Chicago District Council Of Carpenters, Afl-Cio

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chico .District Council of Carpenters, AFL'-CIO did Polk Bros., Inc. Case 13-CB-10473 . 26 April 1985 . DECISION AND ORDER B' CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 18 September 1984 Administrative Law Judge Michael O. Miller issued the attached deci- sion. The Respondent filed exceptions and a sup- porting britf. The Charging Party filed a response in opposition to the Respondent's exceptions, and the General Counsel filed cross-exceptions and a supporting brief. The Board has considered the decision and the record in ligli\ of the exceptions and briefs and has decided to affrm the judge's rulings, findings, and conclusions' Mnd to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Osier of the administrative law judge and orders that the Respondent, Chicago District Council ofICarpenters, AFL-CIO, Chica- go, Illinois, its officers, agents, and representatives, shall take the action et forth in the Order. ' We agree with the judge "hat the subcontracting clauses the Re- spondent insisted that the Charging Party accept are secondary in thrust and contrary to Sec 8(e) of the Act They exceed permissible work pres- ervation or area standards prowslcns because they limit subcontracting to persons who are covered by a colective-bargaining agreement with the Respondent or observe the same benefits and employment conditions the Respondent's contract provides . See Carpenters Local 944 (Woelke & Romero), 239 NLRB 241, 246-247 (1978), enfd 654 F 2d 1301 (9th Cit. 1981), affd in part and remanded 45i U S 645 ( 1982), Tri-State Building Trades Council (Stark Electric), 262 NLRB 672, 674 (1982) •11 DECISION STATEMENT OF THE CASE. MICHAEL O. MILLER, Administrative Law Judge. This case was heard on March 29 'and 30, 1984, in Chicago, Illinois, based on an unfair labor practice charge filed by Polk. Bros., Inc. (the Employer), -on December -27, 1983, and a complaint issued by the Regional Director for Region 13 on January 9_1983, 1983, as thereafter amended. The complaint alleges that Chicago District Council of Carpenters, AFL-CIO (the Union) violated Section 8(b)(3) of the National Labor Relations Act by demand- ing as a condition of consummating any collective-bar- gaining agreement that the Employer agree to inclusion of contract clauses which are prohibited by Section 8(e) of the Act. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of all parties. - Based on the entire record," including my observation of the witnesses and their demeanor, I make the follow- ing •' -FINDINGS OF FACT' I.-RESPONDENT'S BUSINESS AND THE UNION'S LABOR sORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, and the record establishes, that the Employer is engaged in the Chicago, Illinois metro- politan area in the operation of a chain of retail stores selling home furnishings, including large and small appli- ances, furniture, and carpeting at discount prices. The record further establishes that the Employer has annual gross sales in- excess of $500,000 and purchases and re- ceives goods valued in excess of $50,000 directly from points outside the State of Illinois. Accordingly, I find and conclude that the Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I find and conclude that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICE The facts involved here are largely undisputed. Re- spondent sells carpeting at several of its 'retail stores and the sale of that carpeting includes its installation. For more than 20 years, the Employer has recognized Re- spondent Union as the representative of those of its em- ployees who are engaged in carpet laying. Through, May 31, 1983, the Employer was bound to the terms of the area agreement between Respondent Union and the Mid- America Regional Bargaining Association. Included within that agreement was the following: ARTICLE III SUB-CONTRACTING 3.1 The parties hereto being in the Construction Industry qualify under the provision of Section 8(e) of the National Labor Relations Act, 1947 as amended. 3.2 EMPLOYER shall not contract or sub-con- tract any work coming within the jurisdictional claims of the UNION to any person, firm or corpo- ration not covered by d Collective Bargaining Agreement with the UNION, provided, however, that the provisions of this paragraph shall apply only to the contracting and sub-contracting of work to be done at the site of construction, alteration, painting or repair of a building, structure or other work. 3.3 EMPLOYER, in recognition of the territorial and occupational jurisidiction of the UNION, shall ' The joint motion by the General Counsel and the Charging Party to correct the record, unopposed by Respondent, is granted 275 NLRB No. 51 CARPENTERS CHICAGO COUNCIL (POLK BROS.) not subcontract of contract out ,jobsite work coming within the jurisdiction of the Carpenters Union nor utilize on the jobsite the services of any other person, company or concern to -perform such work that does not observe the same wages, fringe benefits, hours and conditions of employment as en- joyed by the Employees covered by this Agree- ment. 3.4 Any EMPLOYER who sublets any of the work coming within the jurisdiction of Carpenters shall assume the obligations of any sub-contractor to the extent of Carpenter labor employed on work under contract with the EMPLOYER for prompt payment of Employee's Wages; Health and Welfare, Pension and Apprentice Training Contributions, in- cluding 'reasonable attorney fees incurred in enforc- ing the provisions hereof, provided the-sub-contrac- tor is not bonded as' provided for in Article XV 'hereof: The UNION will, upon written request, fur- nish written certification to any EMPLOYER as to whether. a- sub-contractor is -adequately bonded in- cluding expiration date of bond, and that wages