Local 895, Carpenters

National Labor Relations Board - Board Decisions

Oct 28, 1970

186 N.L.R.B. 152 (N.L.R.B. 1970)

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.