Local 895, Carpenters

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 895, N United Brotherhood of Carpenters, AFL-CIO; District Council No. 12, United Associ- ation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada; Local 543, United Association of Journeymen and Apprentices of The Plumbing And Pipefitting Industry of the United States and Canada; International Brotherhood of Electrical Workers, Local 501; International Building and Common Laborers Union of America, Local 55; Metallic Lathers Union of New York and Vicinity Local Union No. 46, Wood, Wire And Metal Lathers International Union ; Sheet Metal Workers Union Local 38; Westchester Building and Con- struction Trades Councils of Westchester and Lower Putnam Counties ; Local 255, United Associ- ation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and George A. Fuller Company, Inc., and Neptune World Wide Moving, Inc. and Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Local 895, United Brotherhood of Carpenters, AFL-CIO; District Council No. 12, United Associ- ation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada; Local 543, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada; International Brotherhood of Electrical Workers, Local 501; International Building and Common Laborers Union of America, Local 55; Metallic Lathers Union of New York and Vicinity Local Union No. 46, Wood, Wire and Metal Lathers International Union; Sheet Metal Workers Union Local 38; Westchester Building and Con- struction Trades Councils of Westchester and Lower Putnam Counties; Local 255, United Associ- ation of Journeymen and Apprentices of the Plumbing and Industry of the United States and Canada and Neptune World Wide Moving Inc. and Local 445, Teamsters , Chauffeurs, Warehousemen and Helpers of America. Cases 2-CD-398 and 2-CD-398-2 October 28, 1970 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS This is a proceeding under Section 10(k) of the I Unless otherwise indicated, dates fall in 1969. 2 At the hearing, the Hearing Officer granted a motion to allow Union National Labor Relations Act, as amended, following the filing of charges by Neptune World Wide Moving, Inc., herein called Neptune, and George A. Fuller Company, Inc., herein called Fuller, alleging that Respondent Unions Local 895, United Brotherhood of Carpenters, AFL-CIO (herein called Carpenters); Local 543, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (herein called Plumbers Local 543); International Brotherhood of Electrical Workers, Local 501 (herein called Electrical Workers); Local 55 , International Building and Common Laborers Union of America (herein called Laborers); Metallic Lathers Union of New York and Vicinity Local Union No. 46, Wood, Wire and Metal Lathers International Union (herein called Lathers); Local 38, Sheet Metal Workers Union (herein called Sheet Metal Workers); Local 255, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (herein called Plumbers Local 255); District Council No. 12, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (herein called Plumbers Trade Council); and Construction Trades Councils of Westchester and Lower Putnam Counties (herein called Construction Trades Councils) had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity set out below with an object of requiring Neptune to assign the work in dispute to employees represented by said Respon- dents rather than to Neptune's own employees who are represented by Local 445, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as Teamsters. Pursuant to notice, a hearing was held before Hearing Officer Herzl S. Eisenstadt on various dates between December 10, 19691 and April 16, 1970. All parties appearing at the hearing were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues.2 Thereafter briefs were filed on behalf of all parties to the proceeding except Carpenters and Fuller. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the briefs of the Carbide, the owner of the premises on which the dispute arose , to intervene and participate in the hearing. 186 NLRB No. 29 LOCAL 895, CARPENTERS 153 parties and the entire record in this case and makes the following findings: 1. THE BUSINESS OF THE COMPANIES The parties stipulated that: A. Neptune, a New York corporation engaged in the motor carrier business, has an annual gross revenue in excess of 1 million dollars from the transportation of gas in interstate commerce. B. Fuller is a Maryland corporation engaged in the general contracting business. In the course of its activities it annually performs services in excess of $50,000 in each of several States and purchases and ships materials across State lines in excess of $50,000. C. Union Carbide, the owner of the premises on which the dispute arose, is a New York corporation engaged in the manufacture, among other products, of chemical and industrial gases. It annually ships gas in excess of $50,000 to firms located outside the State of New York. On the basis of these stipulated facts, we find that the three companies are engaged in interstate com- merce and that it will effectuate the policies of the Act to assert jurisdiction herein. Respondents declined to stipulate whether Nep- tune, Union Carbide, or Fuller is the Employer for the purposes of assigning the disputed work. The record reveals that when Union Carbide contracted with Neptune for the movement of the equipment involved herein, it neither directed Neptune to assign the disputed work to any particular employees nor reserved for itself the right to make such assignment. Although at one point, because of the Respondents' work stoppage, Union Carbide asked Neptune to allow Fuller and its subcontractors to assign the work to the trades union members, Union Carbide ac- quiesced in Neptune's decision that its own employees would perform the disputed work. Accordingly, in view of such acquiescence, the fact that Neptune has assigned the work and as it appears that it is Neptune to whom Respondents look for the work assignment, we find that Neptune is the Employer herein for the purposes of assigning the disputed work. