Carpet, Linoleum, Etc., Local 419

876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpet, Linoleum, Soft Tile and Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO and Sears, Roebuck and Co. Case 27-CC-278 June 20, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On February 6, 1969, Trial Examiner Maurice M. Miller issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial ` Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision with a supporting brief, the General Counsel filed an answering brief, and the Charging Party filed an answering brief and cross-exceptions 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 nree-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, cross-exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following clarification.' We agree with the Trial Examiner's findings, based on the application of the "right to control" test to the particular facts of this case, that the floor covering installers involved herein, who perform services for Sears, Roebuck and Co., are independent contractors. Further, we agree that there is no basis for finding Sears to be an "ally" of the contractors in their dispute with the Respondent. As more fully set forth by the Trial Examiner, all of the installations are accomplished by separate enterprises, which have other customers in the Denver area. These businesses are operated from the homes of their owners, who perform no work on the Sears' premises. They operate with their own business trucks, tools, materials, bank accounts and liability insurance, and they wear no Sears' uniform of any kind. The installers are responsible to repair any of their work which is defective and to pay for any damage. The installation enterprises set their own daily work limitations and schedules and on 'The Respondent's request for oral argument is hereby denied as, in our opinion, the record, including the exceptions, cross-exceptions, and briefs, adequately presents the issues and the positions of the parties. occasion several have subcontracted Sears' jobs without prior approval or knowledge of Sears. Although the contracts between Sears and the installers call upon the contractor to refrain from doing extra work for Sears' customers without written authorization, the practice is clearly to the contrary. Unlike Sears employees, the installers' relationship with the company is not governed by the personnel manual, nor do they have to take the physical examination required of all Sears' employees, and none of the contractors or their employees receive any employee benefits from Sears, except an occasional 1-day discount which is also available to police and firemen, among others. Those installers who perform services with their own employees pay such assistants at rates fixed solely by them and deduct from their wages all necessary items such as social security and taxes . On the other hand, the contractors are paid by Sears without any such deductions. Contrary to the Respondent 's contention, the facts of this case are clearly distinguishable from those in Carpet Center.2 Unlike the particular indicia of control retained by the retail carpet dealer in that case, the record here shows that the installers can and do schedule work for other customers on the days they work for Sears and they determine the order of performance . Furthermore, Joe and Eddie's Carpet Service, one of the installers herein, reschedules work by arrangement with Sears' customers without notifying Sears. None of the installers are supplied with precut or presewn material, or with instructions on how to get to a customer's premises. The contractors need not report to Sears daily or at any given time, and assignment of work is not based on where the installers live. Although the contractors are presumably required to give Sears notice whenever they will be unavailable for work because of vacations, sickness, or for some other reason, there is some record evidence that such notices are not given. The price lists which were arrived at through negotiations between Sears and the installers reflect the fact that the contractors are paid according to the difficulty of the work, instead of a single rate per square yard. The installers can and do change the prices set forth on work orders if for any reason they do not accurately reflect the actual work performed . Generally the installers are supplied with a room layout showing the areas to be covered and on occasion the seams to be sewn ; however, they may and do disregard said layouts if they believe they can perform the job in a more satisfactory manner . Furthermore, if in their judgment a job cannot be completed satisfactorily the installers can and do reject the assignment.3 'Local No. 2265, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Carpet Center, Inc.), 170 NLRB No. 93 'The instant case is also distinguishable from the recent decision in Carpet, Linoleum and Soft Tile Layers Local No. 1238 (Arnold's Carpet). 175 NLRB No. 50, in that here there is substantial record evidence that 176 NLRB No. 120 CARPET, LINOLEUM , ETC., LOCAL 419 From the foregoing, it is apparent that the Sears' installers clearly have a far greater scope of decision-making power than those in Carpet Center and Arnold's Carpet and are independent contractors. Having found that the installers are independent contractors and that Sears is not sufficiently related to the contractors to destroy its neutrality, we adopt the Trial Examiner's further findings that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by picketing Sears, with an unlawful object of forcing Sears to cease doing business with the installers, including Joe and Eddie's Carpet Service, with whom the Respondent had a dispute. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Carpet, Linoleum , Soft Tile and Resilient Floor Covering Layers, Local Union No . 419, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. the installers can and do exercise independent judgment over the manner of cutting and piecing together the carpet. We also note that whereas the installer in Arnold's Carpet received weekly payments, the Sears contractors may be paid by the job or whenever they desire. DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE MAURICE M. MILLER, Trial Examiner: Upon a charge filed and duly served, the General Counsel of the National Labor Relations Board caused a Complaint and Notice of Hearing to be issued and served upon the parties herein. (The complainant, Sears, Roebuck and Co. had filed the charge on August 9, 1968; General Counsel's complaint issued August 29. All dates cited within this decision refer to 1968, unless otherwise noted.) Therein, Carpet, Linoleum, Soft Tile and Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO, designated as Respondent Union herein, was charged with the commission of certain unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended. 61 Stat. 136, 73 Stat. 519. Copies of the complaint and notice of hearing were duly served upon the respondent labor organization. Within Respondent Union's duly filed answer, certain factual statements in General Counsel's complaint are conceded; Respondent Union, however, denies the commission of unfair labor practices. Pursuant to notice, a hearing with respect to the issues was held at Denver, Colorado, between October 8 and 11, before me. The General Counsel, Respondent Union, and complainant were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. (One day before the hearing closed, Respondent Union's counsel requested a subpena for 877 General Counsel's witness, Massey, who had previously been excused following the completion of his testimony; counsel then proposed his recall as Respondent Union's witness . While testifying first, in General Counsel's behalf, Massey had proffered certain testimony which a subsequent witness for General Counsel, Harris, partially contradicted; Respondent Union's counsel contended that Massey's further testimony with respect to the particular matters involved thus in contradiction - regardless of whether he maintained a disagreement with General Counsel's subsequent witness or resolved their clearly discrepant testimonial recollections - would be both relevant and material. The following day - when the parties' testimonial presentations were, in all other respects, complete - the witness sought by Respondent Union's counsel had, presumptively, not been served; he did not present himself when called. Respondent Union's counsel, then, requested that the record be kept open and the hearing continued, so that Massey's further testimony, regarding the discrepancy between Harris' recollection and his, could be received at some later date. Following a record colloquy, I concluded that such further testimony - depending upon its conceivable tenor - would either be immaterial or merely cumulative. Counsel's request that the record be kept open and the hearing continued, therefore, was denied. Upon further consideration, I remain persuaded still, that this disposition of counsel's request has worked no prejudice, with respect to Respondent Union's defensive presentation. N.L.R.B. v. Phaostron Instrument and Electronic Company, 344 F.2d 855 (C.A. 9). My ruling is reaffirmed. Since the hearing's close, comprehensive and well-prepared briefs have been received from counsel for the General Counsel and complainant; these have been duly considered. Upon the entire testimonial record, documentary and film evidence received, and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Sears, a New York corporation, maintains several related mercantile establishments both within and near Denver, Colorado, at five locations. Three of these are retail stores. (Customarily, these are designated as the Cherry Creek store, Westland store, and Northglenn store, respectively.) The firm, likewise, maintains a warehouse, with a separate catalogue service location. Respondent Union's course of conduct, challenged herein as violative of the statute, affected Complainant's Cherry Creek store and warehouse merely. In the course and conduct of its business operations, Sears has sold and distributed - through its Cherry Creek store specifically - goods and products valued in excess of $500,000 yearly. Likewise, Sears has purchased, transferred and delivered to its designated store, and warehouse, goods and materials valued in excess of $50,000 yearly, which goods and materials were transported to complainant's store and warehouse directly from states of the United States other than the State of Colorado. Upon these facts, which are conceded to be correct, I find that complainant is now, and has been throughout the period with which this case is concerned, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the statute. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With due regard for those jurisdictional standards which the Board presently applies - see Siemons Mailing Service, 122 NLRB 81, and related cases , I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. II. THE RESPONDENT UNION Carpet, Linoleum , Soft Tile and Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO, designated as Respondent Union within this decision, is, concededly, a labor organization within the meaning of Section 2(5) of the Act, as amended . Throughout the period with which this case is concerned , I find, George Cooney, Respondent Union's financial secretary and business manager , together with Paul Wishard and Richard Geisler, field representatives, have been agents of the designated respondent, functioning on its behalf, within the meaning of Section 2(13) of the Act, as amended. III. THE UNFAIR LABOR PRACTICES A. Issues In connection with Sears' general mercantile operations, the firm sells floor coverings at retail. The floor coverings sold compass soft surface , (carpet), together with hard surface , (linoleum and file), materials. In most cases, the firm sells not only the floor covering materials but likewise, whatever installation services may be required . The customer pays a single price , calculated to cover Sears' selling price for necessary materials purchased together with a labor selling price, plus any charges related to credit terms which the particular customer may request or require . Whenever Sears' floor covering sales compass installation work, responsible Sears representatives finally "assign" such work to various floor covering installers, under circumstances which will be noted. This case derives from a series of picket line confrontations between representatives of Respondent Union , on the one hand , and, on the other, Joe Brase and Eddie Stimac, doing business as Joe and Eddie's Carpet Service Company, together with Sears, through its Cherry Creek store and warehouse specifically . Thereby, so General Counsel contends, the Respondent Union, through its representatives, induced and encouraged various Sears employees - together with individuals working for other persons engaged in commerce - to cease performing services for their respective employers. Further, General Counsel contends that Respondent Union likewise threatened, coerced , and restrained Sears, together with other persons engaged in commerce. Such conduct was undertaken - so General Counsel herein charges - with the unlawful object , in each case, of forcing or requiring Sears to cease doing business with Joe and Eddie' s Carpet Service , and certain other floor covering installers variously designated . Respondent Union denies the statutory violations charged . Further, Respondent Union contends, affirmatively, that all floor covering installers working on Sears' jobs function as company workmen; that Sears fixes and controls their wages and working conditions; that those wages and working conditions are inferior to those generally prevailing throughout the floor covering industry within the Denver metropolitan area; that such wages and working conditions, therefore , jeopardize the prevailing standards for wages, hours, and working conditions set through collective bargaining for Respondent Union's members; that Respondent Union thus has a so -called primary labor dispute with Sears concerning the wages, hours, and working conditions which Complainant has fixed for floor covering installation workers; that Sears is not a neutral or disinterested party with respect to that dispute; and that Respondent Union 's conduct, challenged herein as violative of law , should, therefore, be considered protected and concerted activity, on both statutory and constitutional grounds. B. Facts 1. Preliminary statement How Floor Covering is Sold At Sears' metropolitan Denver area stores , the specific department or division which handles floor covering sales is known as Division 37; such departments or divisions are maintained at the Cherry Creek, Westland, and Northglenn stores. Generally, prospective customers visit the floor covering department of some Sears store; there , they may discuss with a salesman - preliminarily - the type of floor covering they presumptively desire to purchase. The salesman, usually, tries to arrange a visit within the customer's home; when successful, he brings samples calculated to help the customer select whatever floor covering he may desire. Should the customer indicate that a complete job, with installation service, is desired, the salesman will prepare a Floor Covering Estimate and Proposal document; having seen the specific floor area or areas which the customer wishes covered, the salesman will calculate both the price of the carpet or hard surface covering materials required , and estimated material installation charges . Both figures will be noted , within appropriate spaces, on complainant's Estimate and Proposal form. (Six copies of the proposal are normally prepared. The copy titles vary from one copy to another; they correspond with the first copy, however, in most major respects.) When the customer accepts this so-called "bid" proposal for both materials and labor , the salesman will normally draw a diagram of the space or spaces to be covered , within a graph-marked section which the firm's Estimate and Proposal form provides . This drawing will show the rooms to be covered , the type of material required, and - sometimes - where seams should be sewn or laid. Following the document' s preparation - when a final consensus with the customer regarding various details, such as credit terms, has been reached - the completed Estimate and Proposal is signed , in multiple copies, by the parties. The salesman then returns the document, minus the customer's copy - together with a sales check - to Sears' store . The reverse side of the customer's retained copy of the proposal form - so the record shows - contains the following language: INSTALLATION. It is understood that Sears will not install said materials but that by the acceptance of this proposal you authorize Sears to arrange with a contractor licensed where required to make the installation; you authorize Sears ( 1) to issue to said contractor an installation work order with these specifications, (2) to inspect the installation upon completion thereof, and (3) to pay the contractor his CARPET, LINOLEUM, ETC., LOCAL 419 879 charge for such installation upon your execution of a completion certificate establishing that the installation has been satisfactorily completed . You agree to pay to Sears the amount specified herein which will cover the price of said materials and the installation charges. When the customer has proposed a credit purchase, the complete Estimate and Proposal is submitted to Sears' credit department for review . Likewise - whether or not credit terms must be approved - the proposal is submitted to the proper Division Manager ; the latter, then, checks the document' s correctness. When the particular Estimate and Proposal has received the Division Manager's concurrence, the necessary document copies (Nos. 1, 2, 3, and 4 copies) are placed in a job folder , which is normally sent to Sears' warehouse installation department, or some particular store's customer service department, for further processing. (With respect to hard surface floor coverings - linoleum and tile - such processing is centralized at Sears' warehouse , under Installation Manager Donald Chandler's supervision . Chandler is responsible, likewise, for the processing of carpet installation orders received from Sears' Cherry Creek store. Sears' other store Division Managers, McNally at Westland and McGuire at Northglenn , are responsible for processing carpet installation orders which originate at their stores.) The store salesman, generally next places an order for whatever materials may be required . Carpet is procured, generally, from direct sources - that is, the carpet mills - or from Sear' s pool stock warehouses . Linoleum and tile are normally carried in stock at the warehouse. Following a sale's conclusion , the salesman generally gives the customer an approximate period within which the materials may be expected, and notes "three or four days thereafter" as the customer's estimated installation date. Normally, when the goods required have been made available either from Sears ' warehouse or from some direct source - whether hard surface or soft surface materials are involved - the job folder concerned with the particular sale will be removed from a file for further handling, by a representative in Sears' warehouse, or store customer service department . (For present purposes, this description of Sears procedures, related to handling floor covering job orders, will be rather generalized. The process will be detailed further , infra, when the nature of the relationship between the complainant and various floor covering installers must be reviewed.) Sears' installation department or customer service representative , first, communicates with the designated customer, to determine the best, most appropriate time for material installation, consistent with both the customer's needs and the projected availability of required installers . When this determination has been made, the necessary installation work is assigned to some particular installer. Requisite copies of Sears' job documents - designated "General Order to the Contractor" specifically - are replaced in the. job folder which the installer will subsequently procure; these folders are, then , placed within properly designated boxes or slots, depending on the store , for each installer' s subsequent pickup . (The complainant maintains current working relationships with some sixty installers; this number includes those who perform floor covering work. At Sears' warehouse, each of them has a pigeonhole within which their particular job orders are placed. At Westland , such job orders are made available within the store's customer service department .) Most installers, generally , visit the warehouse or particular store within which they do business, daily; at such times, they will customarily pick up their work orders . They then procure the material required for the job which they will be required to perform on any given day, proceed to the jobsite, and perform whatever work may be required. When their particular jobs are completed, the installers concerned - pursuant to their more or less regular practice - submit one copy of complainant's relevant Estimate and Proposal , together with their conventional invoice form , for payment. Hard surface floor covering - linoleum and tile - which Sears sells is normally installed by Frank Harris, doing business as Frank Harris Tile Company, and by Daryl Massey, doing business as Duke's Floor Covering; other linoleum and tile installers who sometimes receive work from Complainant herein , however, include Joseph Mozzicato, John Erpelding , doing business as Sea-Ro Tile Company, and Gerald Fallert, doing business as G. & H. Tile Company . Soft surface floor covering sold from Sears' Westland store has been installed by Joe and Eddie's Carpet Service Company . Before Respondent Union commenced the picketing with which this case is concerned, soft surface coverings sold through Cherry Creek were installed by Crown Carpet Service; since Respondent Union began picketing, however, Cherry Creek installations have been handled by Joe and Eddie's and by Paul E . Clark, d/b/a Clark Carpet Service. So far as the record shows, these constitute the full complement of floor covering installers working out of Sears' warehouse and Cherry Creek store. 2. Respondent Union's picket line Sometime in July 1968, Joe Brase and Eddie Stimac, together with a worker in their hire, Charles Duran, went to a Sears customer's home to perform a repair job. When they reached the customer's residence, Respondent Union' s field representative , Wishard, appeared. Brase and he had a conversation . (Stimac, who was present, testified that the conversation occurred in July . Brase - likewise, first recalled the event as occurring in July, but - during cross-examination - testified that it occurred in the middle of May . Upon this record, I am satisfied that the testimony preponderantly warrants a determination that the conversation took place in July, consistently with Stimac's testimony and Brase's first recollection.) Wishard asked whether Stimac and Brase would consider joining the Union . Brase, however, responded negatively, declaring that they were partners and would be unable to maintain their partnership - consistently with their understanding of Respondent Union 's relevant rules - unless they had two or more employees. Wishard then left, but returned shortly thereafter . About 15 minutes later, Field Representative Geisler joined him, bringing some picket signs . Wishard, then , requested Brase to state what his "outfit" was called. Brase replied that he could not do so; Wishard, however , declared that his, (Brase's), name was known . Respondent Union's field representative then printed the name "Joe Brase" within blank spaces on the picket signs which Giesler had brought; both men commenced picketing. Joe and Eddie' s repair job took approximately 45 minutes to complete; within that period, Wishard and Giesler carried their picket signs on the sidewalk, before the customer's home, for approximately 30 minutes. (Respondent Union , through its counsel, has conceded that a picket sign was carried near the customer's residence. Counsel declared, however , that the sign which was carried contained the name "Sears, 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roebuck and Co." but did not contain Brase's name, that of his partner, or their partnership designation. Respondent Union has produced no testimonial support , for its counsel's declaration regarding the business enterprise designated; neither Wishard nor Giesler was called to testify. Brase's testimony regarding the picket sign's language, therefore, stands without record contradiction; that testimony is credited.) When their job was completed, Brase, Stimac, and Duran went to a nearby coffee shop. They were joined, there, by Wishard and Giesler; Wishard renewed their earlier conversation . He declared that Joe and Eddie's Carpet Service was rumored to be doing Sears' work, that they were non union , that Respondent Union did not like it, and that "they" wanted Duran and both partners to join. He also reported that Putsche of Crown Carpet Service had complained, and that "they" had to "take care or' the boys . Brase, Stimac and Duran, however, joined in telling Wishard that they were not interested in becoming Union members. On August 7 and 8, thereafter, Respondent Union's representatives picketed Sears' Cherry Creek store. The first day, they picketed on the public sidewalk, adjacent to the store's south entrance, between 9:30 a.m . and 12:30 p.m.; on August 8, Respondent Union picketed between 11:30 a.m. and 1 p.m. before the same store entrance. Since August 8, further - and continuing to date - Respondent Union has picketed Sears' warehouse. (This picketing has, likewise, been conducted on public property except for 3 or 4 days at the commencement of the picket line, when it was maintained on Sears' property. The pickets, however, moved when requested.) The sidewalk picketing at Sears' Cherry Creek store was conducted by two pickets; near the warehouse, one or two persons have carried picket signs at various times. The signs which were carried before the Cherry Creek store, and which are still being carried at Sears' warehouse read as follows: Front FLOOR COVERING SOLD BY SEARS ROEBUCK AND CO. IS INSTALLED BY UNDERPAID WORKERS CARPET & LINOLEUM LAYERS LOCAL 419 Reverse NOTICE FOR TOP QUALITY WORK PATRONIZE FIRMS EMPLOYING UNION CARPET & LINOLEUM LAYERS The warehouse picketing is currently being conducted outside the only gate which provides warehouse access, Sears' entire property being enclosed by a chain link fence. The picketing, generally, compasses the hours from 8 to 5 o'clock, which constitute the warehouse's working hours. Lawrence Richardson, Sears' warehouse personnel manager and operating superintendent testified - without challenge or record contradiction - that some warehouse deliveries have been delayed, or have not been made, as a result of Respondent Union's picketing; he declared that Sears has been so advised by dispatchers for various motor carriers. Motion pictures taken by Richardson on August 9th, proffered for the record, show trucks of major motor carriers approaching Respondent Union's picket line outside the warehouse, turning around, and driving away. Richardson's credible testimony warrants a determination, further, that service organizations such as the telephone company, have, upon occasion, refused to honor requests to perform work at Sears' warehouse. 3. The relationship between Sears and its floor covering installers With matters in this posture, we confront the principal question litigated herein. General Counsel contends that Respondent Union's picket lines - with relation to Sears' premises specifically - violated and continue to violate the statute, because they derive from a dispute with respect to which Sears must be considered a neutral secondary employer; this Board is solicited to conclude .that Complainant herein, contrary to Respondent Union's contention, cannot realistically be considered the specific primary "employer" with whom respondent labor organization maintains its dispute. (Concededly, Section 8(bX4XB) does not prohibit a labor organization's primary economic action - for example, picketing - against business enterprises, in furtherance of labor disputes which it may have with them. See Denver Building and Construction Trades Council 341 U.S. 675. The section does, however, proscribe conduct calculated to bring pressure upon some primary employer, through other business enterprises generally described as so-called "secondary" employers, for the purpose of furthering such disputes.) When Respondent Union herein characterizes its dispute with Sears as primary, so the argument runs, such mere "labeling" does not, ipso facto, permit its escape from Section 8(b)(4XB)'s thrust. As General Counsel notes: If floor covering installers within the Denver metropolitan area can be considered significantly free from Sears' control - during the course of their business dealings with that firm - then Respondent Union's quarrel must lie directly with those installers, not with Complainant herein; necessarily, therefore, Respondent Union's picketing of Sears, calculated to further that quarrel, must be considered subject to statutory proscription. Thus, General Counsel contends, herein, that various floor covering installers, with whom this case is concerned, function freely without that degree of Sears' control which would make complainant their "employer" within Section 8(b)(4)'s meaning. More particularly, General Counsel declares, within his brief, that: A clear preponderance of the evidence shows that the installers are independent contractors and not employees within the meaning of the Act, and, further, that there is insufficient control of the operations of the CARPET, LINOLEUM, ETC., LOCAL 419 881 contractors by Sears to link the contractors to Sears in such a fashion that Sears may be called an "ally" of the contractors in their dispute with the Respondent [Union]. The contention presents this case 's basic question. We must, therefore , proceed to