Carpet Layers, Local 1238

CARPET LAYERS, LOCAL 1233 475 WE WILL NOT tell our employees that production workers will not be per- mitted to perform maintenance work, that they will be replaced, that the plant will be closed and that the president will pull the switch if they choose to be represented by a union, promise our employees raises or grant them wage increases for the purpose of persuading them not to join or assist a union, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization , to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection , or to refrain from any or all of such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. SAMUELS & COMPANY, INC, Employer. Dated------------------- By------------------------------------------- (Repiecrutatn'e) (Title) NOTE -Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced , or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76102, Tele- phone 335-4211, Extension 2145. Carpet, Linoleum & Soft-Tile Layers Local 1238 and its agent, Robert T. Wolfe and Nielsen Bros., Inc. Case 19-CC-273. Au- gust 10, 1966 DECISION AND ORDER On November 2, 1965, Trial Examiner David F. Doyle issued his Decision in the above-entitled proceeding, finding that the Respond- ent Union had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Union filed excep- tions to the Trial Examiner's Decision, with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Jenkins, and Zagoria]. The 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, the exceptions and brief, and the entire record 160 NLRB No. 39 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' [The Board adopted the Trial Examiner's Recommended Order.] 1 Member Fanning concurs in this Decision in view of the record before the Board and In the absence of evidence establishing that Nielsen was a joint employer with J & J and Master of the employees represented by the Respondent, or that Nielsen was an ally of J & J and Master. In this connection, the 'Respondent neither pleaded nor attempted to prove that Nielsen, J & J, and Master were or have been joint employers Furthermore, while Respondent, in its pleadings, offered as an affirmative defense that Nielsen, J & J, and Master were allies, Respondent offered no evidence to establish such defense, and the evidence presented in this proceeding, including the stipulation of facts, was directed to proving that J & J and Master were in fact independent contractors. Moreover, Respond- ent made no exception to the Trial Examiner's failure to consider the validity of such defense In these circumstances, Member Fanning finds it unnecessary to determine whether a different holding would be appropriate if Nielsen was in fact a joint employer with, or an ally of, J & J and Master. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding with all parties represented was heard by Trial Examiner David F. Doyle in Seattle, Washington, on June 22, 1965, on complaint of the General Counsel and answer of the Respondents. The issue litigated was whether the Respondents'had violated Sections 8(b)(4)(i) and (ii)(B) and 2( 6) and (7) of the Act, by certain conduct more fully described hereinafter.' At the hearing, the parties were represented by counsel and were afforded a full opportunity to introduce evidence, to examine and cross-examine witnesses, and to file briefs on the issues . The parties filed well-reasoned briefs which have been care- fully considered. Upon the entire record and upon my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF NIELSEN, J & J, AND MASTER The complaint and certain admissions in the answer establish the following facts: Nielsen is a Washington corporation with its principal office at 2032 NW. Market Street, Seattle, Washington. It is engaged at that location and at three additional locations in the Greater Seattle area in the retail sale of carpeting. During the year prior to the issuance of the complaint, Nielsen purchased and received directly from points outside the State of Washington carpeting and other materials valued in excess of $50,000, and during the same period had a gross volume of business exceeding $500,000. John A. Anderson, an individual proprietor doing business as J & J, has its princi- pal office in Seattle, Washington, and is engaged in the business of laying and installing carpeting. Robert Alley and Niel Hollow are partners doing business as Master Carpet Service, herein called Master, and have a principal office at Seattle, Washington, and are engaged in the business of laying and installing carpeting. 