and payments to Health and Welfare, Pension and.Ap- prentice Contributions are current. If the Employ- ees are withdrawn from any job in order to collect contributions to the Carpenters Health and Welfare, Pension and Apprentice Training Program, the Em- ployees who are affected by-such stoppage of work shall be paid for lost time up to sixteen (16) hours, provided that,two (2) days notice of the intention to remove Employees from' the job is given to the EMPLOYER 'and the subcontractor by the UNION by registered'mail. ' 3.5 If an EMPLOYER, bound by this Agreement, contracts or subcontracts any work covered by this Agreement to be done' at- the job site of the con-' struction, alteration, , painting or repair of a bull- dling, structure or, other work to any person or pro- prietor who is not signatory to this Agreement, the EMPLOYER shall require such subcontractor to be bound by all the provisions of this Agreement, or the EMPLOYER shall maintain daily records of the subcontractor's or the subcontractor's Employ- ees job site hours and be liable for payments to the 'Chicago District Council of Carpenters Welfare Fund, 'the_Chicago District Council of Carpenters Pension Fund, and the Chicago District Council of Carpenters Apprentice and Trainee Program, as ' provided in Articles XII, XIII, ` and XIV,-of this Agreement. 'On December 29, 1982, • the Employer notified the Union of its desire to terminate -the agreement upon its May 31-, 1983 expiration date, indicating, at least inferen- tially, that it wished to negotiate with the Union on its own. Thereafter, the- Employer and the Respondent Union met several times, both before and after the expi- ration of the area agreement. On September 27, 1983, the Union presented the Employer's bargainers with the ad- dendum to the area agreement agreed to between the Union and the Professional Floor Installers Association. That addendum incorporated the terms and conditions of 295 the area agreement, including the above-quoted i ltmita- tions on subcontracting, and added a. requirement that subject employers would notify the Union of the name and address of all subcontractors along with the name and address of the job being performed Michael Crane, the Employer's vice president, specifically asked whether the Union was asking to be notified of each customer's name and address whenever the Employer subcontracted carpet installation and whether the Union was seeking contributions to the Union's health and welfafe fund for all employees of such subcontractors. Robert Newell, Respondent's,business representative, replied that it was. The Employer objected to the inclusion of these subcon- tracting clauses and Newell stated that all provisions of the area agreement, including those pertaining to subcon- tracting, had to be accepted. He could see no reason to give this employer any exemption from those provisions. The next and last meeting was held about October 11, 1983. The Employer, specifically objected to the restric- tions on subcontracting and was -told` that the 'Union could not deviate from those provisions in the area agreement because it had agreed to "most favored na- tion's clauses" with the other signatories. These provi- sions were presented on a "take it or leave it proposi- tion." The Employer refused to discuss the inclusion of such subcontracting limitations and the parties agreed that if the Employer, would not agree to such provisions there would be no point in continuing further negotia- tions. It is clear, from the testimony and: the statements of Respondent's counsel on the,record and in its brief, that the Union was insisting upon the above-quoted arti- cle as a condition of agreement. The General Counsel contends, and the Union does not appear to seriously contest, that the above-quoted subcontracting clauses are violative of Section 8(e) of the Act unless the Employer comes within the first proviso to Section, 8(e) as "an employer in the construction in- dustry" and the 'agreement relates "to the contracting or subcontracting of work to.lie done a-t the site of the con- struction, alteration, painting, or repair of a building, structure or other work . . . .2 I agree with the General Counsel's basically uncontested contention. As applied to any employer who is not in the construction industry, the Union's proposed subcontracting article in both its "union .signatory" language as found in article 3.2 and its overbroad "union standards" language of article 3.3, vio- lates Section 8(e). See Carpenters Local 944 (Woelke -& Romero), 239 NLRB 241,(1978) (union signatory clause); 2 Sec 8(e), to the extent applicable-herein, provides (e) It shall be an'unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express ;,or implied, whereby such employer ceases or refrains or agrees to cease or refrain from. handling, using, selling, transporting or other- wise dealing in any of the products of any other employer, or to cease doing business with any othei person; and any contract or agreement entered into heretofore or hereafter. containing ,such an agreement shall be.tto.such extent unenforceable and void Provided, That nothing in this subsection (e) shall apply to an agreement be- tween a labor organization and an employer in the construction in- dustry-relating-to the contracting or subcontracting of work to be done at the site of;the;construction,-alteration, painting, or.repair of a building, structure, or other work 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tri-State Building & Trades Council (Stark Electric), 262 NLRB 673 (1982) (union standards clause). Thus, the question presented here is whether the Em- ployer is an employer in the construction industry. If tt is not, then the Union's, insistence upon inclusion of a clause violative of Section 8(e) constitutes a breach of the Union's bargaining