consider both the nature and scope of Sears' challenged relationship with floor covering installers, herein . To that question, this decision now turns. a. The installers Joe and Eddie's Carpet Service is a partnership, consisting of Joe Brase and Eddie Stimac, previously noted ; they have one employee , Charles Duran. Duke Massey does business as a sole proprietorship known as Duke's Floor Covering; Frank Harris, likewise, functions as a sole proprietor , under the Frank Harris Tile Company name . Paul Clark, also a sole proprietor, does business as Clark Carpet Service; he has functioned under various similar names for some ten years . Clark has two employees, currently. These enterprises - all of them - do business from the homes of their owners , designated . All have, however, made substantial investments in their several businesses, through the purchase of one or more trucks and tools related to their trade. (Their trucks , so far as the record shows, carry no identification calculated to designate them as belonging either to Sears, or their registered owners. Sears does not tell its contract installers what type of trucks to purchase, nor does Complainant inspect them, or require that they be inspected .) They all carry their own contractor's liability insurance . Consistently with relevant Colorado law - presumably - Joe and Eddie, particularly, do not maintain workmen 's compensation coverage, or pay State unemployment insurance taxes, for themselves or their workmen . Joe and Eddie, however, pay social security taxes for their partnership employee, and withhold State and Federal income taxes from his wages, which are paid from partnership funds. (The employee, Charles Duran , is paid weekly; he receives an hourly rate, plus overtime pay when he works more than 8 hours per day, together with a paid vacation and six paid holidays.) Clark's two employees, likewise, receive an hourly wage. They are covered by the State workmen's compensation statute, but have no unemployment compensation coverage . Taxes and social security payments are, likewise , withheld from their paychecks. Neither installers, nor their workmen , wear any kind of Sears, or other, uniform . All maintain their own business bank accounts. Sears has never checked - nor does it reserve the right to check - their books and records. So far as the record shows, Sears has never provided installation training . Nor has complainant ever loaned these floor covering installers money for the purpose of starting their several businesses, maintaining such businesses, purchasing tools, or supplementing their working capital. b. Their relationship with Sears distinguished from that of regular Sears employees Unlike regular Sears workers, installers are not required to take physical examinations before being engaged ; nor must they submit to other personnel interviews, or mental or psychological testing, prior to performing services . They are engaged directly through Sears' warehouse installation department manager, or store managers, pursuant to contract, and not through Complainant's personnel department. Further, unlike Sears' regular employees, they receive none of the fringe benefits - such as profit sharing, purchase discounts, paid vacations, paid holidays, hospitalization and life insurance - which complainant offers. (Together with numerous other policy favored persons and institutions - such as firemen, policemen, delivery company workers, store doctors, churches, schools, and charitable institutions - installers may receive a 10 percent discount pass when making retail purchases, on a limited one-day basis, from store managers.) They do not report at set times daily, for work . Finally, unlike Sears regular workers - whose relationship with Complainant is governed by the firm's personnel manual - the relationship between Sears and these floor covering installers is governed by contract, as previously noted. Within these contracts, the signatory installers are designated "contractors" throughout . The contracts begin with a recitation that Complainant herein "does not install certain materials" which it sells, together with a recitation that customers purchasing such materials may "desire to arrange for installation thereof" by some qualified contractor. (Floor covering installers currently utilized by Sears may be privy to contracts varying slightly both in format and language . Between February 1965 and April 1967, complainant had contractors sign a contract form which was subsequently modified , during the latter month. The modifications , within my view, merit characterization as merely technical. Harris, Massey and Crown Carpet currently perform their services for complainant pursuant to January, 1967, contracts, drafted and signed on Sears' earlier contract form . Joe and Eddie's Carpet service, though currently functioning pursuant to a contract signed during August 1967, then executed Sears' prior contract draft. Paul Clark, whose contractural privity with Sears presumably dates from August 14, 1968 , signed a revised form . Since the two forms, however, reveal no significant differences, references to contractual language herein - when considered necessary - will be confined to that found in complainant's current contract form.) The contractor represents his willingness and desire to perform installation work "but only as an independent contractor and not as an employee" with respect to Complainant herein . The contractor agrees to accept jobs "tendered" within a designated territory, which he can satisfactorily perform . Further, the Contractor engages that he will "perform each job in a neat and workmanlike manner" consistently with "established trade practices" within the area, relevant laws, rules , regulations, ordinances or other lawful requirements, and Sears' job specifications. Likewise: Contractor agrees that upon receiving a job for installation from Sears, Contractor shall first determine whether the installation can be satisfactorily completed. If Contractor determines that he cannot complete the job satisfactorily, Contractor will notify Sears promptly and thereupon the tender of the job shall be deemed to be withdrawn from Contractor. Installers guarantee that every job shall be free from defects in workmanship, for a period of 1 year from its completion . If defects in workmanship nevertheless appear, the installers contract to remedy such defects promptly; should they fail to do so, Sears or the customer is given the right to have the defects corrected at the installer's expense . Sears is given the right to hold and use 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any moneys then or thereafter due the Contractor as reimbursement for any sums so paid. The contract, inter alia, mentions a so-called Schedule of Contractor's Charges calculated to fix Contractor's installation charges; Sears agrees that Contractors will be paid "on behalf of each of Sears customers" whatever installation charge may be specified within the Contractor's work order, (1) upon receipt of the Contractor's invoice following the job's completion, (2) following the Contractor's execution of certain necessary documents; and (3) upon Sears' concurrence that the job has been "satisfactorily and properly" completed. In that connection: The parties further agree that Contractor has the full right to determine, and the responsibility for, the method, manner and control of the work to be performed as specified in the written Proposal or the General Order To The Contractor, and Contractor will employ sufficient competent adult workmen to complete each job promptly and satisfactorily. The Contractor is granted the sole and exclusive right to hire, direct, supervise and discharge any workmen he may employ, subject only to Sears' right "as agent for [the] customer" to request such a workman's withdrawal should any customer report himself not satisfied with the workmanship or progress of any job. The Contractor assumes full responsibility for all contributions, taxes and assessments on payrolls pursuant to applicable Federal, State, and local laws; he further agrees to protect, defend, hold harmless and indemnify Sears, together with its agents and employees, from and against claims, demands, actions, liabilities, losses and expenses suffered by any person, which arise from or may be considered in any way related to the Contractor's activities, work or services. The contract is negotiated for 1 year, subject to annual renewal thereafter. Both Sears and the Contractor, however, have rights of termination, during the contract's term or extended term, upon at least 30 days' prior written notice. c. How installers receive their work When a sale is consummated, the salesman's "Floor Covering Estimate and Proposal" does not state the date installation will take place. When necessary materials are received at complainant's store or warehouse, however, some Sears employee (whether it be someone in the designated warehouse office, or someone within the concerned store's customer service department) communicates with the customer to arrange a convenient installation date. This being done, two copies of the firm's Estimate and Proposal, which the installer designated to do the work must receive, are put in boxes or pigeonholes, from which he may subsequently procure them. The installer, when he comes to Sears, proceeds to his box, picks up the documents noted - which constitute his so-called "work order" for the job - procures the materials required, and goes on his way, presumably to perform whatever work may have been tendered. Credible testimony proffered by various installers - without contradiction - reveals some variant practice in this connection. Sears has established no fixed reporting requirements; floor covering installers are not required to report at specific times, or even at all. Thus - with respect to Joe and Eddie's Carpet Service particularly - the record reveals: That the partners generally visit Sears' Westland Store daily, Mondays excepted; that, sometimes, they may perform work for other customers first, and then visit complainant's