Local No. 2265, Carpenters

National Labor Relations Board - Board Decisions

Mar 21, 1968

170 N.L.R.B. 633 (N.L.R.B. 1968)

LOCAL NO. 2265, CARPENTERS 633
Local No. 2265 , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO and Carpet
Center, Inc. Case 7-CC-397
March 21, 1968
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS , AND ZAGORIA
On December 28, 1967, Trial Examiner Melvin
Pollack issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b") of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: Upon a charge
and amended charge filed on May 18 and August 3,
1967, respectively, by Carpet Center, Inc., herein
referred to as the Company, a complaint was issued
on August 8, 1967, which as amended at the hear-
ing, alleged that Respondent, Local No. 2265,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, --herein called the Union, had
violated Section 8(b)(4)(ii)(B) of the National
Labor Relations Act, as amended.
A hearing was held before me at Detroit,
Michigan, on September 25 and 26, 1967. At the
conclusion of the hearing, the General Counsel
presented oral argument. A brief was thereafter
filed by the -Union. Upon the entire record in this
case, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY; THE LABOR
ORGANIZATION INVOLVED
Carpet Center, Inc., a Michigan corporation, is
engaged in the retail sale of carpets and related
products at stores in the Detroit metropolitan area.
During 1966, a representative year, its gross retail
sales were in excess of $500,000, and it purchased
over $50,000 worth of carpets and related products
from Carpet Wholesalers, Inc., a Michigan corpora-
tion, which in turn -had received -these goods from
out-of-State suppliers.' I find that Carpet Center is
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. The Union is a labor
organization within the -meaning of Section 2(5) of
,the Act.
II. THE UNFAIR LABOR PRACTICES
On May 5, 1967, the Union's business agent sent
the following letter to the Company:
Today, Local 2265, International Brotherhood
of Carpenters and Joiners of America,
AFL-CIO, began picketing your main store.
The signs carried by our pickets read as fol-
lows: '
ATTENTION-PUBLIC ONLY
CARPET CENTER PROVIDES RATES OF PAY
AND CONDITIONS OF EMPLOYMENT FOR
INSTALLERS AND HELPERS
BELOW PREVAILING
STANDARDS ESTABLISHED BY CARPENTERS
LOCAL 2265
PLEASE DO NOT PATRONIZE
We intend to picket the customer entrances to
your parking lot, only during hours when your
store is open for business to the general public.
' Sol Nusbaum and members of his immediate family own Carpet Center
and Carpet Wholesalers Sol Nusbaum is insole charge of the operations of
both companies . I find that Carpet Center and Carpet Wholesalers are a
single employer for purposes of this proceeding.
170 NLRB No. 93
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The purpose of our picketing, while self-
evident from the above legend, is to inform the
public and your customers that installers do
not receive the rates of pay or work under the
terms and conditions of employment
established by this Union.
We have taken steps to prevent interference
with the pick-up, delivery or transportation of
goods. A telegram was sent to Teamsters Joint
Council No. 43 stating that the purpose of the
aforesaid picketing was not to interfere with
pick-ups or deliveries but was directed only to
the general public. In addition, we shall send a
similar notification to any firm or individual
you might specify that provides you with goods
and/or services.
The Union picketed the Company's main store
from May 5 to July 21, 1967, with signs bearing
substantially the same legend as that appearing in
the above letter.
The complaint alleges in effect that the Com-
pany's installers are independent contractors, that
the underlying dispute is between the Union and
the installers for operating non-union, and that an
object of the picketing was to force the Company
to replace its installers with installers under con-
tract with the Union. The Union contends that the
installers are employees of the Company or so al-
lied with it that the Company is not a neutral em-
ployer for purposes of the secondary boycott provi-
sions of the Act, and, in any event, that the General
Counsel has not shown that the Union's picketing
of Carpet Center was for an object proscribed by
Section 8(b)(4)(ii)(B) of the Act.
The facts on the status of the Company's instal-
lers may be summarized as follows:
The Company installs about 85 percent of the
carpeting it sells at retail through carpet installation
companies. These companies usually consist of two
men who work as an installation team.' The Com-
pany at all relevant times paid the installers $1.05
per yard of carpeting installed.' The installers use
their own panel truck and tools for the transporting
and laying of carpet; they carry their own in-
surance; and they have their own bank accounts.
The Company does not pay workmen's compensa-
tion, unemployment insurance, social security, or
withhold taxes for the installers.
The Company regularly assigns installation work
to about 15 to 20 installation teams. Its manager,
Joe Racklin, prepares assignments each evening for
the installation work to be performed the following
day. In assigning work to particular installers, he
takes into account the number of yards to be laid
and where the installers live, trying to give them
work near their homes.