1 In this Decision , Nielsen Bros , Inc , is referred to as Nielsen ; a business firm doing business as J & J Carpet Service is referred to as J & J ; and a second business firm doing business with Nielsen named Master Carpet Service is referred to as Master , Carpet, Linoleum & Soft-Tile Layers Local 1238 is referred to as the Union , and Robert T Wolfe, agent of the Union, as Wolfe ; the National Labor Relations Board, as the Board, the General Counsel of the Board and his representative at the hearing as the General Counsel , and the Labor-Management Relations Act, as amended , as the Act The original charge in this proceeding was filed on February 15, 1965 An amended charge was filed on March 8, 1965, and a second amended charge was filed on March 19, 1965 The complaint herein was issued by the Regional Director , Region 19, on March 30, 1965 It should be noted that all dates in this report are in the year 196 '5 unless specified other- wise The name of Wolfe, business agent of the Union , was corrected on motion at the heating to Robert T Wolfe, not 'Robert F. Wolfe CARPET LAYERS, LOCAL 1238 477 Upon the pleadings and the record as a whole, it is found that Nielsen, J & J, and Master are and at all times material herein have been employers, and Nielsen is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED It is conceded, and 1 find, that the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. The pleadings also establish that Respondent Wolfe is, and at all times material herein, has been the business representative of the Union and its agent within the meaning of Sections 2(13) and 8(b) of the Act. It is also established by the pleadings and the record herein that at all times material to the issues, the Union has been the recognized collective-bargaining representative of the employees of both J & J and Master, who are employed as journeymen carpetlayers, apprentices, or helpers. It is also established that the Union has been and is a party to collective-bargaining contracts with J & J and Master, covering these employees. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issue The complaint in substance alleges that (1) for a period of time prior to Feb- ruary 15, the Union had been engaged in a labor dispute with J & J and Master, concerning the failure of the later companies to tender timely payment of moneys due for health, welfare, and pension benefits under the collective-bargaining con- tracts referred to above; and (2) beginning on February 15, and continuing until March 23, the Union, under the direction and supervision of Wolfe, picketed Nielsen at its retail store at 2032 NW. Market Street, Seattle, Washington, daily except Sundays and Mondays, in support of the Union's demand that Nielsen enter into a contract with the Union, whereby Nielsen would guarantee the payment of the aforementioned benefits by J & J and Master or by any other contractor utilized by Nielsen to install carpeting sold by it. In connection with the last statement it should be noted that shortly after the com- mencement of the picketing at Nielsen, the arrearages of payments were fully paid up by J & J and Master, but that the picketing continued until enjoined by the appropriate U.S. District Court on March 23, 1965. The General Counsel contends that this picketing had as an object: (a) to force or require Nielsen to cease doing business with J & J or Master, or (b) to force and require customers and suppliers of Nielsen to cease doing business with Nielsen, thereby constituting conduct in violation of Section 8(b) (4) (i) and (ii)B of the Act. The Union in its answer alleged and at the hearing contended that: (1) the sole purpose of its picketing was to support the Union's demand that Nielsen assume its proper responsibility for the costs of installing the carpeting it sold to its customers on an installed basis; and that the payment of arrearages of sums due the Union by J & J and Master was immaterial to the objects and purposes of its picketing; (2) that the Union's conduct at all times was primary in nature and protected by the Act; and (3) that the General Counsel has not established the allegations of the complaint by a preponderance of the evidence. B. The stipulation of facts The facts of this controversy are set forth in a stipulation of counsel and in the relatively brief testimony of several witnesses. This testimony is of such a nature, that it is, for all practical purposes, undisputed. The stipulation of counsel sets forth the main substance of the controversy. This stipulation reads as follows: 2 Mr. CASSIDY: In an off-the-record discussion with General Counsel a stipula- tion was prepared and I will now proceed to read it into the record. Nielsen, a Washington corporation, is engaged in the retail sale of carpeting. Its principal office and one of its retail outlets is located at 2032 Northwest 2 The stipulation is set forth verbatim, except that I have deleted some repetitious ref- erences to the full names of the business concerns and the Union ; no other change has been made. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Market Street, Seattle, Washington . Nielsen's other stores are located in Lynn- wood, Bellevue and Burien, Washington, but the picketing here, involves only its store at 2032 Northwest Market Street, Seattle, Washington. For many years prior to February 15, 1965, Nielsen has contracted with several independent contractors to lay and install carpeting sold by it. At all times material herein Nielsen has utilized two independent contractors for the purpose, namely, J & J and Master. Nielsen has agreed to give J & J and Master first call on all installation requirements. J & J, the sole proprietorship of John A . Anderson, maintains an office in his home and the shop premises adjacent to Nielsen 's Lynnwood store. The shop consists of approximately 