store; that they do not, therefore, report at particular times; that they normally work about eight hours per day; that they do not themselves, receive overtime compensation from Sears or other customers should they work more than eight hours; but that they pay their own workman overtime. And Massey's comparable testimony - which stands without contradiction - warrants determinations: That he tries to pick up all of his assignments on Monday, for the coming week; that he normally works, thereafter, about thirty hours per week (on all his work), making some $10 per hour; that, when he does perform Sears' work, he normally stops to pick up his required materials between 8:30 and 9:00 o'clock, drinks coffee until 9:30 or 10 o'clock, then goes to work; that there are days when he performs Sears' work on which he has no contact with persons at Sears' premises. (None of the floor covering installers punch a time-clock. So far as the record shows, should one not wish to work, he flouts no duty.) Harris, so he testified, works for Sears between 25-30 hours per week; he averages $60 per day for each day's work. He does not feel required to visit Sears daily; when he does so, he usually reaches the warehouse at 9:30 a.m. approximately. When they do report, the floor covering installers - as previously noted - pick up their work folders, and then procure the materials required for their installations. Such materials are procured directly, either at Sears' store dock or warehouse; the Complainant does not deliver floor covering, neither to the customer's jobsite or residence, nor to contractors. With respect to floor covering materials pickups, further, the record shows that Joe and Eddie locate, pick up and load their own materials at Sears' dock. They will sometimes pick up several days' work at one time; materials thus procured may be stored in their garages, or left on their truck. They have left Sears' material in their garages, sometimes, for a couple of weeks. (When supplied by Sears, neither hard surface materials nor carpet materials are precut or presewn in any fashion. Carpet materials are received by these installation contractors in rolls which approximate the correct square yardage required for the particular job. All cutting and sewing is done within the customer's home.) Sears does not supply any material to carpet layers save the carpet and pad materials which Complainant sells. When linoleum or tile is sold, Sears likewise sells the paste and metal fixtures required for installation; the hard surface material layer, however, supplies any required underlayment or base. Sears' job tenders to not take into account such factors as where the material layers live; assignments are made on the basis of the installer's availability. In that connection, further, the record shows that Joe and Eddie's Carpet Service does not work for Sears on Mondays; they work a Tuesday through Friday week. Comparably, Massey only works 3 days per week for Sears, since he works for another major customer, J. C. Penney's, the other 2 days. (All Sears' floor covering contractors mentioned in the present record have other customers within the Denver metropolitan area. Their charges may vary, as between customers, depending on their work. They can and do schedule significant amounts of work for their other customers on the same days they do Sears' work. When this is done, they may handle their several jobs in any order they choose, and need not perform Sears' work first. However, should a Sears' customer be promised some particular time of day for his work, the installers will try to meet that commitment.) CARPET, LINOLEUM, ETC., LOCAL 419 883 Normally, the person or department responsible for Sears' job tenders - with regard to floor covering installation work - takes into account whatever . work load limitations particular installers may have set . Stating the matter otherwise, these installers are tendered jobs, daily, which will not exceed their own, previously stated, limitations. Thus, Joe and Eddie's Carpet Service, normally will be given jobs which require them to lay no more than roughly 100-150 yards per day. Massey and Harris - within the field of hard surface floor coverings - do about $60 worth of work per day; this normally represents about five-six hours of work. Joe and Eddie have, sometimes, further limited the amount of work which they will perform on a given day by telling the Sears' representative responsible for assignments to schedule only so much, or not to schedule any more jobs for that day than she already has. Sears -- as far as the record shows - complies. Additionally, Joe and Eddie may determine, themselves, which of them will perform particular jobs tendered. d. How the work is performed When floor covering materials have been procured, the contractor concerned may proceed to the customer's home, or call the customer to arrange a time which is convenient for him . He may likewise take the material home and leave it there, until he is ready to perform the work. Sears does not tell installers what customer to visit first, how early to arrive, or how late to stay; nor are directions given as to how the customer's home may be reached. The record shows - in this connection - that Joe and Eddie may, sometimes call Sears' customers and reschedule work with them, without notice to Complainant's store or warehouse. Likewise, they may make independent arrangements to come back to a customer's house the following day, should they be unable to reach a job or complete a job within a single day - all of this without notice to Sears' customer service or installation departments. Massey, seemingly, follows a different procedure. Whenever he cannot reach a particular Sears' customer's job, he will call Sears and advise them, directly, regarding the job' s postponement. Installers receive no directions from Sears with regard to how floor covering should be installed. They receive nothing more, with regard to particular jobs, than the salesman's rough drawn delineation of the specific room or living area within the customer's home to be covered. (The salesman's prepared Estimate and Proposal form may or may not have such a diagram. In any event, whatever diagram there may be is not drawn to scale. Rather than a specific direction to installers, with regard to how floor covering should be laid, it seemingly does little more than help the salesman in consummating the sale.) Sometimes, with respect. to carpet installations, the diagram will show where seams are to be located ; carpet layers, however, are not required to follow the drawing. They often ignore it, and put seams elsewhere, when, within their judgment, that would make for a better job. They may also modify the specified job in various other respects. When this is done - so far as Joe and Eddie is concerned - no notice is given Complainant herein, nor is prior clearance requested. Though the contracts between Sears and various floor covering craftsmen require the latter to refrain from doing extra work for Sears' customers - such as taking up old carpet and relaying it within another room - without written authorization, the practice of most installers is clearly contrary. Joe Brase testified regarding two such instances, for which the customer paid directly; his testimony was corroborated, generally, by his partner. (Massey, when queried in this connection, testified that he tells the customer to call a Sears salesman, because the customer is usually looking for a cut rate.) Harris, so his testimony shows, does such extra work occasionally; sometimes he even sells the customer material for such extra work from his own stock. Paul Clark - though he has only worked for Sears since August 1968, has performed work for Sears customers, beyond that specified on Sears' job proposal, three times. Sears, so far as the record shows, gets no notice, and takes no reprisals in such situations; nor has it promulgated a flat prohibition. Upon occasion, when busy, Joe and Eddie's Carpet Service has subcontracted Sears work to another person; this, without Sears' prior knowledge. That person has been paid with partnership funds. Harris, likewise, has had Massey perform Sears' work when he has been unable to do so. Complainant, on this occasion, likewise received no notice; Harris sent in the bill, and thereafter paid Massey himself. Harris has, likewise, negotiated directly with a Sears' customer for installation work, when the customer had made no arrangements with Sears , when his material was purchased, for such work. Floor covering installers are responsible for repairing - without further charge - any of their work which may prove defective; likewise, they are responsible for any damage they may do. Should they be notified regarding a customer's complaint with respect to their work, however, they may normally schedule the required repairs at their convenience. (Sears' current contract form grants the firm the right to condition payment of the contractor's installation charge "upon inspection by and approval of Sears that the job has been satisfactorily and properly completed" consistently with the salesman's Estimate and Proposal form. So far as the record shows, however, Sears' right of inspection is seldom exercised. Whether a complaint requires inspection will be determined as a matter of business judgment. Defective work, normally, will be brought to the craftsman's attention through customer complaints, which may be made either through Sears, which relays them, or directly.) Massey, so his testimony shows, tries to get any necessary repair work done within a couple of weeks; Joe and Eddie's Carpet Service try to get theirs done sooner. Should installers be called upon to perform repairs on someone else's work, or to replace defective materials, they charge their regular prices. For such supplementary work, however, prices are not predetermined. Massey, so his testimony shows, charges prices which he, himself, fixes for repair or replacement jobs; he has never had a bill rejected under such circumstances. Floor covering installers have the contractual right