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Carpenters, Plumbers Local 543, Electrical Workers, Laborers, Lathers, Sheet Metal Workers, and Plumbers Local 255 are labor organizations within the meaning of Section 2(5) of the Act. The Respondent trade unions contend that neither Plumbers Trade Council nor Construction Trade Councils is a labor organization or a proper party to this proceeding. The record reveals that the two Councils have a common secretary-treasurer and are composed of the business agents who are elected by their constituent trade unions, many of whom are parties to this proceeding. Council meetings are on an irregular basis and usually are confined to discussions of mutual problems of working conditions including grievances and contract negotiations. Although the Councils sometimes, at the insistence of employers affected by jurisdictional disputes, make recommen- dations on resolution of differences among union members, they have no enforcement powers. They operate no pension funds and it appears that employee participation in the Councils' activities is only through their business agent-representatives. On the other hand, however, the Councils have issued work cards for purposes of identification to members of its constituent unions and have contacted employers with the object of protecting present and future work rights of the members of its constituent trade unions. In fact, in the instant case, the record reveals that Grimm, the Councils' common secretary- treasurer, in dealings with the companies involved, was acting on behalf of all the trade unions involved in this proceeding in an effort to have the dispute resolved in a manner favorable to them. On these facts, while we find the evidence insuffi- cient to find that the Trade Councils are labor organizations, we are satisfied that through the efforts of their common secretary-treasurer to have the disputed work assigned to the various trade union members, they acted as a general agent for the other Respondents. Accordingly, we find that they are proper parties to this proceeding. III. THE DISPUTE A. The Background of Facts The facts show that since July 1966, Fuller has been in the process of doing construction work for Union Carbide in Tarrytown, New York. Part of that work was the construction of laboratories and a complex of office buildings known as the Linde Laboratory, which would ultimately house Union Carbide equip- ment to be transported there from existing laboratory facilities that were being consolidated into the new Tarrytown location. In the course of constructing the building, Fuller used its own employees and the employees of its various subcontractors, all of whom are represented under collective-bargaining agree- ments between Fuller and its subcontractors and the appropriate building trades unions. In March 1969, Union Carbide engaged Neptune to move the various furnishings and equipment from its existing facilities at Tonawanda, New York, Newark, New Jersey, and Speedway, Indiana, to the Linde Laboratory. On April 18, when Neptune made its first delivery, it used its own employees who are represent- 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed by the Teamsters to unload the equipment from the vans and to put it in place within the building. Shortly thereafter, various trade union members objected to Neptune's employees handling the equipment from the loading dock and carrying it into the building. They took the position that such work should be performed by members of the various trades working on the building who would perform hookup and installation work on the equipment. According to Nelson, Fuller's project manager, a trade union spokesman stated to him that if Neptune were allowed to move the equipment in, they [trade union leaders] would not be responsible for their employees [trade union members]. On May 2, when Neptune arrived with another load of equipment, Sablin, its supervisor, was met by a delegation of building trade representatives who demanded that no equipment be moved off the trucks beyond the loading dock by Neptune employees. When Neptune employees began unloading the trucks and carrying the equipment into the building, members of the various trades engaged in a work stoppage. They returned to work however on May 5 when at Grimm's suggestion Fuller wrote Grimm a letter stating that Respondents should perform the disputed work. Thereafter, several meetings took place between representatives of Fuller, Neptune, the Teamsters, and representatives of the building trade unions (and trade councils) in an effort to reach a solution acceptable to all the labor organizations involved. At Union Carbide's suggestion, Neptune made no deliveries while these discussions were taking place. When the negotiations were unsuccessful, Neptune on July 9 resumed its moving operations. When its trucks arrived at the dock, however, members of the building trades in that general dock area ceased working. Because a large accumulation of welding machines and other equipment abandoned by members of the trade unions blocked the passage from the dock to the building entrance, Neptune was unable to deliver the equipment into the building. On July 11 Fuller filed charges and on July 25 the United States District Court for the Southern District of New York, after finding that members and representatives of the several trade unions involved had made threats and engaged in work stoppages which obstructed Nep- tune's access to the building in an effort to force assignment of the disputed work to composite crews of trade union members, enjoined Respondents from disrupting Neptune's deliveries.3 Although the deliv- eries subsequently were completed, the parties have been unable to resolve the dispute. 