900 square feet of space leased from Nielsen at the rate of $50 per month . J & J owns two panel trucks and installation tools and customarily employs two employees . By oral agreement with Nielsen, J & J furnishes installation material such as tack strips , tapes, nails and Nielsen furnishes the carpeting , pad and necessary metal trim. Nielsen does not super- vise the installation but inspects the final product before payment . Nielsen pays J & J at the rate of $ 1.30 per yard unless another rate is specifically negotiated for carpet installation , and no other payment is made by Nielsen . J & J main- tains its own books and records, prepares its own payroll , submits necessary wage and tax withholding , and pays for all maintenance and insurance costs. Nielsen keeps no records for, makes no purchase for, nor furnishes any service to J & J , except the payment of the flat rate installation fee and on occasion calls to the Union for permission of its contractors ' employees to perform overtime work. At all times material, the Union has been the collective bargaining repre- sentative of the carpet layers, apprentices and helpers employed by J & J and Master and has had written collective bargaining contracts with J & J and Master. At various times prior to February 15, the Union has alleged that J & J and Master have failed to make timely payments to the health and wel- fare trust fund and to the pension plan, trust fund, as required under said collective bargaining agreements . Since February 15, all delinquencies have been paid. The Union commenced picketing Nielsen on February 15, 1965, and con- tinued the picketing as alleged in the complaint and admitted in the answer. Nielsen employs one individual in its warehouse who cuts and on occasion sews carpeting in the warehouse , but does not directly employ employees who install carpeting at customers' premises. TRIAL EXAMINER : All right, we will stop there for a moment. Mr. NIELSEN : I don't have any corrections to make. Mr. CASSIDY : That is the end of the stipulation. It seems to me that this is a proper place to note that the record does not disclose the number of salespersons , etc. employed by Nielsen , but it is certain, that at least Jerry E. Reep was employed as a salesman by Nielsen during March , when the picketing was proceeding. Reep testified herein. C. The testimony In addition to the stipulation , Lloyd J. Nielsen, one of the brothers, testified without contradiction as to the commencement of picketing at his Market Street store. Nielsen testified that on Monday, February 15, 1965, he was at home at approximately 9:30 in the morning when he was notified by his brother and partner, John Nielsen , that the store was being picketed . He went to the Market Street store immediately and took a good look at the picket. He then asked John why the store was being picketed . When John said that he did not know, the witness then telephoned to Robert Wolfe, the business agent of the Union. The telephone con- versation with Wolfe took place about noontime . Nielsen asked Wolfe why his store was being picketed , and why they had not been notified in advance that there was some grievance . Wolfe said that the picket sign was explanatory . Nielsen had noticed that the picket sign bore the following legend: NIELSEN BROS. NON-UNION DOES NOT HAVE CONTRACTS WITH CARPET -LINOLEUM AND SOFT-TILE LAYERS LOCAL 1238. Nielsen , in this phone conversation, told Wolfe that his company did not hire carpetlayers and had no reason to have a contract with the Union. Wolfe said, that CARPET , LAYERS, LOCAL 1238 479 the reason the Union was picketing Nielsen , was that the Union wanted Nielsen, "to have a contract to guarantee the payment of health and welfare , wages and all fringe benefits, the same as Frederick and Nelson had," with the Union . (Frederick and Nelson is a large department store in Seattle which sells carpets.) Nielsen then told Wolfe that he still felt that as long as his company did not hire carpetlayers, they were not obligated to have such a contract with the Union. Wolfe said that J & J and Master , the contractors with Nielsen, were not paying their health and welfare fees and that the Union was forced to sue them to collect. Nielsen replied that the payment of the health and welfare and'pension fees of J & J and Master was not his responsibility. Thomas P. Nielsen , the second partner, testified to an incident which occurred on March 17, at the Market Street store . On that date the store was still being picketed. On that date the witness received a telephone call from the truck dispatcher of a company, which was engaged in delivering some carpet to the store . The dispatcher told Nielsen that they did not want to deliver the roll of carpet to the store because the store was being picketed . Nielsen told the dispatcher that some other trucks had delivered carpeting without incident . Then the dispatcher said that the truck would deliver the carpet but not at the front door, the usual point of delivery; the truck would go around the corner from the store and Nielsen could pick up the carpet at that point. In accordance with this plan, the truckdriver drove around the corner, onto