to reject any work which Sears has tendered; they have, upon numerous occasions, exercised that right following their first visit to the prospective customer's home. Such rejections may derive from various considerations; these may compass the craftsman's belief that the job cannot be performed properly as described within the firm's Estimate and Proposal form, or his belief that he cannot make money on the job. Thus, for example: Joe Brase testified - with general corroboration - that he refused a particular job in May 1968, because he did not feel that the way the customer and the Sears' salesmen wanted the job performed was the proper way. His testimony shows 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he left the job, and that he returned only after the customer had called Sears and concurred with Brase's recommendation regarding the way the work should be done. Clark - so the record shows - has rejected Sears' work twice since August 14, 1968. Massey, likewise testified that he has rejected work several times. Stimac's testimony reveals a rejection , with respect to part of a proffered job, because he did not believe he could do a good job, consistently with Sears' specifications. e. How installers are paid When Sears has - within the recent past - undertaken to establish a working relationship with some particular floor covering installer, complainant's warehouse installation department manager, or some appropriate person within Sears' Denver managerial hierarchy, has negotiated with that "contractor" regarding a so-called price list which details the prices to be charged and paid for installation work . General Counsel, within his brief, notes - correctly - that, within the present record , there was much divergent testimony concerning the precise way various prices charged to Sears by different installers originated . However, that testimony - within my view - need not be recapitulated in detail. By way of summary, I find merit in General Counsel's comment, within his brief, with respect thereto: The critical thread which runs throughout the testimony of those involved in the determination of the price lists is this - the greater portion of the prices currently in effect were proposed and initiated by the installers . Further, in those situations where prices were initiated by Sears, the installers involved engaged in meaningful negotiation as to the prices. For example, Paul Clark' s testimony shows that he initiated his first contract with Sears , seeking installation work. Clark, when he discussed the possibility of procuring installation work with Chandler, Sears' warehouse installation department manager, proposed or "bid" certain prices for various types of work which were acceptable to the latter. The prospective contractor, likewise told Chandler that he felt his proposed prices would subsequently have to be revised upward ; Chandler, so I find, concurred. Massey and Harris. so the record shows, together presented a revised price list , sometime early during 1968; they sought Chandler's concurrence regarding a proposed increase in the various rates which they were being paid. Their testimony, regarding the precise form of the list which they presented , was contradictory . However, my record review has persuaded me that - regardless of the form which their proposal may have taken - these hard surface floor covering craftsmen themselves initiated the suggestions which Chandler subsequently accepted, save for certain fixture moving charges. Testimony which Division Manager McNally, Brase, and Stimac proffered, likewise, supports such a determination , relative to their negotiations. I find that Brase and Stimac, too, were initiators with respect to prices. With respect to certain recent 1967 negotiations between the Crown Carpet Company, and another carpet laying contractor with whom Sears no longer deals, on the one hand, and Sears' Area Group Manager Donald Jansen, on the other, the record does show that Jansen, rather than the designated installers , was responsible for broaching discussions looking toward a change to lower base "per square yard" prices. However, the craftsmen - so I find - presented a written counterproposal, nevertheless, for further price modifications calculated to cover "special" contingencies, which , within their view, would more precisely and equitably reflect the complexity of some of the work which they were doing; with respect to these installer proposals , as well as Sears' lower base price proposal, consensus was finally reached. The price lists drafted, pursuant to these negotiations, consistently set different rates of installers ' compensation (Sears' cost) for various types of work - which may present varying degrees of difficulty and require varying degrees of skill. (The record, further, warrants a determination that - despite these negotiated prices - situations may still develop with respect to which new negotiations are required, because previously set price lists may not cover some specific contingency or because the installers may refuse to perform work, judged to be more complex and difficult , for previously negotiated prices.) These price lists provide the basis for those installation charges which may be noted on Sears' Floor Covering Estimate and Proposal forms ; store salesmen compute their customers' installation charges from price lists which, in turn, derive from the prices which installers charge the complainant herein . When Sears' customer service representatives or warehouse installation department personnel can readily compute - from their salesman's Estimate and Proposal form - what the installation contractor's charge should or will be, that figure will be calculated, and proper notations will be made, wherever necessary, within the proper spaces on the contractor's job documents. Should the designated Sears' representative be unable to determine a proper contractor's charge, these documents will be forwarded within complainant's job folder with no stated charge shown. (While the contractor's total charge has generally been entered on the work orders given the lineolum and tile layers, through Sears' warehouse, the space for such notations has frequently been left blank on those issued Joe and Eddie by Sears' Westland store.) The record, however, clearly warrants a determination that the total contractor's price noted by Sears does not bind the floor covering installers concerned . These "contractors" are the final judges with respect to their own final charges. Those who testified , herein, declared - consistently - that they have changed Sears' total price notation whenever it did not, for any reason, correctly reflect the work performed. Division Manager McNally of Sears' Westland store conceded that Joe and Eddie have done this many times, with or without explanations. When a job is completed and the particular craftsman concerned desires to be paid, he sends complainant herein - wherever he originally picked up his work documents - the proper copy of Sears' Estimate and Proposal form previously received (No. 4 copy), together with a Sears originated invoice form . (These documents may be turned in whenever the installer finishes his job; they may, however, be retained and accumulated before submission, for a week , or as long as the installer desires.) If Sears' Proposal form (No. 2 copy) did not contain a notation stating the contractor's charge, he will make the necessary entry, based on his previously negotiated price list. Whenever he has performed extra work, directly related to whatever specific installations may have been directed, he may add charges for such work to the total sum which Sears' representative may previously have entered; whenever the total charge computed by the Sears' representative has been misfigured , the contractor may note a correction. Such changes are, generally, made without Sears' authorization, though the contractor may CARPET, LINOLEUM, ETC., LOCAL 419 885 have given Complainant notice of his intention to make a change, where large sums are concerned . In all three situations, Sears regularly changes its records , and pays the installer whatever sum he, claims is owed , for the job or jobs covered. So far as the record shows , no bill ever submitted for a job or jobs, with respect to which the prices were first computed or recomputed by the contractor, has ever been rejected. When paying floor covering installers, Sears withholds no sums to cover social security or Federal income taxes; nor is there any percentage withheld to cover possible installation mistakes. C. Conclusions 1. The installers are independent contractors The legal standard pursuant to which a determination must be made as to whether the floor covering installers, herein, must be considered independent contractors or employees involves the so-called "right to control" test. Cf. Local No. 2265, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Carpet Center, Inc.), 170 NLRB No. 93. The test has been declared relevant and proper, with judicial concurrence; it has been utilized many times. See, e .g., Pure Seal Dairy Company, 135 NLRB 76, 79. Within the case last cited, the Board formulated this legal standard as follows: In determining the status of persons alleged to be independent contractors, the Act requires the application of the "right to control" test. Where the person for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished , the relationship is one of employment. On the other hand, where control is reserved only as to the result sought, the relationship is that of independent contractor . The resolution of this question depends upon the facts of each case and no one factor is determinative. [Emphasis supplied.] When the facts of the present case are reviewed, with reference to this legal standard, their clear preponderance shows - within my view - that Sears does not retain the right to control the manner and means by which floor coverings which it sells will be installed . Rather, control is reserved merely with respect to the result sought. The floor covering craftsmen concerned herein, therefore, must