3 The parties stipulated that the transcript and exhibits from the injunction proceeding be included as part of the record in the instant proceeding B. The Work in Dispute The disputed work, as redefined by the Regional Director in the amended Notice of Hearing, is limited to the assignment of the work of moving equipment and furnishings into buildings owned by or under construction for Union Carbide at Tarrytown, New York, and the placing of said furnishings and equipment at their designated locations in said buildings. The record however reveals that Respon- dents' claims were limited to the unloading and placing of only that equipment on which they would thereafter perform hookup or installation work. C. Contentions of the Parties Neptune and Local 445 contend that the assignment of the disputed work to employees represented by Local 445 was proper on the basis of (a) their collective-bargaining agreement covering the disput- ed work; (b) Neptune's practice; (c) area and industry practice; (d) skill of the employees assigned the work; and (e) the economy and efficiency of operations. While Union Carbide is neutral on the issue of which group of employees should perform the disputed work, it takes the position that Neptune is the proper party to make such assignment. The Respondents argue that the disputed work belongs to trade union members on the basis of (a) possession of a requisite skills by members of the respective labor organizations and (b) area and industry practice. Although Fuller also filed charges against the Respondents, it neither presented evidence of its own at the hearing nor filed a brief with the Board. D. Applicability of the Statute Before the Board may proceed with a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reason to believe that Section 8(b)(4)(D) has been violated. As previously set forth, Respondents have demanded the work of carrying the equipment and furnishing from the loading dock into the building. The record further reveals, as found by the District Court in the injunction proceeding, that members and representa- tives of the several Respondent building trades made threats of work stoppages, engaged in work stoppages, and obstructed Neptune's access to the interior of the building in an attempt to have the disputed work assigned to composite crews of employees represented by Respondents.4 We find, therefore, on the entire record, that there is 4 Respondents sought to show that members of the Laborers did not participate in the work stoppage and moved for dismissal of the charges alleging that Laborers engaged in proscribed activity Respondents also LOCAL 895, CARPENTERS 155 reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to the various relevant factors.5 1. Collective-bargaining agreements ent with Neptune's practice and is a factor favoring teamsters. Evidence as to industry and area practice is inconclusive as the record indicates a mixed use of both teamsters and tradesmen such as represented by Respondents to perform work similar to that in dispute. 3. Skills, efficiency, and economy of opera- tion There is no evidence that a Board certification covers the disputed work. Neptune has a collective-bargaining agreement with the Teamsters but has no such agreement with any of the other unions involved in this proceeding. While the contract between Neptune and the Teamsters does not specifically refer to the work in dispute, Neptune and the Teamsters contend nevertheless that the agreement requires the assignment of the disputed work to the Teamsters. In this connection, both point out that a relevant part of the contract requires that Neptune hire teamsters for "commercial work" and that the contract defines as commercial work, "the moving and handling of contents of offices, etc." Additionally, Union Carbide points out that its award of the contract to Neptune contemplated Neptune's making the entire move to points of installation. In view of the fact that Neptune, pursuant to its contract with Union Carbide, has completed all phases of the moving operation using only its own employees, who are represented by the Teamsters, and in view of the absence of any agreement between Neptune and the trade unions, we find this factor tends to favor teamsters. 2. Company, industry, and area practice. Neptune has assigned all phases of its moving operation (including the task of initial handling, loading, unloading, and placing equipment in its ultimate situs) to its own employees for over 10 years, and has never assigned such work to members of the Respondents. Although there was some evidence that on one occasion some equipment deposited by Neptune on a loading dock was emplaced by tradesmen, and that in some other instances small amounts of equipment were emplaced by tradesmen, these appear to have been merely isolated incidents, rather than any uniform practice on Neptune's part. Accordingly, the present assignment appears consist- contends that Lathers neither claimed any of the work involved nor engaged in a work stoppage. Without resolving credibility as to whether either labor organization engaged in a work stoppage or individually asserted a claim to the work in dispute, we find the record evidence indicates