NW. 56th Street and Thomas Nielsen and the driver pulled the roll of carpet out of the truck, and carried it across an alley, and into the back entrance of the store. In the course of cross-examination, Thomas Nielsen admitted that an advertise- ment in the Seattle Times of Thursday, March 18, was authorized by the Com- pany. This advertisement states the following: We measure it! We sew it! We install it! We guarantee it! All at one low package price! Thomas Nielsen also admitted that between February 15 and March 23, the Company placed in the front window of the Market Street store a card reading "THIS IS A UNION SHOP ." This was a card of the conventional type; and had been issued by the Union to Master . It was stipulated that this card had been received from Master by Nielsen. Floyd E. Reynolds testified that he was a truckdriver for Interstate Freight Lines and on one occasion he had delivered carpet to Nielsen , by delivering it to a street near an alley at the rear of the store . He helped Thomas Nielsen carry the carpet- ing across the alley and into the rear door of the store. Jerry L. Reep testified that he had been employed as a salesman by Nielsen dur- ing the picketing in March. He testified that he made a call at the home of a cus- tomer during this period. The customer was satisfied with the carpeting , but then told Reep that he would not place his order with the Company, "until it had settled its labor trouble." Robert T. Wolfe was called as a witness both by the General Counsel and counsel for the Union . When called by the General Counsel he testified that he was an officer of the Union; and he identified a copy of a contract between the Union and the Employers of Linoleum Layers Local No. 1238, of Seattle. He said that the con- tract was one which the Union had with certain employers in the linoleum and carpet industry in the Greater Seattle area. In this document there is the following provision: 1. Contract Piecework Where an employer contracts out any of the work covered by this agree- ment, he shall require as a condition of the sub-contract, that the subcontractor affoid to its employees the wages , hours and working conditions contained in this agreement . In the event that the subcontractor fails to provide such wages, hours and working conditions to its employees , the original employer shall remain liable for such wages, hours and working conditions.3 3 This contract is in evidence as General Counsel 's Exhibit 2. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After having his attention called to the paragraph, Wolfe was asked by the Gen- eral Counsel if that paragraph represented the kind of agreement or obligation that the Union wanted Nielsen to assume with respect to the contractors that it utilized in the installation of the carpeting which it sold? The witness answered , "Yes, we wanted an agreement that they would be responsible." The next question put to the witness was by counsel for the Union . He asked the witness to read the paragraph again and to explain his answer in regard to this specific paragraph . Wolfe answered, "Well I have read it. We were not interested in the union security, other thmgs that are in this agreement . That is why I answered the way I did, we wanted a contract that they would be responsible for the payment of wages and fringe benefits." On being recalled later as a witness by counsel for the Union, Wolfe testified that he was the financial secretary and business representative of the Union and its chief executive officer. He stated that he authorized the picketing at the store of the Company and he instructed the picket to talk to no one and to answer no questions. He instructed the pickets further, that deliveries were to be permitted to the store; if the drivers of delivery vehicles were asked if they could go through the picket line, he was to answer in the -affirmative ; any other questions were to be referred to Wolfe, himself. The picket was directed to patrol only in front of the store. Wolfe said that on several occasions he received phone calls from trucking companies inquiring about making deliveries at the store and he told them that they could make deliveries because the Union was only advertising to the public. He also stated that he bad never discussed the picketing with the employees of Nielsen. Wolfe also explained the mechanics of the collection of health, welfare , and pen- sion payments. He said that these payments were made to a board of trustees, who administer these funds . The trustees are chosen by joint action of the Union and the employers . If an employer became delinquent in the payment of health, welfare, or pension payments, the administrator of the plan or the trustees notified the employer by mail that he was delinquent . If the delinquency continued, the employer was sent a second notice of delinquency. If the employer continued to be delinquent for a period of 90 days , then the matter was turned over to the attorney for the trustees of the fund who instituted legal action for collection . Wolfe said that the trustees had on occasion in the past started lawsuits for the collection of such arrearages but that the Union itself