be considered independent contractors . The Board's previously noted Carpet Center decision - which confirmed a Trial Examiner's determination , finding carpet installation workers to be employees of the Respondent company therein designated - specified some six facets of the particular company-installer relationship, therein found , which the Trial Examiner and Btrd considered determinative . No more than one of these listed, however, can be considered characteristic of the company-installer relationship which this record reveals. (The Trial Examiner's Carpet Center decision refers to the fact that Respondent company therein, should it find the work of particular installers displeasing in any respect, may discipline or get rid of them by withholding future assignments. Sears, with its installation contracts, likewise maintains such a right . I would consider the designated right consistent with either an "independent contractor" or "employee" determination .) Within the Trial Examiner's decision noted , some 10 further characteristics which mark Carpet Center's relationship with its carpet installation workers are mentioned. Practically none of these, however, can be considered descriptive of Sears' relationship with the floor covering contractors which are herein concerned . (First, the Trial Examiner's Carpet Center decision, among other things, notes that the manager of Respondent company therein, when he assigns work to particular installers, takes into account both the number of yards to be laid, and where the installers live, trying to give them work near their homes. Sears' jot. tenders, directed to particular carpet layers, likewise, take into account the total number of yards to be laid. The present record , however, shows that those job assignment limitations which Sears will recognize derive from directives which the concerned installers have themselves laid down, rather than from Complainant's departmental policies. Further, Sears' job tenders are proffered without regard for the particular contractor's geographical convenience . Secondly, while Sears' contractors - like Carpet Center's workmen - are themselves required to load materials they may need for various jobs, this record warrants no determination that they are normally permitted or required to search for such materials, personally, within Sears' warehouse or departmental storage facilities. Thirdly, contractors are presumably requested or required - like Carpet Center's workmen - to give Sears notice, whenever they will be unavailable for work because of vacations, sickness, or for some other reasons; nothing in the present record, however, warrants a determination that Sears maintains a definitive rule or regulation, regarding the time limits before which such prior notice must be given . There is some record suggestion that such notices may , sometimes, not be given.) Within his decision, the Board's Carpet Center Trial Examiner found - with respect to that firm's installation craftsman - that "certain aspects of their relationship with the company" would, despite his contrary conclusion, tend to support a possible independent contractor determination . My reading of the decision noted reveals some five "aspects" characteristic of the relationship therein considered which might, arguably, have suggested such a conclusion . The present record, inter alia, reveals these selfsame five "aspects" likewise operative herein, coupled with others, when we consider the nature and scope of Sears' relationship with its various Denver floor covering installation contractors. Such considerations, within my view , clearly require a determination - contrary to Respondent Union's suggestion herein - that Carpet Center presents a situation factually distinguishable, from that which the present record reveals, regarding the nature of the relationship which Respondent Union herein, through its challenged course of conduct , presumably sought to modify. This Board has previously declared that its resolution of so-called "independent contractor" questions, through what has been designated the "right to control" test, will depend upon the facts of each case, with no single factor considered determinative . The trier of fact, therefore, finds no necessity, herein, presently to recapitulate, seriatim, those several factors marking Sears' relationship with various floor covering installation contractors which dictate its final characterization as one falling within the statutory "doing business" concept. Rather, I find it sufficient to declare, broadly that, their relationship - when considered in totality as detailed within the present record - merits a characterization consistent with General Counsel' s contention herein . (Previously, within this decision, passing references have been made to certain $86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD partially contradictory testimony proffered by General Counsel' s witnesses, regarding the precise format of their suggested price list for linoleum and tile installation work, when they presented that list to Sears' warehouse installation department manager for negotiation . The first witness, Massey, testified that Chandler had been presented with proposals regarding the compensation which Harris and he wished to receive for various types of work related to linoleum and tile laying . Thereafter, Harris testified - differently-that Chandler was given proposals regarding the sums which Sears' customers should be charged for various tasks connected with linoleum and tile installation work; this proposal, so Harris declared, was drafted because of their presumption that Sears would, finally , determine their compensation by applying a predetermined percentage figure to whatever sums Complainant's customers may have been charged for installation services . While testifying, Harris produced a purported copy of the document which Chandler had been given; that document supports his recollection , since it shows proposed "selling" prices for installation work done in connection with Sears' linoleum and tile sales. With matters in this posture, Harris' testimony regarding the proposal's format - which Chandler substantially corroborated - merits credence . Having reached this conclusion , however, I reject Respondent Union's presumptively consequent contention that such a proposal, dealing with Sears' selling prices, suggests a consensus - shared by Chandler on the one hand, and both hard surface contractors on the other - that their price list negotiations were really employer-employee discussions. I note, in this connection , that the proposed price list - despite its form - was initiated by these installers; both were seeking higher compensation. Further, I note that Chandler's final response - with respect to which both Massey and Harris later concurred - was prepared to show Sears' proposed linoleum and tile work costs; rather than Sears' proposed customer charges, it listed the specific sums which Massey and Harris would, thereafter, receive. And, in any event , whether or not my conclusion is considered sound, these Chandler-Massey- Harris negotiations, within my view, possess no compelling or crucial significance . When considered in perspective, within the context which the complete record provides, such negotiations can hardly be considered , themselves, sufficiently substantial or significant to warrant a rejection of General Counsel' s position .) Counsel for Respondent Union did, finally, produce a document culled from Sears' file wherein Complainant's various contractors were, substantially, directed to procure some designated insurance coverage, some sort of Federal Account number, and to have their contracts notarized . Chandler's decision to promulgate these directives , however cannot - with due regard for the whole record - be considered sufficient to dictate a conclusion that he was addressing employees, or to vitiate my determination that Sears' floor covering installers held "independent contractor" status. These installers, then , must be considered independent businessmen . And since Sears' concern, with respect to their work, is limited merely to such work's final result, Complainant's business relationship with them cannot be considered sufficiently close to destroy its neutrality. Complainant's counsel, within his brief, suggests - in this connection - that: It is important in analyzing this record to understand that the installation of floor covering is not an integrated part of our business and in arranging for the installation Sears has not delegated the function normally performed, nor ever performed, by regular Sears employees; the customer is expressly told that Sears will not do the installation . . . In our situation the fact that Sears will find an installer for the customer is merely an aid in selling the merchandise; Sears has not replaced an integrated employee operation with an outside contractor. These factual contentions, within my view, have record support; I concur. Further, nothing within the record would warrant a determination that Sears claims any power or right to determine labor relations policy for or with these floor covering installation contractors. Necessarily, therefore, Respondent Union's grievance could only be resolved by them, not by Complainant herein; I so find. Under no circumstances can these floor covering firms be considered "allies" with respect to Sears, concerning a dispute which the latter firm could resolve. Nor can the reverse be considered true. Respondent Union's contrary contention must be rejected. 