Sheet Metal Workers Union Local 283

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers Union Local 283, Sheet Metal Workers International Association , AFL-CIO and Thomas A. DeVol, d/b/a Tad's Service. Case 20-CP-265 bility findings unless a clear preponderance of all the relevant evidence convinces us that they were incorrect , we find no basis for disturbing the credibility findings made by the Trial Examiner Standard Dry Wall Products, Inc , 91 NLRB 544, cnfd 188 F 2d 362 (C A 3) June 27, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On May 3, 1968, Trial Examiner David F. Doyle issued his Decision in the above-entitled proceed- ing, 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 Respondent filed exceptions to the Decision and a supporting brief. The General Counsel filed limited cross-exceptions' and a brief in support of the Trial Examiner's Decision. Respondent filed a motion to strike General Coun- sel's cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 , motion and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent , Sheet Metal Workers Union Local 283, Sheet Metal Workers Interna- tional Association , AFL-CIO, Stockton , California, its officers , agents, and representatives , shall take the action set forth in the Trial Examiner 's Recom- mended Order. ' The Trial Examiner inadvertently failed to find , as stipulated by the parties, that Tad's Service performed services valued in excess of $50,000 in the past year for the Sears, Roebuck & Company retail store here in- volved 2 Under the established policy not to overrule a Trial Examiner 's credi- TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID F. DOYLE, Trial Examiner: This proceed- ing, with all parties represented by counsel, was heard by the Trial Examiner at Stockton, Califor- nia, on January 18 and 24, 1968, on complaint of the General Counsel and answer of the Respondent. Respondent. The complaint, dated November 17, 1967, was based on a charge filed by Leland L. Brewer, a representative of Sequoia Employers Council on October 18, 1967.1 The complaint alleged, in sub- stance, that Sheet Metal Workers Union Local 283, Sheet Metal Workers International Association, AFL-CIO (herein the Union or Respondent) had violated Section 8(b)(7)(C) of the Act by picketing a jobsite and the business premises of Thomas A. DeVol, d/b/a Tad's Service (herein called the Com- pany or Employer) with an object of forcing or requiring employees of the Company to accept or select the Union as their collective-bargaining representative or forcing or requiring the Company to recognize or bargain with the Union, without an election petition having been filed under Section 9(c) of the Act. The Union, in its duly filed answer, denied the commission of any unfair labor practices and, at the hearing, contended that (1) the picketing hereafter described was not recognitional in nature but was picketing of a nonunion employer for the purpose of advertising to the public that substandard wages and working conditions were maintained by the em- ployer; and (2) the persons working for the Com- pany were, in fact, independent subcontractors and were not employees of the Company and, there- fore, there was no appropriate unit in which the Board could conduct an election pursuant to Sec- tion 9(c) of the Act; and the Union attacked the credibility of the General Counsel's principal wit- nesses. At the hearing, counsel for the parties were af- forded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and proposed findings of fact. The General Counsel and counsel for the Union have both filed scholarly briefs which have been carefully considered. Upon the entire record in the case, including my observation of the demeanor and bearing of all wit- nesses, I make the following: ' All dates in this decision are in the year 1967 unless specified to be otherwise 172 NLRB No. 76 SHEET METAL WORKERS UNION LOCAL 283 653 FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY At the hearing, counsel for the parties stipulated to certain facts concerning the business of the Company. Upon this stipulation, I find that the Company which is located at Stockton, California, is engaged, and has been engaged for the past year, in performing services for the Sears, Roebuck & Company retail store located at Stockton, Califor- nia (herein Sears), of installing heating and air-con- ditioning equipment and incidental parts which the said store sold to its customers. During the past year, Sears was engaged at Stockton, California, in the business of selling such merchandise at retail and at said store had gross retail sales in excess of $500,000. During the same period, goods of value in excess of $50,000 were shipped to the said store directly from places outside the State of California. Upon the undisputed facts, it is found that the Company is engaged in commerce and in an indus- try affecting commerce within the meaning of the Act.2 If. THE LABOR ORGANIZATION INVOLVED Upon the pleadings and all the evidence in the case, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act, and that Robert Walden, who is the business represent- ative of the Union, was the authorized representa- tive of the Union in his conduct hereafter related. III. THE UNFAIR LABOR PRACTICES Undisputed Facts; the Background of the Controversy It is undisputed that the Company is the sole proprietorship of Thomas A. DeVol and that it has been engaged in the business of sheet metal con- tracting and the installation of heating and air-con- ditioning equipment. The Company's shop is located in Stockton, California, at 1759 Cherokee Road, in the rear of the cabinet shop owned by one Prohser. There is a semicircular driveway around Prohser's shop which is the entrance and exit to