obligation under Section 8(b)(3). Lithographers, 130 NLRB 985 (1961), enfd. in pertinent part 301 F 2d 20 (5th Cir. 1962) - The first proviso to Section 8(e), by its express lan- guage and as interpreted, exempts from the Act's prohi- bitions clauses such as those'involved here when found in agreements, between a labor organization and "an 'em- ployer in the construction industry" pertaining "to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure or other work * . . . ." National Woodwork Mr`s. Assn. D. NLRB, 386 U.S 612 (1967); Op- erating Engineers Local 12 (Acco Construction), 204 NLRB 742 (1973). The burden of establishing that the employers who would be signatory to the contract are. engaged in the construction industry rests on the Re- spondent Union. Teamsters Local 83 (Various Employers), 243 NLRB 328 (1979);' Painters Local 1247 (Indio Paint), 156 NLRB 951 (1966).3 In the instant case, I cannot find that Respondent Union has sustained this burden The record establishes that in excess of 99 percent of the Employer's carpet sales are to the ultimate consum- ers, owners, and occupants of homes, condominiums, and apartments Of these sales, a similar percentage is re- placement carpeting to be installed in already occupied premises. The Employer's few sales to commercial cus- tomers are neither specifically-solicited by advertisement nor bid upon by the Employer; they result from pur- chases being made in response to its retail advertising. The Employer's nine carpet installers alternate between working in the warehouse where they cut carpet strip- ping and cut and wrap carpeting and padding and "the field" where they install the carpeting in the customers' dwellings (or occasionally their offices). In laying this carpeting, the installers remove the existing carpet, if any, sometimes scraping up the adhesive used to hold carpeting to the floor. They affix the carpet strips to hold wall-to-wall carpeting and sometimes apply new ad- hesive where that is the method of installation, and they install the new carpeting, putting down padding, trim- ming, seaming, and stretching While carpet installation may, on occasion, necessitate the removal of moulding at the base of the wall, or the cutting of doors, the Employ- er's installers do not perform any of this work. Neither do the installers put down new flooring under the carpet or repair faulty flooring. The customer arranges for that work to be done by others or does it himself Polk subcontracts more than half of its carpet installa- tions.4 It is, however, only that work which Polk's exist- 3 Although these were cases involving Sec 8(1), the principle remains the same 4 It is these subcontracts, particularly those to nonunion shops, which Respondent openly seeks to prevent ing employees cannot handle within their regular . 5-day, 40-hour week which is subcontracted The Employer does not act as a subcontractor installing carpeting sold by any other retailer Neither does it sell or install other types of flooring materials such as parquet flooring, as- phalt tile, or linoleum. Its employees do not usually per- form their duties while craftsmen from the building trades are present at the premises. - The foregoing description of its business, I believe, does not bring the Employer within the construction in- dustry as that industry has been defined in Board law In Painters Local 1247 (Indio Paint), 156 NLRB 951 at 959 (1966), the Board adopted the following definition-of the construction industry: . Within these various definitions, whether technical, common, or, legal, substantial consensus seems-clear. Each formulation with respect to the so-called building and construction concept subsumes the pro- vision of labor whereby materials and constituent parts may be combined on the building site to form, make, or build a structure: These various factors,,, there- fore, define the statutory "building and construction industry" with which we are concerned. See also Teamsters Local 83, infra. The Board in Indio Paint went on to conclude that "when business enter- prises devote their facilities, time, effort, and funds prin- cipally to contract construction, whether as general building contractors, heavy construction contractors, or special trade contractors-within the meaning of these terms . . . they should be considered primarily engaged in `building and construction industry' work " In that case, unlike the instant situation , the Employer derived nearly two-thirds of its business from special trade con- tract work for general contractors who were engaged in residential and commercial construction. That work was done pursuant to subcontract awards made by general contractors on competitive bids. Moreover, the employer in that case, unlike here, was involved in the installation of both hard and soft floor coverings, built and installed counters, frequently had its employees working on job- sites together with craftsmen from the building trades, and possessed a contractor's license Similarly instructive with respect to whether the Employer is engaged in the construction industry is Los Angeles Building Trades Council (Donald Shaver), 239 NLRB 264, 269 (1978), affd. 635 F 2d 859 (D.C. Cir 1980), where the Board stated that the construction industry proviso to Section 8(e) was: [D]esigned to accommodate the unique situation in the construction industry where contractors and subcontractors are in close relationship on the job- site, employment is sporadic in nature, and employ- ers need a ready supply of skilled employees and advance information concerning labor costs. That is not the situation here. Both the General Counsel and Respondent rely on the Standard Industrial Classification Manual (SIC) prepared by the Statistical Policy Division of the Executive Office of the President, Office of Management and Budget, CARPENTERS -CHICAGO COUNCIL (POLK BROS) 297 1972 edition, to support their-contrary positions with re- spect to the inclusion of carpet installation within the construction industry. Thus, Respondent cites SIC Major Group 17-Construction-Special Trade Contractors and its subsection, Industry Number 1752 Therein, special trade contractors are defined as those who. . may work on subcontract from the general contractor, performing only part of the work cov- ered by a general contract, or they may work -di- rectly for the owner Special trade contractors for the most part perform their work at the site of con- struction, although they also may have shops where they perform work incidental to' the site job Specifically, with respect to "Floor Laying and Other Floor Work, Not Elsewhere Classified," this category in- cludes within the construction industry- Special trade contractors primarily engaged in laying, scraping, and furnishing parquet and other hardwood flooring. This industry includes the in- stallation of asphalt tile, linoleum, and resilient flooring. Thereunder is listed "carpet laying or removal service- contractors." The Employer involved here is not a contractor and the foregoing description, I find, is less characteristic of the Employer's business than SIC Retail Trade, Major Group 57-Furniture; Home Furnishing, and Equipment Stores There, this group is defined as including: [R]etail stores selling goods used for furnishing the home, such as furniture, floor coverings, drapery, glass, and chinaware, domestic stoves, refrigerators, and other household electrical and gas appliances It further specifies, in defining industry No. 5713, "Floor Covering Stores" Establishments primarily engaged in the retail sale of floor coverings and related products. Estab- lishments included in this industry, which may mci- dently perform installation, are to be distinguished from contractors primarily engaged in installing floor coverings which are classified in Industry 1752. Carpet Stores-Retail Rug Stores-Retail Finally, I note that the second part of the 8(e) proviso limits the applicability of that section to contracts cover- ing work to be performed at construction jobsites The plain and simple meaning of these words would seem to exclude the installation or replacement of carpeting in a consumer's already constructed and occupied dwelling (or office) Accordingly, I must conclude that the carpet installa- tion operations of this Employer do not fall within the construction industry proviso to Section 8(e).5 I there- 5 Having so concluded, I need not reach the question, argued by the General Counsel, as to whether or not article 3 4 of the Union's proposed agreement "contains a self-help provision which removes the provisions fore conclude that Respondent's' insistence. on the inclu- sion of subcontracting, restrictions prohibited by Section 8(e) of the, Act violates its bargaining obligation under Section 8(b)(3). CONCLUSIONS OF LAW 1. Respondent is the collective-bargaining representa- tive of the carpet installers employed by Polk Bros., Inc , an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2. Polk Bros., Inc. is not an employer engaged-in.the construction industry 3. By. conditioning the, consummation of any collec- tive-bargaining agreement between it and Polk Bros., Inc. upon the Employer's agreement to contract provi- sions which are prohibited by Section 8(e) of the Act, Respondent has failed and refused to bargain in good faith with that Employer in violation of Section 8(b)(3) of the Act 3. The foregoing unfair labor practice is an unfair labor practice affecting commerce within the-meaning of Section 2(2), (6), and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice in violation of Section 8(b)(3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative active designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Chicago District Council of Carpen- ters, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Conditioning the consummation of any collective- bargaining agreement with Polk Bros, Inc. upon the in- clusion of provisions violative of Section 8(e) of the Act. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2. Take the following affirmative active which is nec- essary to effectuate the policies of the Act (a) Post in conspicuous places at its office and meeting places frequented by its members and employees it repre- sents, including all places where notices to members and such employess are customarily posted, signed copies of the attached notice marked ',Appendix. 117 Copies of the in issue from the proviso exemptions " See Operating Engineers Local 12 (Griffith Co). 243 NLRB 1121, 1124 (1979) 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses r If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- Continued 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, on forms provided by the Regional Director for Region 13, after being signed by Respondent's authorized representative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, de- faced, or covered by any other material. (b) Additionally, Respondent shall sign and mail to the Regional Director of Region 13 sufficient copies of the notice for forwarding to Polk Bros., Inc., for posting by that Employer, if willing, in all locations where notices to its carpet installer employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, it has been found that we violated the National -Labor Relations Act, as amended, and we have been ordered to post and abide by this notice. WE WILL NOT condition the consummation of any col- lective-bargaining agreement with Polk Bros., Inc. upon that employer's agreement to contract terms which vio- late Section 8(e) of the National Labor Relations Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " CHICAGO DISTRICT COUNCIL OF CARPEN- TERS, AFL-CIO