did not initiate lawsuits to collect these payments. Wolfe then testified that, "The purpose of the picketing was to let people know that Nielsen Bros. was not responsible for the labor they sold." He also stated that there was no action that J & J or Master could take which would have brought about the removal of the picket line. Wolfe again reiterated that the Union in its picketing sought, "an agreement that they (Nielsen ) would be responsible for the labor they sold." Wolfe stated that the Union did not seek to have Nielsen cease doing business with J & J and Master, because members of the Union were employed by the latter two firms. On cross-examination by the General Counsel Wolfe stated , that at a meeting in January the membership of the Union authorized the executive board to expend some of the money in the union defense fund to picket some employers , particu- larly a class of employers who utilized contractors , and who had not obligated them- selves to guarantee the payment of the Union's wages and fringe benefits, including the payment of certain sums for health , welfare, and pensions. Wolfe testified further, that pursuant to this authority he decided that the Union would picket Nielsen. At the time, J & J and Master were delinquent in paying con- tributions to the health and welfare trust and to the pension trust. Wolfe said that in January, the trustees had sued J & J and Master 4 and ultimately collected the indebtedness which those firms owed to the trustees . After some consultation with counsel for the Union as to the progress of this lawsuit the witness replied that, "we had already taken care of the collection problem before we ever started picketing," at Nielsen's. As the reader must have noted , there exists no substantial conflict in the testi- mony of the witnesses . The brothers Nielsen , Reynolds, and Reep testified candidly, succinctly, and to the point. This record contains not a scintilla of any evidence which would cast any doubt upon the veracity and accuracy of this testimony. I credit the entire testimony of the named witnesses. 4 At that time Master was called Carpet Craft. CARPET LAYERS, LOCAL 1238 481 Robert T. Wolfe also testified in a candid and frank manner. I am willing to credit all of his testimony except that portion which deals with the object of the Union in the picketing of Nielsen. That point is the crux of this case, and in my judgment, the Union's conduct in this picketing, had a much wider and broader object than Wolfe in his testimony, either knowingly or unknowingly, admitted. My reservation on this point is explained at some length hereinafter. Concluding Findings Upon a consideration of the evidence, certain basic facts of this case are clearly established. First, it is admitted that the contractual arrangements of Nielsen, J & J, and Master had existed for a number of years prior to the commencement of this particular picketing. Second, it must be noted that both J & J and Master recognized the Union and had a contract with the Union which governed wages, hours, and working conditions of the employees of J & J and Master who worked at the trade of laying carpet or linoleum. Apparently the relationship of Nielsen, J & J, Master, and the Union was satisfactory, or at least uneventful, until the initiation of the picketing here under scrutiny. Third, it appears certain, beyond any question of doubt, that the act which precipitated the present controversy between Nielsen and the Union, was the failure of J & J and Master to pay money-those sums which those companies should have paid to the health and welfare trust plan and the pension trust plan. Stated simply, those two companies breached their contract with the Union in regard to the payment of those sums. In his testimony, Wolfe stated that when such a delinquency occurred, the trustees of the funds gave a series of notices of delinquency to the delinquent employer and when payment was not subsequently made, the trustees of the plan then instituted suit for the money in the State courts, on the basis of the contract. Wolfe testified that in a prior year, the trustees of the health and welfare plan and the pension plan had been forced to take legal action against J & J and Master for the collection of delinquent payments. Indeed, when J & J• and Master, again became delinquent to initiate the present controversy, the trustees promptly placed the collection of these sums in the hands of their attorney, and these arrearages were paid by J & J and Master, prior to, or shortly after, the initiation of the picketing at Nielsen. To all of these events Nielsen was a complete stranger. Nielsen employed no carpetlayers, so it came as quite a shock to the brothers to find their store picketed on the morning of February 15. Upon a consideration of all the testimony, it appears that this picketing was in the nature of a most dubious experiment on the part of the Union. J & J and Master had breached the contract, but through legal action instituted by the trustees, they had been brought to account and paid in full. At that point, the Union decided that it would avoid the law's delays and burdens in the future by having a more responsible party