the Company's portion of the premises. It is undisputed that the Company has never had a contract with the Union during the time with which we are concerned. However, DeVol formed a corporation named Tadco, in the year 1955, which engaged in the same line of business as the Company and during the year 1962 Tadco had a contract with the Union. It is undisputed that Tadco and the Union complied with all contract requirements toward each other until Tadco, both the corporation and the business, were sold by DeVol to an individual named Peter Palm on June 3, 1966. Since that date, Tadco has been a separate business entity operating under the manage- ment of Palm and is not connected in any way with the Company. It is conceded by both parties that at no time was the present Company bound by the prior contract between the Union and Tadco. As indicated previously, the principal customer of the Company is the Sears store in Stockton. The Company installs equipment for Sears pursuant to a contract between Sears and the Company. The Company is not engaged in the construction of new buildings or in placing its sheet metal wares or equipment in new buildings. It is likewise undisputed that at all material times the Company has had five employees who were classified either as installers or helpers. The more skilled men who were installers were Roy Shoop- man, Jack Benschoter, and Liebert Gaskill. The helpers were James A. Bacon and Richard Gaskill. These men were carried regularly on the payroll of the Company, which regularly deducted from their pay such items as social security contribu-, tions, unemployment compensation, income tax withholding, etc. The Company also paid the required workmen's compensation premiums on their behalf. It is undisputed that the installers, who have the responsibility for the satisfactory per- formance of each job, are paid on a "piece work" or percentage basis of the contract price of each job, without regard to the nature of the job or whether a helper was also required on the job. The helpers are paid at an hourly wage rate. DeVol acts as the foreman of all the jobs. He reviews the number of men required for the jobs and assigns them. The employees start work at the Company's shop at 8 a.m. and continue until the end of the workday. In the course of cross-examination, counsel for the Union educed evidence on two particular points in the operating arrangements: (1) each of two in- stallers had a pickup truck which he owned, and he used his own truck on the jobs and his own tools; and (2) if an installer wanted to work later than 5 p.m., he was allowed by DeVol to do so. Undisputed Facts: the Initiation and Extent of the Union's Picketing As noted previously , the primary issue in this, proceeding is the nature and object of the picket- ing. This is the subject of extensive testimony by Thomas A. DeVol, the proprietor of the Com- pany and the principal witness for the General Counsel and by Robert Walden , the Union 's busi- ness representative , the principal witness for the Union . There are supporting witnesses but DeVol and Walden are the representatives of the parties ' Siemons Mailing Service, 122 NLRB 81, Carolina Supplies and Cement Co, 122 NLRB 88, New Jersey Poultry, 115 NLRB 536 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who discussed company-union affairs prior to and during the time of the picketing, and their testimony presents a sharp credibility issue. However, the dates, times, places, and the extent of the picketing are not in dispute. Early in the proceeding the General Counsel examined Business Agent Walden as an adverse witness. In the course of this testimony, Walden stated that as the union representative he personally picketed at a job being performed by the Company called the "Semler jobsite" on or about August 8, 1967, Walden said that on this occasion and at all other times the picket signs which the Union used read as follows: UNFAIR TAD'S SERVICE Does Not Observe Working Conditions Established in This Area For Building Construction Workers AFL-CIO SHEET METAL #283 Walden also said that his Union picketed the business premises of the Company from August 14 through October 2, using the same legend on the picket sign.' Walden obtained the pickets through the Building Trades Council and he personally in- structed them to go to the premises of the Com- pany and directed their operation at that place. Walden stated that from time to time he appeared at the picket line to assist the pickets in their work. During the time that picketing was conducted at the Company's premises , the picketing was con- ducted on a daily basis, Monday through Friday from 8 a.m. to 4:30 p.m. It is undisputed that for the first 3 or 4 days the picket sign was stuck on the front end of a truck parked approximately 10 feet from the driveway entrance to the Company, while the pickets sat in the truck. Thereafter, the picket, each morning, wired or nailed the picket sign to a utility pole near the entrance to the premises and sat nearby. The Conflicting Oral Testimony of DeVol and Benschoter DeVol testified that early in the month of May 1967, Walden came to his shop and asked DeVol when the Company was going to live up to the union agreement. DeVol replied that he didn't have any agreement with the Union. Wal- den then took a contract from his pocket and said, "Well, here's one. You can sign it and you will have." DeVol replied that he was not interested and that he'd like to talk to his men before he would make any decision in the matter. DeVol heard no more from Walden until August 8, when he received a telephone call from installer Roy (General Counsel's witnesses testified that picketing occurred between August 17-October 2 This variance is not vital because the