that both Laborers and Lathers adopted and ratified the action of Trades Council secretary-treasurer Grimm who demanded the work on The record does not indicate that the actual work of moving the equipment into buildings is difficult or requires a degree of skill not possessed by the claimants of the work in dispute. It appears however, that the skill involved is the smoothness of the total operation. In this regard, Neptune testified that its employees are trained to learn a coding and tagging system by which they know, from the moment equipment is picked up, the exact location at which it will be placed in the building in which it is moved. Neptune's training program for its employees also contains instructions for the packing, handling, and unpacking of delicate and sensitive laboratory equip- ment, such as much of the equipment involved in the instant dispute. Thus while the trade union members may possess skills equal to those of Neptune's employees in handling the equipment, there is no evidence that members of Respondents are familiar with Neptune's coding and tagging systems and could move equipment into designated places as smoothly as can Neptune's employees. Also of significance is the fact that Neptune has been satisfied with the teamsters' performance of the work in question. The evidence further reveals that since Neptune's operations contemplates the use of its own employees for all phases of moving operations, these services, as well as insurance and liability, are reflected in the all- inclusive tariff rates. In this regard, release of the goods and equipment prior to ultimate emplacement would result in fragmentation of the overall moving operation, involving additional costs to the shipper based on the different area wage rates of the various Respondents whose members claim the disputed work. Also, additional time would be required to allow inspection and inventory of the equipment before Neptune released it to the trade union members who would move it into the building. Further, Neptune's rates are not subject to apportion- ment to reflect that employees other than its own performed work in connection with a move. Accord- behalf of all Respondents. Accordingly, we find reasonable cause for believing they made common cause with the other Respondents and are proper parties to this proceeding. 5 N.L.R.B. v. Radio Television Broadcasting Engineers Union Local 1212, International Brotherhood of Electrical Workers (Columbia Broadcasting System), 364 U.S. 573. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ingly, considerations of skill, efficiency, and economy of operation all tend to favor an assignment consistent with that made by Neptune. CONCLUSIONS Having considered all pertinent factors, we con- clude that employees represented by Teamsters are entitled to perform the work in dispute. Members of Teamsters are at least as skilled as are the members of the various Respondent trade unions insofar as the disputed work is concerned and Neptune has been satisfied with the quality of their work and the resulting efficiency and economy of operations. Moreover, assignment of the work to employees represented by the Teamsters is consistent with Neptune's interpretation of its contract with the Teamsters, its past practice, and the assignment is not inconsistent with any area or industry practice and will result in more economical and skillful operations. Accordingly, we conclude from the foregoing that Neptune's assignment of work to employees repre- sented by the Teamsters should not be disturbed. On the basis of the entire record, therefore, we shall determine the existing jurisdictional controversy by awarding the work in dispute to the employees represented by the Teamsters, rather than to individu- als represented by members of Respondent trade unions. Our present determination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings, and the entire record in this case, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of Neptune World Wide Moving, Inc., represented by Local 445, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are entitled to perform the work of moving equipment and furnishings into the buildings owned by or under construction for Union Carbide at Tarrytown, New York, and the placing of said furnishings and equipment at their designated locations in such buildings for their Employer. 2. Local 895, United Brotherhood of Carpenters, AFL-CIO; Local 543, United Association of Jour- neymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada; International Brotherhood of Electrical Workers, Local 501; Local 55, International Building and Common Laborers Union of America ; Metallic Lathers Union of New York and Vicinity Local Union No. 46, Wood, Wire and Metal Lathers International Union ; Local 38 , Sheet Metal Workers Union ; Local 255, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ; District Council No. 12, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada; and Construction Trades Councils of Westchester and Lower Putnam Counties are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Neptune World Wide Moving, Inc., to assign the above work to tradesmen represented by the above-named labor organizations and parties. 3. Within 10 days from the date of this Decision and Determination of Dispute, the labor organiza- tions and parties listed in the preceding paragraph shall notify the Regional Director for Region 2, in writing, whether or not they will refrain from forcing or requiring Neptune World Wide Moving, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to their respective members rather than to members of Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America.