act as surety or guarantor for J & J and Master. As the Union viewed the field of possible guarantors, Nielsen, as a contractual relation of J & J and Master, became the logical target. Nielsen had no contractual relations with the Union, and had done nothing adverse to any interest of the Union. Apparently, Nielsen's only offense and only attraction was that it was a more responsible, and perhaps more solvent, employer than J & J and Master. Be that as it may, it is clear in the testimony of Wolfe, repeated several times, that the Union's demand on Nielsen was that it become the guarantor or surety for I & J and Master as to the payment of all sums due under the contract between those two companies and the Union, a document to which Nielsen was in no way privy. Niel- sen was not agreeable to being forced by picket-line activity to become the guarantor or surety of J & J and Master, so it filed the instant charge with the Board. In a well-written brief, the Union sought to justify its conduct on the ground that the Union had a primary dispute with Nielsen; that this picketing was conducted in a peaceful manner at the premises of Nielsen, the primary employer, and that the picketing did not have as an object, one which is proscribed by the Act. In support of this argument, the Union relies on the Board 's Decision in Local 1066, ILA (Wiggin Terminals, Inc.), 137 NLRB 45. However, I am not persuaded to this view for several reasons. The General Counsel contends that the conduct here disclosed is a violation of Section 8(b)(4)(i) and ( ii) (B), and he relies substantially on the Board's Decision in Bakery Wagon Drivers Local Union No. 484 (Sunrise Transportation Company), 137 NLRB 987. This case is very close to being on all fours with the facts of the instant case . In Bakery Wagon Drivers Local Union No. 484, supra, the union 257-551-67-vol. 160-32 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sought to enforce an agreement with Continental Baking Company under which Con- tinental had orally committed itself to be responsible for the terms and conditions under which the drivers of any independent carrier utilized by the company in the delivery of its products worked and more particularly, Continental agreed that the terms and conditions of the contracts between the independent carriers and the union would be the same as those in the contract between Continental and the union This oral agreement wa's honored by the parties for several years and then Continental re- fused to honor it, when one of its contract carriers, Sunrise Transportation, was al- legedly delinquent in not paying Bakery Wagon Drivers wages and fringe benefits. Sunrise Transportation employed some driver-salesmen of Bakery Wagon Drivers Local 484 and one employee who belonged to an over-the-road local of the Teamsters. The union then induced a partial strike of Continental's employees for the purpose, among other things, of having Continental renew its commitment to guarantee the payment of wages, health and welfare, etc., by its contract carriers. The Board found that such conduct constituted a violation of Section 8(b) (4) (i) and (ii) (A), because it involved an object of entering into an illegal "hot cargo" agreement. The Board also found that the Union's conduct violated Section 8(b)(4) and (ii) (B), stating: We find, further, that Respondent's admitted inducement of the employees of Continental and Oroweat to engage in partial strikes violated Section 8(b)(4) (i) and (ii) (B) of the Act. With respect to the inducement of Continental's employees, Respondent concedes that it was seeking to compel Continental either to reinstitute the guarantee or to have its delivery services performed in accordance with its own contract with Respondent Union. It is obvious that the alternative avenue of conduct left open to Continental would require a cessation of business with Sunrise. It is therefore apparent that an object of Respondent's conduct was to force Continental to cease doing business with Sunrise. The Board's decision was enforced in Bakery Wagon Drivers Local Union No. 484 v. N.L.R.B., 321 F.2d 353 (C.A.D.C.), where the court observed as to the 8(b)(4)(B) violation: IV. The union further contends that the Board erred in its application of subsection (B) to the events at Continental. The Board opinion, in pertinent parts, states: . With respect to the inducement of Continental's employees, Respondent concedes that it was seeking to compel Continental either to reinstitute the guarantee, or to have its delivery services performed in accordance with its own contract with Respondent Union. It is obvious, that the alternative avenue of conduct left open to Continental would require a cessation of busi- ness with Sunrise. It is therefore apparent that an object of Respondent's con- duct was to force Continental to cease doing business with Sunrise. [Citing Carpenters' Union v. Labor Board, 357 U.S. 93, 42 LRRM 2243 (1958), com- monly known as the Sand Door case.] . The union contends that it has a "legitimate primary dispute" with Conti- nental, and that the cessation of business with Sunrise is purely an incidental result, rather than an "object," of its activities. The