picketing Shoopman, who was at a private residence which is referred to as the "Semler job." Shoopman in- formed DeVol that the Union had placed a picket out in front of the jobsite and asked DeVol for in- structions. DeVol told him to stay on the job and that he would go out to the job and see him. Later in the day, DeVol went to the Semler job, but the picket had left the jobsite. DeVol testified that on September 25, about 9 a.m., while picketing was being conducted at the Company's premises, Walden telephoned him and requested that they meet to sign a contract. Because the premises were being picketed the men agreed that they would meet at a cafe in Stockton called the Revlon Cafe. According to DeVol, when the men met around 10 a.m., Walden produced a contract and asked DeVol if he was ready to sign it. De Vol replied that he would not sign any contract without knowing what was in it and that he wanted an opportunity to discuss the contract with both his employees and his attorney. He asked for a copy of the contract. Walden replied that he should get a copy from the Sheet Metal Contractors Associa- tion. DeVol asked if his employees would be required to join the Union. Walden answered that after the contract was signed the employees would have 8 days to make up their minds. With that the men parted and later in the day DeVol obtained a copy of the union contract from the Sheet Metal Contractors Association. DeVol testified further that the next meeting between the representatives of the Union and the Company occurred on September 29. On this occa, sion Walden telephoned him and agreed to remove temporarily the picket from the Company's premises and meet with DeVol at the Company's shop. Again Walden told DeVol that he had a con- tract for him to sign and handed a contract to DeVol. DeVol asked Walden to leave the contract so his attorney and employees could study it. Wal- den told him that he could sign the copy of the con- tract which DeVol had obtained from the Sheet Metal Contractors Association. DeVol replied that he preferred the one presented by Walden and that Walden left the contract with DeVol and departed. According to DeVol the last meeting of the representatives of the parties occurred on October 12 which was also the last day of the picketing. On this occasion, Walden came to the Company's shop and discussed the contract with DeVol and with one of the employees, installer Jack Benschoter. Walden asked DeVol if he was ready to sign the contract, and Walden explained that DeVol's em- ployees would have 8 days to join the Union after the contracts were signed and that the initiation fee for employees would be reduced to $25 or $50. Ac- cording to both DeVol and Benschoter, DeVol said lasted more than 30 days and Respondent has stipulated that no petition was filed pursuant to Section 9(c) of the Act. SHEET METAL WORKERS UNION LOCAL 283 that he did not like the contract provision which provided for inspection of the Company's books. Walden said that this would be done by himself or a CPA to make sure that the union wage scale was paid. DeVol asked if the Company could pay its employees on a piecework basis. Walden said that the contract did not provide for such payment but the matter could be discussed with the Union's negotiating committee. The men then discussed the fact that DeVol was his own shop foreman. Walden said that a foreman was required by the contract, but this too, could be taken up in conference with the negotiating committee . In this conversation, ac- cording to Benschoter, Walden said that maternity benefits under the health and welfare plan of the Union would begin immediately upon the signing of the union contract. Benschoter informed him that he and the other employees were not interested in the Union and that if DeVol should sign the con- tract he, Benschoter, would quit and find some place else. Installer Jack Benschoter had prior dealings with Walden . In his testimony Benschoter said that he had previously met Walden in late July at Helen's Coffee Shop in the city of Lodi, California. While Benschoter was having some lunch , Walden and another union representative approached him and asked Benschoter if he was ready to join the Union. According to Benschoter , he replied in the negative and then Walden told him that he ought to join and said that he was going to give him "some free publicity." On or about August 8-15, Benschoter and Walden again encountered each other at a coffeeshop in the building which contains the union office . On this occasion , Walden told Benschoter that the health and welfare benefits of the Union were good and he showed Benschoter a paycheck for a little over $200 and said that this would be an average weekly paycheck if Benschoter became a union member . Benschoter had in his possession a current paystub which showed that he had been paid $416 for the period by DeVol. He showed this to Walden. Benschoter told Walden that he didn't think DeVol would ever sign a contract with the Union. Walden said that he could get Benschoter a job with Peter Palm or Grogin Plumbing Company, both of whom had contracts with the Union. Walden had with him at the time a picket sign which he showed to Benschoter saying that he had used it on the Semler job and that he was going to give the Company the "free advertising" he had mentioned previously. The Union-Sears Conversations Virgil Komarek, the operating superintendent of the Sears Stockton store, testified that he had a talk with Walden and another union representative around August 14. On this occasion, the union representatives came to his office and introduced themselves to him. Walden asked if his company 655 had Tad's Service doing installation work for the store. Komarek replied in the