Metropollitan District Council of Phila., Carpenters

National Labor Relations Board - Board Decisions

Jun 25, 1974

211 N.L.R.B. 977 (N.L.R.B. 1974)

METROPOLITAN DISTRICT COUNCIL OF PHILA., CARPENTERS
Metropolitan District Council of Philadelphia &
Vicinity of the United Brotherhood of Carpenters
& Joiners of America ' and Greater Philadelphia
Moving & Storage Association and Murphy -Global
Moving & Storage, Inc. and Rose Associates and
Local 513, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca
Laborers ' Union Local #332 and Greater Philadel-
phia Moving & Storage Association and Murphy-
Global Moving & Storage , Inc. and Rose Associ-
ates and Local 513, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Cases 4-CD-3372 and
4-CD-3383
June 25, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Greater Philadelphia Moving &
Storage Association (herein called Association), on
January 11, 1974, alleging that Metropolitian District
Council of Philadelphia & Vicinity of the United
Brotherhood of Carpenters & Joiners of America
(herein called Carpenters), has violated Section
8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the assignment of certain work described
below to employees represented by Carpenters rather
than to members of Local 513, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (herein called Teamsters Local
513), who are employed by Murphy-Global Moving
& Storage, Inc. (herein called Murphy Global). A
hearing was held before Hearing Officer Allen B.
I A motion to amend the name of the Union by deleting "Local Union
No. 1050 , United Brotherhood of Carpenters and Joiners of America" was
not opposed at the hearing and was referred to the Board . The motion is
granted as Local Union No. 1050 is not involved in this case.
2 Carpenters Metropolitan District Council moved to dismiss Case
4-CD-337 contending the Greater Philadelphia Moving & Storage
Association is not an employer properly involved as Charging Party; that
Teamsters Local 513 had disclaimed the work so no dispute exists; and that
the job is completed , rendering the issue moot . First , as to Carpenters
contention that the Association is without standing to participate as a party
in this proceeding , the Act in Sec. 2 defines "Person" to include
"Associations" and Sec. 10(b) provides that a charge may be filed by any
person . See Sec. 102.9, National Labor Relations Board 's Rules and
Regulations , Series 8, as amended , Further, Sec, 102.8 makes it clear that
the term "party" includes "any person filing a charge ... under [the Act]."
As to the alleged disclaimer, the record shows that the Carpenters sought to
establish through testimony the existence of an alleged agreement between
it and the Teamsters , but the proffered evidence falls short of establishing
any such agreement . Moreover , the Association was never a party to any
977
Roberts on February 26 and 27, 1974. All parties,
except Rose Associates and Laborers' Union Local
#332, appeared at the hearing and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses , and to adduce evidence bearing
on the issues. Thereafter, briefs were filed on behalf
of Association and Murphy Global, and Carpenters.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE EMPLOYER
The Association is an unincorporated multiem-
ployer bargaining association consisting of 18 to 20
moving and storage companies located in Philadel-
phia, Pennsylvania, and vicinity. Murphy Global, a
Pennsylvania corporation, is a member of the
Association whose gross revenues received from out-
of-state shipments exceed $1 million annually.
We find that Murphy Global is engaged in
commerce within the meaning of the Act, and that it
will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION
The parties stipulated, and we find, that the
Carpenters and Teamsters Local 513 are labor
organizations within the meaning of the Act.
III. THE DISPUTE
A. Background and Facts of Dispute
The Sheraton Hotel chain is presently in the
process of constructing a new hotel at a location
such agreement as required by Plasterers ' Local Union No. 79, Operative
Plasterers ' & Cement Masons' International Association, AFL-CIO v.
N. L. R. B., 404 U.S . 116. Finally, the Board has consistently held that in the
absence of a voluntary adjustment or an agreed-upon method of adjustment
the completion of work in dispute does not render the dispute moot. For the
foregoing reasons we deny the motion as lacking in merit.
3 On February 22, 1974, a request for withdrawal of charges filed by the
Association against the Laborers ' Union Local # 332 was filed by the
Association through its attorney with the Regional Director . The basis for
this withdrawal request was that a voluntary means of dispute settlement
had been agreed upon among Local 513, Laborers' Local 332, and the
Association . Laborers' Local 332 did not attend the hearing and did not
otherwise participate . No evidence was proffered with respect to the basis of
a purported claim to the work by Laborers ' Local 332. The Association's
request for withdrawal of the charges in Case 4-CD-338 was forwarded to
the Board . As it appears that the charges in case 4-CD-338 have been
voluntarily adjusted , we grant the request to withdraw the charges in that
case.
211 NLRB No. 116
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately adjacent to the Philadelphia Interna-
tional Airport, Philadelphia, Pennsylvania. Rose
Associates (herein called Rose), which is nominally
one of the Charging Parties herein , is the general