union never, however, states very clearly the exact nature of the "legiti- mate primary dispute" with Continental. It did not become a legitimate primary dispute simply because the union was attempting to obtain or enforce an agree- ment with Continental. Carpenters' Union v. Labor Board, supra; Labor Board V. Denver Bldg. Council, supra, Note 9. The union seems to suggest that it was only demanding compliance with the blanket no-subcontracting clause, which would be legal. This contention is refuted by the record, which clearly shows that the union was demanding not just a blanket no-subcontracting clause, but the cessation of business with non-complying subcontractors. We do not understand the Board order to prohibit the union in the future from demanding compliance with the no-subcontract clause. As we understand the Board's order, it only prohibits such a demand when it is used to compel Continental to interfere in the labor disputes of Sunrise. In other words, the union may not threaten Continental with enforcement of the blanket no-subcontracting clause in order to effectuate an arrangement whereby Continental will subcontract only with employers with whom the union has no labor dispute. Any such use of the clause would CARPET LAYERS, LOCAL 1238 483 destroy the basic premise upon which subcontracting clauses, which prima facie violate subsection (B), are permitted , i.e., that the union is seeking to protect some legitimate economic interest of the employees of Continental , and not just using its position at Continental to enforce its demand against subcon- tractors. Upon the facts here, in my judgment the rationale of Wiggin Terminals, supra, cannot be accepted ; the Board's later decision in Bakery Wagon Drivers Local Union No. 484, supra, enforced by the Court of Appeals seems much more persuasive. Furthermore , it has been said that a determination of what is primary and what is secondary activity in a labor dispute must be based on a consideration of all the facts in each case . In this case, it seems to me that the very terminology used by the Union in its demand and the contractual arrangements demanded by the Union requires a finding that J & J and Master were the primary employers , and primary disputants . J & J and Master employed members of the Union , and had contractual relations with the Union. J & J and Master failed to pay certain sums according to the contract and the trustees took legal action against J & J and Master to collect the sums due. To this point, the trustees' action was in accordance with all tradi- tional proceedings at contract law-the party to the contract who promised payment is the party primarily liable for fulfillment of the contract . In the law of suretyship the aggrieved party to contract may not maintain an action against the guarantor or surety until legal remedies against the primary obligor have been exhausted. Similarly here , the Union sued the parties with whom it had a dispute-a dispute based upon the nonperformance of the two employers . Then, not satisfied with this legal remedy, the Union sought by its picket line to force Nielsen to become the guarantor or surety for the payment of health and welfare and pension fees by J & J and Master. In my judgment , this conduct was in violation of the Act and dis- ruptive of all stability in labor relations. It violated Section 8(b) (4) (i ) and (ii) (B) because, to paraphrase the Decision of the Court of Appeals in Bakery Wagon Drivers Local Union No. 484, it is clear that the Union picketed to force Nielsen to guarantee the payments of J & J and Master , but in this conduct there existed an implicit alternative open to Nielsen , to cease doing business with J & J and Master, and then perform carpetlaying itself with its own employees , or obtain the services of a new contractor-installer of such financial reliability as to satisfy the Union. Therefore, I conclude that an object of the Union's picketing was to force Nielsen to cease doing business with J & J and Master . This conduct of the Union violated the Act as set forth in the complaint. Also, this conduct, if declared lawful, would be disruptive of all presently stable labor relations. Employing these picket line tactics, any union could force and require our largest manufacturing companies, such as the industrial giants in the automobile, aircraft, or missile fields to become guarantors for the payments of health, welfare, and pension funds for a veritable host of independent contractors who supply component parts or perform some special service for the industrial giant. The refrain of the Union's argument here, is that it sought to force Nielsen to be responsible for the labor that went into the completed job or product . While this may sound somewhat plausible, when first heard, it loses all practicality and per- suasiveness when applied to anything except the simplest type of employer relation- ship. In the complexity of our present industrial life, the Union 's surface , argument cannot be accepted. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union , as set forth in section III, above, occurring in connec- tion with the business operations of the Company , J & J, and Master described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Union has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following conclusions of law: 1. Carpet, Linoleum & Soft-Tile Layers Local 1238 is a labor organization within the meaning of Section 2(5) of the Act. 2. Nielsen Bros., Inc., J & J Carpet Service, and Master Carpet Service are employers and Nielsen Bros., Inc. is engaged in commerce within the meaning of the Act. 3. By engaging in, or inducing and encouraging employees of Nielsen Bros., Inc. to engage in, a strike or a refusal in the course of their employment to perform services and by threatening, coercing, and restraining Nielsen Bros., Inc , with an object of forcing or requiring Nielsen Bros., Inc., to cease doing business with J & I Carpet Service and Master Carpet Service, the Union has engaged in unfair labor practices within the meaning of Section 8(b)(4)(1) and (ii) (B) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. RECOMMENDED ORDER Upon the entire record in the case and pursuant to Section 10(c) of the Act and in order to effecutate the policies of the Act, I hereby recommend that Carpet, Linoleum & Soft-Tile Layers Local 1238, its officers, agents, representatives, suc- cessors, and assigns, shall: 1. Cease and desist from: engaging in, or inducing or encouraging employees of Nielsen Bros., Inc., or any other person engaged in commerce or in an industry affecting commerce, to engage in, a strike or a refusal in the course of their employ- ment to perform any services, or threatening, coercing, or restraining the afore- mentioned employer by picketing the Market Street store, Seattle, Washington, where an object thereof is forcing or requiring Nielsen Bros., Inc., or any other person engaged in commerce to cease doing business with I & I Carpet Service or Master Carpet Service. 2. Take the following affirmative action which is necessary to 'effectuate the policies of the Act: (a) Post in Respondent Union's business offices and meeting halls, copies of the attached notice marked "Appendix." 5 Copies of said notice to be furnished by the Regional Director for Region 9, after being duly signed by offical representatives of the Respondent Union, shall be posted by the Respondent Union 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 by the Respondent Union to ensure that such notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 19, signed copies of said notices for posting by Nielsen Bros., Inc., that company being willing, in places where notices to employees are customarily posted. Copies of said notice to be furnished by the Regional Director, shall, after being signed by Respondent Union as indi- cated, be sent forthwith to the Regional Director for disposition by him. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent ha staken to comply herewith.6 IT IS FURTHER RECOMMENDED that unless the Respondent Union shall, within 20 days from the date of receipt of this Decision notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent Union to take the action aforesaid. In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforieng an Order" shall be substituted for the words, "a Decision and Order." aIn the event that this Recommended Order is adopted by the Board, paragraph 2(c) thereof shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." GROCERS SUPPLY COMPANY, INC. 485 APPENDIX NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF NIELSEN BROS ., INC., SEATTLE, WASHINGTON Pursuant to the Recommended Order 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, we hereby notify you that: WE WILL NOT engage in, or induce, or encourage employees of Nielsen Bros., Inc., of Seattle, Washington, or any other person engaged in commerce or in an industry affecting commerce, to engage in, a strike or in a refusal in the course of their employment to perform any service for their employer or threaten, coerce, or restrain Nielsen Bros., Inc., of Seattle, Washington, by picketing its Market Street store, Seattle, Washington, where an object thereof is forcing or requiring Nielsen Bros., Inc. or any other person engaged in com- merce or in an industry affecting commerce to cease doing business with J & J Carpet Service and Master Carpet Service, Seattle, Washington. CARPET, LINOLEUM & SOFT-TILE LAYERS LOCAL 1238, Labor Organization. Dated------------------- By------------------------------------------- ROBERT T WOLFF, Representative This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-7542. The Grocers Supply Company, Inc. and Office and Professional Employees International Union, AFL-CIO, Petitioner. Case g3-RC-2636. August 11, 1966 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer C. L. Mosher, of the National Labor Relations Board. The Hearing Officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. 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 Brown and Zagoria]. Upon the entire record in this case, the Board funds : 1. The employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the employer. 3. A question affecting commerce exists concerning the represen- tation of certain employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 160 NLRB No. 41.