affirmative. The union representatives then informed him that the employees of Tad's Service were not mem- bers of the Union. Komarek said he did not know whether the men were members of the Union or not. He pointed out to the union representatives that the contracts which his company has with other companies do not require that the work be done by either union or nonunion labor; that his company was interested in obtaining satisfactory work for its customers without regard to union af- filiation. On direct examination, Komarek testified that he asked the union representatives if they would like to have the company's employees join the Union and that the union representatives an- swered in the affirmative. On cross-examination, Komarek was shown an out-of-court statement he had made to an agent of the General Counsel, and Komarek admitted he had not told the Field Examiner about this state- ment of the union representatives. On redirect examination, Komarek said that he was not sure whether he asked the question which brought up the subject, or whether the union representatives volunteered the statement, but they did say they would like the company's employees to join the Union. One or two weeks later, Walden again visited Komarek and told him that he was getting pressure from his people because the employees of the com- pany did not belong to the Union. On this occasion, Walden showed Komarek a handbill which the Union had printed. Komarek testified that the same handbill was distributed in front of his store on Oc- tober 14. It read as follows: To Whom It May Concern INFORMATIONAL PURPOSES ONLY To inform the general public that the Sears and Roebuck Co., Stockton, Calif. is hiring the Tad's Service Co. located in Stockton, Calif., to install heating and air-conditioning units and other sheet metal work. Tad's Service Co. is not signatory to a labor-management agree- ment with Sheet Metal Workers International Association Local Union No. 283, Stockton, Calif. The Union's defense; the testimony of Business Representative Walden Robert Walden, the business representative of the Union, after examination by the General Coun- sel as an adverse witness in the first instance, was later called as a witness for the Union. Walden stated that he was the only business representative for the Union and its sole executive officer operat- ing under the direction of the Union's executive board. He was the officer of the Union who talked 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with prospective members and with the employers who engaged in the sheet metal industry within the jurisdiction of the Union . In the course of his first examination , Walden admitted the facts of the picketing which had occurred at the Semler re- sidence and at the premises of the Company. When Walden was asked if he was given instructions by anyone to go to the address of the Semler residence and do the picketing , he replied that he was not in- structed by the executive board to picket at any particular place , but that he was instructed to picket the Company . When he was asked when he was instructed to do that , he replied, " I have no idea." Walden said that he obtained the men to perform the picketing from the Building Trades District Council and he instructed them to picket with the sign which has been described. In the course of his examination by Union counsel and in connection with the Union 's claim that it was picketing to maintain area standards and conditions of employment , Walden gave the following surprising testimony: Q. Were you aware at that time as to the terms and conditions under which persons per- formed services for Mr . DeVol? A. At that time? Q. Yes, sir. A) No. Q. Did you know whether or not they worked for wages or on a piecework rate basis? And this is prior to August 8, 1967. A. No. 0. You did not know that? A. No. Q. Do you now know? A. By statements that they made to me during the discussions that have been held. 0. All right. And those discussions were held between August 8 and October- MR. TEAGLE : I object, Mr. Examiner. MR. WEINBERG : I will withdraw the question. Walden said that he had a conversation with DeVol at the shop of the Company sometime prior to June 1967. At this conversation only DeVol and Walden were present . Walden 's version of this con- versation was that he went to the shop to see "about the possibility he [DeVol] was still under an agreement with us ." Then he said that he didn't re- call any of the actual conversation which occurred, but that he did not ask De Vol to sign a copy of the union 's contract . When asked if he had a copy of the contract with him on that occasion , he replied, "I always have a copy of the contract with me." Walden testified that De Vol took the position that the Tadco-Union contract had nothing to do with his present proprietorship . Later Walden checked this with the Union 's lawyer and was informed that DcVol's position was legally correct. Walden also testified that he met with DeVol at the Revlon Cafe, and that in the conversation that occurred at that place DeVol asked him for a copy of the contract and he told DeVol that he "couldn't give him a copy of the contract." However, he let DeVol see a copy of the contract and DeVol ex- amined it . Then he told DeVol that he wasn 't going to give him a copy of the contract, that if DeVol wanted a copy "to study or anything like that," DeVol could go out to the Contractors Associa- tion and get one from them. Walden testified that he had a conversation with Komarek of Sears, Roebuck & Company. At that point Walden was asked , "Did you say anything to Mr. Komarek about wanting Mr. DeVol in the Union?" Walden answered, "I say no." Walden testified that the picketing was ended on approxi- mately October 