading in front of Decorators' premises with a sign reading: "Home Decorators Unfair to Carpet, Linoleum and Soft Tile Layers Local 1247." Joseph Katran thereupon telephoned the union hall at the telephone number listed on Hemeon's business card. He asked Ralph Dutter, an agent of Respondent, who answered the phone, for Hemeon, and Dutter said that Hemeon was not in. He then asked to have Hemeon call or come to Decorators Dutter asked him why he wanted to see Hemeon. Katran explained he wished to know what the picketing was all about. Dutter stated that when he was ready to sign the yellow agreement (meaning hereby the "Third Party Agreement"), Hemeon would come to pick up the- signed agreement. Concurrently with the picketing until approximately Septem- ber 1, 1965, pickets have also been distributing handbills. Picketing has taken place principally on Friday, Saturday, Sunday, and Monday of every week since the time when picketing first commenced. In his brief counsel for the Respondent argues that no evidence has been pre- sented to establish that at the time of picketing Decorators was..in fact subcontract- ing the installation work or to indicate that the Respondent was aware of the exist- ence or the identity of any subcontractor. The agreed statement of facts; however, constitutes a concession on the part of the Respondent that all of these circum- stances were known to it. Respondent's counsel, in signing the stipulation in this matter removed such questions from controversy. 1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that the Respondent picketed the premises of Decorators on and after June 24, 1965, and, along with the picketing, distributed handbills 2 there, in an attempt to persuade Decorators to sign a "Third Party Agreement." s I further find that at the time of the picketing and handbilling, the Respondent was aware of the circumstance that Decorators used subcontractors Bevel and Powell to install carpeting and that neither Bevel nor Powers was party to any agreement with the Respondent. Did the Respondent picket and handbill with an object to force or require Deco- rators to cease doing business with Bevel and Powers or either of them? Did the Respondent have a !`primary dispute" with Decorators? There is no evidence that the Respondent had ever, made any demands upon Bevel or Powers or that it at any time mentioned these subcontractors'to Decorators. The Respondent did noth- ing but picket and handbill and tell Decorators that when the "Third Party'Agiee- ment" was signed, an agent of the Respondent would come to get it Handling these points in reverse order, it seems obvious enough that the Respond- ent cannot successfully claim that its controversy with Decorators arose in context of attempting "to protect the wages and job opportunities of the employees covered by the contract." 4 Decorators had no employees and had no contract with the Respondent. In no sense was it a "primary" employer. No circumstance existed in which it could be said that the Respondent was seeking to protect "jobs fairly claimable by the bargaining unit [or] preservation of those jobs for the bargaining unit " 5 A theory that the Respondent was trying to protect wages or job opportu- nities of Decorators' employees is untenable. The effort of the Respondent to 'obtain subcontracting clauses in a contract with Decorators extended beyond Deco- rators and was directed in actuality to Bevel and Powers or to whomever might undertake to install carpeting for Decorators. The only genuine dispute existed between the 'Respondent and Decorators' subcontractors. The picketing amounted to threatening, coercing, or restraining Decorators and I find that an object of it was to force or require Decorators to cease doing business with Bevel or Powei s or with any other subcontractor unwilling to meet Respondent's standards. The picketing caused employees of Anderson and General to refuse to make deliveries to Decorators. Thus these individuals were induced and encouragd to refuse in the course of employment to perform services for their several employers to aid the Respondent in attaining the forbidden objective found above. g The handbills read : Information to the Public HOME DECORATORS NO UNION AGREEMENT NO STATE CONTRACTORS LICENSE Does Not Employ Qualified Well-Trained Union Craftsmen for the Installation of Carpet No State Approved Apprentice Program The Customer Has No Protection From Leins (sic) or Poor Installations S The provisions of this document alleged to have importance here although without con- tention that they are inherently unlawful , are: "3. ( a) If the Employer in the construc- tion industry shall subcontract floor covering work to 'a subcontractor, as defined below, such subcontracts shall be made only to such firms, persons, or businesses which are signatory to the Local 1247 Master Labor Agreement This subcontracting clause shall apply only to work being performed in the building and construction industry and shall relate only to work to be done at the site of the construction, alteration, painting or repair of a building structure, or other work. A subcontractor is defined as any person, firm or corporation who agrees under contract with the Employer or his subcontractor to perform on the job site any part or portion of the work covered by the contract, including the operation of equipment, performance of labor , and/or the furnishing and installation of materials . (b) If the Employer is not in the construction industry, he shall subcontract floor covering work to a subcontractor, as defined above whose employees receive the same or similar wages, hours and working conditions as the employees covered by the Union's current Master Labor Agreement." 4 Cox, The Landrum-Graf in Amendments to the National Labor Relations Act, 44 Minn. L. Rev. 257-274 ( 1959 ) as quoted in Orange Belt Distract Counsel of Painters No. 48, AFL-CIO, at at. v. N.L.R.B.: (Calhoun Drywall Co.), 328 F 2d 534 (C.A.D.C ). 5 Meat and Highway Drivers, Local Union No 710 V. N L.R B (Wilson h Co ), 335 F 2d 709 (C.A.D.C.) ; Orange Belt District Council of Painters # 48 (Calhoun Drywall Com- pany ), 153 NLRB 1196. THE MORSE INSTRUMENT CO. 1353 I find that by the picketing of Decorators' premises the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Decorators, Anderson, and General have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(b) (4) (i) and (ii) (B) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. On the basis of the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. Decorators, Anderson, and General are persons engaged in commerce or in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. 3. By inducement and encouragement of employees of Anderson and General, and by threatening, coercing, and restraining Decorators in both instances with the object of forcing or requiring Decorators to cease doing business with Bevel or Powers or other carpet installers, the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] The Morse Instrument Co. and International Union , United Auto- mobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Cases 8-CA-4006 and 8-RC-6034. June 24, 1966 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On April 15, 1966, Trial. Examiner William W. Kapell issued his Decision in the above-entitled proceedings, finding that the Respond- ent had engaged in certain unfair labor practices alleged in the com- plaint and recommending that it cease and desist therefrom and take certain affirmative action. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that these allegations be dismissed. In addition, the Trial Examiner found that the Respond- ent had engaged in objectionable conduct prior to the election held in Case 8-RC-6034, and recommended that the said election be set aside and a new election ordered, all as set forth in the attached 159 NLRB No. 117.