The installers report each morning. to the Com-
pany's main store to pick up work assignment slips,
which are clipped together and kept at a rack near
the door where the installers load their trucks. Each
work slip carries the customer's name and address.
The installers find the carpeting which they are to
install and load it on their trucks. A work order
placed in the carpeting accompanies each installa-
tion job. The work order shows how to get to the
customer's residence, includes a drawing on graph
paper of each room or area to be carpeted, and
shows where seams, if any, are to be sewn. The in-
stallers are ordinarily expected to"install the carpet-
ing, which is precut in accordance with measure-
ments taken by the carpet salesman, on the same
day that they receive the assignment . If they cannot
make an installation as set out in the work order,
they call the store for instructions. They are ex-
pected to rectify any mistakes on their part within a
few days after the Company notifies them of a
customer's complaints, including paying for and
replacing any carpeting which they may have
damaged.'
The installers are free to take work elsewhere
whenever the Company does not supply them with
a day's work but they are expected for show up
regularly for work and to perform the work as-
signed to them before doing work for others. They
are expected to give the Company notice whenever
they are going to be away-for illness, vacation, or
some other reason.
The status of the installers as independent con-
tractors or employees under the Act is determined
by the "right to control" test. The Board has ex-
pressed this test as follows:'
... in determining the status of persons alleged
to be independent contractors, the Act
requires the application of the "right to con-
trol" test. Where the person for whom the ser-
vices are performed retains the right to control
the manner and means by which the result is to
be accomplished, 'the relationship is one of em-
ployment. On the other hand, where control is
reserved only as to the result sought, the rela-
tionship is that of independent contractor. The
resolution of this question depends upon the
facts of each case and no one factor is deter-
minative.
The record shows that the installers report for
work each morning at a time set by the Company;
that they are furnished with precut carpeting, room
layouts, and instructions on how to get to the
customer premises; that they are not free to reject
assignments and that they are expected to complete
2 In some instances , an individual may own one or two trucks and hire
employees to install carpeting for the Company
3 The installers are paid by the week except that the Company holds back
5 cents per yard until the end of the month to cover any failure by the in-
stallers to correct faulty work If so requested, the Company makes out
separate checks for each member of an installation team
" The nature of a customer's complaint will usually show whether the
Company or the installers are at fault In doubtful cases , the Company
sends out a representative to investigate the customer's complaint.
Pure Seat Dairy Co, 135 NLRB 76,79
LOCAL NO. 2265, CARPENTERS 635
assignments on the day received and in accordance
with the Company's work orders; that they are paid
the same rate per yard of carpet installed without
regard to the difficulty of the job; and that if their
work is displeasing to the Company in any respect,
the Company may discipline or get rid of them by
withholding assignments . I find from these facts
that the Company exercises such substantial control
over the manner and means, as well as the result, of
the installers' work, and that the installers are vir-
tually pieceworkers with little or no scope for mak-
ing decisions which will govern their profit or loss. I
therefore conclude that the installers, although cer-
tain aspects of their relationship with the Company
tend to support an independent contractor finding,
are employees of the Company.' Cf. Air Control
Products, Inc. of Tampa, 132 NLRB 114, 116.
As the installers are employees of the Company,
the Union's picketing of the Company's premises,
whether or not directed at forcing the Company to
replace its installers with installers working under
union contract, is outside the prohibitions of Sec-
tion 8(b)(4)(ii)(B).7 I shall therefore recommend
that the complaint be dismissed.
Upon the basis of the foregoing findings of fact, I
make the following:
CONCLUSIONS OF LAW
1. Carpet Center, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Local 2265, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. The aforesaid Union has not engaged in any
unfair labor practices as alleged in the complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be
dismissed.
6 As all installation teams are subject to the same company control over
the assignment ofjobs and how and when the jobs are to be accomplished,
the members of the teams are employees of the Company whether they are
business associates , or one member employs the other , or both members
are employees of another installer Cf Indiana Refrigerator Lines, Inc., 157
NLRB 539, 549.
° In view of my finding that the installers are employees of the Company,
I do not reach the Union 's other defenses that the Company and the instal-
lers are allied employers and that the Union 's picketing was not for objects
proscribed by Section 8(b)(4)(ii ) ( B) of the Act.