3, 1967. When Walden was asked why he picketed at the Semler residence he replied, "To advertise to the public that they were not paying the wages, hours and working conditions of the Sheet Metal Wor- kers." He also testified that he had never made a demand upon DeVol to sign a copy of the Union's then current collective-bargaining contract and would not permit DeVol to sign such a contract. On this point on examination by union counsel, the transcript of testimony reads as follows: Q. And, Sir, what was your purpose in pickting that job site? A. To advertise to the public that they were not paying the wages , hours and working con- ditions of the Sheet Metal Workers. Q. Had you at any time before that made a demand upon Mr. DeVol to sign a copy of your then -current collective bargaining agree- ment? A. I did not ask him to sign an agreement. Q. And why, Sir, did you not ask him to sign a collective bargaining agreement before you began to picket? A. Because of the difficulties that had been had in the past. Q. What difficulties? A. The contracts that we had with him. Q. With Mr. DeVol the person? A. Yes. MR. TEAGLE : I object , Mr. Examiner. It has nothing to do this this case ... TRIAL EXAMINER : I'll let it stand the way it is and take it the way it is Walden testified further that the last meeting between the parties occurred on October 12 at the shop , and on this occasion Benschoter was with DeVol and Walden. On this occasion DeVol asked about the provision in the contract which permitted the Union to inspect the Company's books . He told Walden that the Company would have to permit the inspection so that the Union would be sure that DeVol was paying the union wage scale . They also discussed the fact that the union contract re- quired that a foreman be on the job. Walden SHEET METAL WORKERS UNION LOCAL 283 657 told them that if DeVol signed a contract with the Union he would have to live up to the bargaining agreement and have a foreman . Walden also testified that on this occasion he told DeVol that if anything was done about the contract he would have to talk to the negotiating committee. At the conclusion of this meeting he left a copy of the con- tract with DeVol. At the close of the examination of Walden by counsel for the Union and the General Counsel, the Trial Examiner engaged in the following colloquy with Walden: TRIAL EXAMINER : You are excused-just one more question . Now I know what it was that was bothering me before . It comes back to me. Now, all during this time, as I understand your testimony, Mr. Walden, that you talked to Mr. DeVol, and all during this time you would not let Mr. DeVol sign a contract with your Union because of his past conduct when he had a contract with your Union ; is that right? THE WITNESS : Right. TRIAL EXAMINER: I gathered from something you said that you were dissatisfied with Mr. DeVol's conduct in regard to Tadco so that now, while you were discussing contract with him, you were of the frame of mind that you would not let him enter into a contract? THE WITNESS : Myself, no. TRIAL EXAMINER : Yes. Did your Executive Board take any action in that regard prior to the time you talked to Mr. DeVol at Tad's Ser- vice? Do you get what I mean? Were they so dissatisfied with his conduct prior to this that they had told you, "Don't sign a contract with DeVol"? THE WITNESS : Right. Yes. After some recross -examination by the General Counsel in regard to the minutes of the executive board meeting, The following colloquy occurred: TRIAL EXAMINER: Well, I don't know if I'm going to delay this any further for any records either . Now, you were at a meeting where these minutes were actually taken? THE WITNESS: I was. TRIAL EXAMINER : Can you tell us what was the nature of the complaint on Mr . DeVol? THE WITNESS: The nature of the complaint? TRIAL EXAMINER : Yes. Why was the Execu- tive Board angry? Had he done something specific? THE WITNESS : He had been on negotiations with the Association . He had been chairman of negotiations in the past years, and some of the things that he had negotiated or tried in negotia- tions and actions and the way he was operating and wanted to operate, it always spoke for itself as to what he would do, his actions. TRIAL EXAMINER : All right . I will leave the answer . Anybody want to cross-examine or ex- amine this witness any further? At the conclusion of all the evidence, counsel for the parties stipulated that "if called as a rebuttal witness, Thomas A. DeVol would testify that he was on the Contractors Association Negotiating Committee in the year 1955, and would deny the other testimony by Mr. Walden regarding his con- duct and animosity and so forth at that time." The General Counsel devoted considerable time to examining Walden on his claim that the picket- ing was for the purpose of maintaining area stand- ards and conditions of work. Walden admitted that he did not know the wages or terms and condi- tions of employment at the Company until he received his first knowledge on or around October 12, that some of the employees were paid on a piece rate basis. He admitted that he never knew what the amount of this payment was or the hourly rate at which the helpers were paid; and he ad- mitted that he had no knowledge of the other terms and conditions of employment. The current con- tract of the Union for the period July 1, 1967, to June 30, 1969, and entitled Standard Form of Union Agreement was admitted in evidence (G.C. Exh. 7b) and the General Counsel examined Wal- den about the contract. Walden admitted substan- tially that the conditions of work and the rates of wages which the Union sought to maintain by its picketing were set out specifically in the contract. The General Counsel cross-examined Walden at great