2. Respondent Union's conduct violates the statute Once a determination has been made that the various carpet, linoleum and tile layers whom Sears utilized for floor covering installation work must be considered independent contractors, there can be no doubt that Respondent Union herein - determined to procure a settlement of differences with Joe and Eddie's Carpet Service particularly - relied upon statutorily proscribed means to pursue objectives statutorily forbidden. I so find. Regarding this portion of General Counsel's case, Complainant's counsel, within his brief, notes: . that the Respondent attempted to make [Joe Brase, Eddie Stimac and Charles Duran] become members; that they refused to join; that upon their refusal to join they were picketed; that, when the picketing failed to have any effect, the Respondent began and continued to picket Sears. The object of the picketing at Sears can be and is only to force Sears to stop doing business with the installers until they join the Union. This trier of fact finds counsel's statement both factually correct, and legally persuasive. The Supreme Court has clearly held that peaceful picketing - comparable with Respondent Union's picketing with which this case is concerned constitutes "inducement" and "encouragement" statutorily proscribed. N.L.R.B. v. Electrical Workers, 341 U.S. 694, 701-702. Such a conclusion with respect to this case may be - indeed must be - considered warranted even though Respondent Union's picket lines, on some occasions, may not have been successful. N.L.R.B. v. Denver Building Trades Council, 193 F.2d 421 (C.A. 10). Respondent Union's pickets have, however, had a discernable effect. True, the record may show nothing reliable or probative regarding their success, or lack of success, when they picketed Joe and Eddie's Carpet Service, specifically - nor may it show persuasively what success, if any, Respondent Union had when it picketed Sears' Cherry Creek store. With` respect to Sears' warehouse, however, Respondent Union's picket line clearly brought results. Deliveries were delayed, or were not made. Such a record showing warrants a determination that Respondent Union's picket line was - despite the mild language found on its picket signs - reasonably calculated to induce or encourage individuals, CARPET, LINOLEUM, ETC., LOCAL 419 887 employed by persons or business enterprises engaged in commerce, to refuse, in the course of their employment to transport , or otherwise handle or work on goods, articles, materials, or commodities, or to perform services. I so find . Further, Respondent Union' s picket line - to the extent that it was successful - effectively threatened, coerced , and restrained Sears directly. Respondent Union' s proscribed object, likewise, must be considered manifest . The Union's original purpose was shown when Joe and Eddie 's Carpet Service was picketed, while the partners and their workman were performing work within a customer's home . When such picketing produced no tangible result, Respondent Union commenced its picketing of Complainant herein. As General Counsel notes - within his brief - the only conclusion which can properly be drawn when a labor organization pickets a commercial firm "doing business" with some independent contractor , with whom that labor organization has a dispute, must be the conclusion that at least "an" object of respondent labor organization's picket line is the forced cessation of that business relationship. I so find. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union and its designated representatives set forth in Section III, above - since they occurred in connection with the business operations of complainant herein previously noted - have had a close, intimate, and substantial relation to trade, traffic, and commerce among the several States . Absent correction they would tend to lead, and in this instance have led, to labor disputes burdening and obstructing commerce , and the free flow- of commerce. V. THE REMEDY Since it has been found that Respondent Union and its representatives did engage, and continue to engage, in certain unfair labor practices, it will be recommended that they cease and desist therefrom , and - take certain affirmative action , including the posting of appropriate notices, designed to effectuate the policies of the Act, as amended. In the light of these findings of fact , and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Sears, Roebuck and Co . is an employer within the meaning of Section 2(2) of the Act , engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Joe Brase and Eddie Stimac, d/b/a Joe and Eddie's Carpet Service Company; Crown Carpet, Inc.; Paul E. Clark, d/b/a Clark Carpet Service; Frank Harris, d/b/a Frank Harris Tile Company ; Daryl Massey d/b/a Duke's Floor Covering ; Joseph Mozzicato; John Erpelding, d/b/a Sea-Ro Tile Company ; and Gerald Fallert, d/b/a G. & H. Tile Company , are persons engaged in commerce, or in an industry affecting commerce , within the meaning of Section 2(6) and (7) of the Act, as amended. 3. Carpet, Linoleum , Soft Tile and Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, as amended. 4. By inducing and encouraging individuals employed by Sears, or by other persons engaged in commerce or in an industry affecting commerce , to refuse, in the course of their employment, to transport or otherwise handle or work on goods, materials, articles or other commodities, or to perform services - for the purpose of forcing or requiring Sears to cease using, selling, handling, transporting, or otherwise dealing in the products of, and to cease doing business with, Joe and Eddie's Carpet Service, Clark Carpet Service, Frank Harris Tile Company, Duke's Floor Covering, Joseph Mozzicato, Sea-Ro Tile Company, and G. & H. Tile Company - Respondent Union has committed an unfair labor practice within the meaning of Section 8 (b)(4)(i)(B) of the Act, as amended. 5. By threats, coercion, or restraint, directed both to Sears, Roebuck and Co . and other persons engaged in commerce or in an industry affecting commerce - for the purpose of forcing or requiring such persons to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer processor, or manufacturer, and to cease doing business with other persons - the Respondent Union has committed an unfair labor practice within the meaning of Section 8(b)(4)(ii)(B) of the Act, as amended. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act, as amended. RECOMMENDED ORDER Upon these findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, order that respondent labor organization , Carpet, Linoleum, Soft Tile and Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO, together with its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Inducement or encouragement of any individual employed by Sears , or by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal, in the course of his employment, to use, manufacture, process, transport or otherwise handle or work on any goods , articles, materials or commodities, or to perform any services, where an object thereof is to force or require Sears, Roebuck and Co., or any other person, to cease doing business with Joe and Eddie's Carpet Service Company, Clark Carpet Service, Frank Harris Tile Company, Duke's Floor Covering, Joseph Mozzicato, Sea-Ro Tile Company, G. & H. Tile Company, or any other person. (b) Threatening, coercing, or restraining Sears, Roebuck and Co., or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Sears, or any other person , to cease doing business with the partnership and several sole proprietorships designated within the preceding subparagraph. 2. Take the following affirmative action which will effectuate the policies of the Act, as amended. (a) Post in conspicuous places at its business offices and meeting halls, including all places where notices to members are customarily posted, copies of the attached 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice marked "Appendix.' Copies of this notice, to be furnished by the Regional Director for Region 27, as the Board's agent, shall be posted immediately upon their receipt, after being' duly signed on behalf of respondent Gabor organization by its duly designated representative. Once posted, it shall remain posted for 60 consecutive days thereafter. Reasonable steps shall be taken by respondent labor organization to insure that this notice is not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of this said notice to the Regional Director for Region 27 for posting by Sears Roebuck and Co., this recipient being willing, at all locations where notices to employees and installation contractors are customarily posted. (c) File with the Regional Director of Region 27, as the Board's agent, within 20 days of the service of this decision, a written statement setting forth the manner and form in which it has complied with this Recommended Order.' '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 deuce of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals. 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 the Regional Director for Region 27, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. WE WILL NOT induce or encourage anyone employed by Sears, Roebuck and Co., or by any other person engaged in commerce - or in an industry which affects commerce - to engage in a strike or refusal - in the course of his employment - to use, manufacture, process transport or otherwise handle or work on any goods, articles, materials or commodities , or to perform any services - for the purpose of forcing or requiring Sears Roebuck and Co ., or any other person, to cease doing business with Joe and Eddie's Carpet Service Company, Clark Carpet Service, Frank Harris Tile Company, Duke's Floor Covering, Joseph Mozzicato, Sea-Ro Tile Company, G. & H. Tile Company, or any other person. WE WILL NOT threaten , coerce or restrain Sears, Roebuck and Co., or any other person engaged in commerce - or in an industry which affects commerce - by maintaining picket lines, or by any other means - for the purpose of forcing or requiring Sears, Roebuck and Co., or any other person, to cease doing business with the partnerships and sole proprietorships named in the paragraph above. Dated By APPENDIX 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: CARPET, LINOLEUM, SOFT TILE AND RESILIENT FLOOR COVERING LAYERS, LOCAL UNION No. 419, AFL-CIO (Labor Organization) (Representative) (Title) 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 members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 260 New Custom House, 721 19th Street, Denver, Colorado 80202, Telephone 297-3551.