length to demonstrate that in fact the Union sought to require DeVol and his employees to live up to the terms of the contract, although the em- ployees had not designated the Union as their representative nor had the Company entered into contractual relations with the Union. Among the provisions of the Standard Form of Union Contract is a union-shop provision which would require the Company's employees to accept the Union as their collective-bargaining representative and require the Company and the employees to accept many other specific provisions such as. a particular minimum wage scale; permissive inspection of the Company's books to insure compliance with certain minimum wage scales set up by the Union; particular welfare plan payments and pension plan payments; vacation plan payments and restrictions on employees' accu- mulation of vacation time and vacation allowance. The contract has a requirement that the employer must allow vacation time off, and that work time lost in strikes would not be counted as vacation time . The contract also lists seven named holidays; rates of pay for foremen and a requirement that each shop have one foreman; particular rates of travel pay, showup pay, and subsistence pay; and a union label clause ; etc. After the General Counsel had examined Walden on the contract paragraph by paragraph, the Trial Examiner restricted further cross-examination on the ground that it was becom- ing cumulative. On redirect examination , counsel for the Union brought out the fact that Benschoter had at one 354-126 O-LT - 73 - pt. 1 - 43 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time partially filled out an application for member- ship form in the Union . In his cross-examination prior to that time, Benschoter had testified that he never made application for membership. Ben- schoter was recalled by the General Counsel and he stated that at the time he signed the applica- tion he was working as a sales engineer for an employer named George Schooler, and that one of the sales engineers working with him recommended that he become a member of the Union and he spoke to Walden at his office. On that occasion, Walden told him that he could not become a member of the Union because he was not working at the trade, but that he possibly could become an associate member and that is why Benschoter made the application. The above recital of the evidence is not an ex- haustive and complete recitation , but a summary of the highlights of testimony upon which each party relies. Some testimony and some documentary evidence has not been mentioned in the summary but that does not mean that the Trial Examiner has not carefully considered such items of testimony or documents. Brevity requires that some limits be placed on the length of this decision. Concluding Findings Counsel for the Union contends that the instal- lers and helpers of the Company do not constitute a unit appropriate for collective bargaining because the installers are independent contractors. He relies mainly on two points in the employment arrange- ments to support this contention : ( 1) that two in- stallers use their own trucks on the jobs; and (2) though time for work established for the jobs by the Company is 8 a.m.-5 p.m., the installers may work later than 5 p.m. if they so desire. I cannot agree that these two minor features, which appear to be the only variances from the traditional and conventional employer-employee conditions, render the installers independent con- tractors. The transcript establishes beyond doubt that at all times the installers and helpers were car- ried as employees on the Company's payroll and that the Company regularly made proper deduc- tions for social security contributions, income tax withholding, unemployment compensation con- tributions, and the company-paid premiums for Workmen's Compensation for them. The Board with court approval has held for many years that in determining whether a person is an employee or an independent contractor that the proper test to be used is the Board's "right to con- trol" test. Where the person for whom the services are to be performed retains the right to control the manner and means by which the result is to be ac- complished, the relationship is one of employment; 4 Trade Winds Transportation Company Ltd, 168 NLRB 860, Deaton Truck Lines, Inc , 143 NLRB 1372, enfd 337 F 2d 697 (C A 5), Butchers' while, on the other hand, where control is reserved only as to the result sought, the relationship is that of an independent contractor. Here, all work was performed in the manner specified by DeVol, was supervised by DeVol as foreman, and the men were paid by DeVol either on a piece rate or hourly rate. Therefore, I find that the installers and helpers were employees of the Company and constituted an appropriate unit for bargaining. As mentioned previously, the principal issue in this proceeding must turn on the resolution of the credibility question between witnesses DeVol and Benschoter on the one side and Business Represen- tative Robert Walden of the Union on the other. DeVol was a satisfactory witness. He testified in a businesslike, forthright fasion and appeared to be sincerely trying to answer all questions candidly and fairly. On some minor points his memory was vague, but in the main his testimony was persua- sive, inherently plausible, and consistent with all the undisputed facts in the case. I credit DeVol's entire testimony. Benschoter is a young man in his early 20's who testified that he is a sheet metal worker by trade but a student for the law in his spare time. He, too, seemed to be a fair and candid witness and I credit his testimony. The testimony of DeVol and Benschoter is simple and direct; the purport of their testimony is that from a time shortly prior to the beginning of the picketing until after its cessation the Union sought to extract from DeVol a contract with the Union, and sought to impose the Union on the employees of the Company as the employees' exclusive bar- gaining representative. Those facts which are un- disputed in the case such as the union pamphlet dis- tributed at the Sears store are consistent with this testimony and support it. On the other hand, Robert Walden, business agent of the Union, was a witness who appeared to be ill at ease and who at times became most eva- sive. The main thrust of Walden's testimony was that although the Union went to considerable trouble to picket the premises of the Company and one of its jobsites, it would not at any time enter into contractual relations with DeVol and did not seek to enroll Benschoter and the other employees in its membership. When Walden gave this testimony, he appeared to be most uneasy and was not persuasive. I am constrained to reject Walden's testimony or two principal grounds; (1) his de- meanor and bearing was not that of a candid, truthful witness; and (2) his testimony contains several inconsistencies which in the light of all the evidence renders his testimony inherently implausi- ble. While there are several sharp conflicts of testimony between DeVol and Walden, there are Union Local No 120 (Moriz Portuguese Sausage Factory), 160 NLRB 1465, enfd. 67 LRRM 2768 (C A 9) SHEET METAL WORKERS UNION LOCAL 283 659 certain undisputed facts which cannot be recon- ciled with Walden's testimony. The first of these to be considered is the fact that there is no doubt as to the purpose of the first meeting between DeVol and Walden. As to that meeting, Walden testified that he went to DeVol's place of business with the purpose of seeing if DeVol was going "to live up to" the union contract which DeVol's former corporation had with the Union. It is un- disputed that DeVol told Walden that the Company was not bound by the old contract and that DeVol did not intend to adopt it or enter into a new con- tract with the Union. According to Walden, he checked the legality of DeVol's position with union counsel and was told that the old contract ran to the corporation which DeVol had sold, and had nothing to do with the present Company. Thus, the undisputed fact is that at the inception of this con- troversy the Union sought to require or enter into contractual relations with DeVol. At a point midway in the controversy, Walden and a representative of the District Council talked to Komarek, the superintendent of the Sears store at Stockton. According to Komarek, who testified in a fair and most disinterested manner, Walden told him that the men who were doing the installa- tion work for the Company were not members of the Union and in the course of the conversation Walden told Komarek that the Union wanted the Company's employees to be members of the Union. At a second meeting with Komarek a week or two later, Walden showed Koarek a handbill which the Union was passing out. The gist of the union complaint with the Company is stated in the handbill as, "Tad's Service Co, is not signatory to a labor-management agreement with Sheet Metal Workers International Association Local Union No. 283, Stockton, California." In the course of his testimony, Komarek stated that the same handbill was passed out in front of the Sears store at Stockton on October 14, a date after the picketing had been stopped at the Company 's premises. From this documentary proof and undisputed facts it would appear that the Union 's complaint with the Company from first to last was that the Company was "not signatory to a labor -management agree- ment with Sheet Metal Workers, International Association Local No. 283." Walden testified that the Union's purpose in the picketing was not to obtain a contract or to represent the employees of the Company, but to maintain area standards of wages and working con- ditions. This is a contention which has been ad- vanced previously in cases similar to this one, and presents to the Board the question of whether the picketing is genuine " area standards " picketing or is a pretext used by the Union to cloak or conceal its conduct which is violative of Section 8(b)(7)(C). At the outset, this testimony of Walden was rendered highly suspect by Walden himself when he testified that at the time picketing began he did not know the wages and working conditions under which the Company's employees worked and were paid. Furthermore, at no time in the course of the con- troversy did Walden ask DeVol to furnish him with the wage rates or any information as to the terms and conditions under which the Company's em- ployees worked. This testimony of Walden became further suspect when he testified that despite the picketing, the Union would not enter into a con- tract with DeVol because of DeVol's prior conduct toward the Union. When the Trial Examiner asked Walden what the conduct of DeVol was which had caused the Union to take such an unusual attitude toward DeVol, Walden testified that when DeVol was a member of the negotiating committee for the Sheet Metal Workers Associa- tion he had sought to negotiate some terms of the contract of which the Union did not approve. No specifics of this conduct were furnished by the wit- ness, and counsel for the parties stipulated that DeVol was a member of the negotiating committee of the association on one occasion, which had oc- curred many years prior to the inception of the present controversy. Walden also testified that the Union did not seek to represent the employees of the Company, but that was immediately called into question by the testimony of Benschoter, who testified that on several occasions he was the object of Walden's at- tempt to recruit him. It is undisputed on this point that Walden at all times sought to recruit Benschoter into the Union and the employee stead- fastly refused. While there may be differences in the testimony of Walden and Benschoter as to ex- actly what was said between these two on certain occasions, there is no doubt about Walden's pur- pose in talking to Benschoter-always Walden sought to enlist Benschoter in the Union. When one considers all the evidence in this case, the documentary evidence, the undisputed facts, and the credited testimony of DeVol, Benschoter, and Komarek, the trier of the fact must conclude that Walden's devotion to his Employer, the Union, has lead him into false testimony, and that the Union's claimed "area standards" picketing is a pretext and a sham. Upon a consideration of all the evidence, I find that on or about August 8, 1967, the Union caused a jobsite of the Company to be picketed and beginning on or about August 17, 1967, and continuing until on or about October 13, 1967, caused the business premises of the Company to be picketed, both located at Stockton, California, with an object to force or require the Company to recognize and bargain with the Union as the collective-bargaining repre- sentative of the employees of the Company and to force and require employees of the Com- pany to accept or select the Union as their collec- tive-bargaining representative without a petition 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD having been filed under Section 9(c) of the Act for an election among the said employees , in violation of Sections 8(b)(7)(C) and 2 ( 6) and (7) of the Act.5 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with Com- pany's operations described in section I, above, ave a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing comerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(7)(C) of the Act, it is recommended that it cease and desist therefrom and take certain affir- mative action designed to remedy the unfair labor practices and to effectuate the purposes of the Act Conclusions of Law 1. Thomas A) DeVol, d/b/a Tad's Service, is an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and the Respon- dent is a labor organization within the meaning of Section 2(5) of the Act. 2. By picketing a jobsite and the business premises of Tad's Service in Stockton, California, with an object of forcing or requiring the Company to recognize or bargain collectively with Respon- dent as the representative of its employees, and with an object of forcing or requiring the Com- pany's employees to accept or select the Respon- dent as their collective- bargaining representative, although the latter has not been certified as the representative of said employees and did not file a petition under Section 9(c) of the Act within 30 days from the commencement of said picketing, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respon- dent, Sheet Metal Workers Union Local 283, Sheet Metal Workers International Association, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from picketing or causing to be picketed, or threatening to picket or cause to be picketed, Tad's Service, where an object thereof is to force or require said Company to recognize or bargain with the Respondent, or any other labor or- ganization , as the bargaining agent of its employees, or forcing or requiring the employees of said Com- pany to accept or select the Respondent, or any other labor organization, as their collective-bar- gaining representative, in circumstances violative of Section 8(b)(7)(C) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its business offices, meeting halls, and all other places where notices to members are customarily posted, copies of the attached notice marked "Appendix."" Copies of said notice, to be furnished by the Regional Director for Region 20, shall, after being duly signed by Respondent's representative, shall be posted by said Respondent immediately upon receipt thereof, and be main- tained 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 to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 20, signed copies of said notice for posting by Tad's Service, if willing, in places where notices to em- ployees are customarily posted. Copies of said notice to be furnished by the Regional Director, shall, after being signed by the Respondent, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for Region 20, in writing , within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.7 Centralia Building and Construction Trades Council v N.L.R B , 363 F 2d 699 (C A D C ), State Mart Inc, 166 NLRB 818, N L R B v. Local 182, Teamsters, 314 F 2d 53 (C A 2) ' 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " ' In the event that this Recommended Order is adopted by the Board, this provision 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 " APPENDIX NOTICE TO ALL MEMBERS OF SHEET METAL WORKERS UNION LOCAL 283, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor relations SHEET METAL WORKERS UNION LOCAL 283 Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT picket , or cause to be pick- eted , or threaten to picket , Thomas A. DeVol , d/b/a Tad 's Service , where an object thereof is forcing or requiring said Employer to recognize or bargain with us or any other labor organization as the bargaining representative of its employees , or forcing or requiring the employees of the said Employer to accept or select us or any other labor organization as their collective-bargaining representative, in circumstances violative of Section 8 (b)(7)(C) of the Act. SHEET METAL WORKERS UNION LOCAL 283, SHEET METAL WORKERS 661 INTERNATIONAL ASSOCIATION , AFL-CIO (Labor Organization) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.