contractor on that project. Rose and Carpenters are
parties to a collective-bargaining agreement pursuant
to which employees represented by the Carpenters
have been employed on the Sheraton project since its
commencement.
Volume Industrial Procurement (herein called
VIP), a division of Jutras and Nicholson Associates,
was retained by Sheraton to purchase all new
furniture and other interior decorations which were
to be placed in the new Sheraton Airport Hotel and
to arrange for the delivery to and placement of those
materials at the jobsites.
On November 1, 1973, Murphy Global submitted a
written bid to VIP in which Murphy Global offered
to arrange for the delivery of the new furniture to the
Sheraton jobsite and to place the new furniture in the
designated rooms within the hotel. On January 3,
1974, VIP accepted the aforesaid bid in accordance
with the precise terms initially offered by Murphy
Global. The contract stated that Murphy Global
would provide manpower and equipment to receive,
unload , unpack , and uncrate , check for damage,
distribute, and locate in the specific areas within the
hotel all items of furniture, furnishings, and equip-
ment ordered by VIP for delivery to the hotel.
On January 9, 1974, Thomas Murphy, president of
Murphy Global, met with John Anello, a business
agent for the Carpenters, to discuss the movement of
the new furniture into the Sheraton Airport Hotel.
Anello claimed that the movement of the furniture
into the building and its placement in the rooms was
work for Carpenters and claimed this work for his
men. Murphy stated to Anello that he could not give
him an answer until he spoke with his employees'
business agent , Al Woodard, president of Teamsters
Local 513. According to Murphy, Anello threatened
to put up a picket line not only at the Sheraton
Airport Inn but also at the new Hilton Inn being
built near Veterans' Stadium.
Murphy spoke with Woodard and reported back to
Anello that Woodard claimed the work for the
Teamsters and that Murphy Global should complete
the work for which he had contracted using its own
employees.
On January 10, 1974, Murphy, Bob Latimer, a
commercial salesman for Murphy Global, and
Anello were present at the construction site when the
furniture began to be unloaded by members of
Teamsters Local 513. Anello went around and talked
to the building trades employees. Murphy and
Latimer heard Anello tell one crew: "We have a
question of who's going to handle the furniture." The
tradesmen stopped working and gathered on the first
floor. A picket line was set up by some of these
employees, and one of the pickets was identified as
Mr. Durkin, a Carpenters business agent.
Murphy Global continued to unload the furniture
and took items upstairs to be placed in a room. At
this point the supervisor of the general contractor,
Rose Associate, informed Murphy that the building
was not yet secure and that it would not be safe to
leave the furniture in the room. Murphy ordered the
furniture backloaded and the truck removed from
the premises . As soon as the truck left, Murphy said
that the picket line dispersed and that the building
trades employees went back to work.
B. The Work in Dispute
The work in dispute is the "delivery to and
placement of furniture in, including removal of
resulting rubbish, rooms of the Sheraton Airport
Hotel, Airport Circle, Philadelphia, Pennsylvania."
C. The Contentions of the Parties
The Charging Party contends that the work is
properly assigned to its employees represented by
Teamsters Local 513 because of their skills in
handling furniture and equipment incidental to its
safe and efficient movement; their familiarity with
the color codes which identify the locations in which
the furniture is to be placed; the ability to identify
responsibility for damage where only employees
represented by Teamsters Local 513 unload and
place the furniture for the moving and storage
company; the problems associated with insurance
coverage if other employees unload and place the
furniture; and its contract with Teamsters Local 513
relating to the assignment of such work . Several
members of the Association testified with respect to
their practice of using Teamsters Local 513 repre-
sented employees to perform the unloading and
placing of new furniture. The Charging Party claims
a broad determination is warranted because the
timing of furniture movers is critical and cannot be
interrupted by ad hoc determination of work assign-
ments.
Carpenters claims the work based on a purported
agreement with Teamsters Local 513 whereby all
new furniture would be unloaded and placed by
Carpenters and a provision in the contract between
the Association and Teamsters Local 513 whereby
such disputes are to be resolved between the Unions.
The Carpenters also cite area practice and their skills
in moving furniture and handling equipment inciden-
tal to such movement and placement.
METROPOLITAN DISTRICT COUNCIL OF PHILA., CARPENTERS 979
D. Applicability of the Statute
Before the Board may proceed to the determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that (1) there is reasonable cause
to believe that Section 8(b)(4)(D ) has been violated,
and (2) the parties have not agreed upon a method
for the voluntary adjustment of the dispute.
The parties in Case 4-CD-337 have submitted no
evidence that they have adjusted or agreed upon any
method for the adjustment of the present work
dispute.
As to a violation of Section 8(b)(4)(D), Respondent
threatened to picket if the assignment of the disputed
work were not changed from Teamsters Local 513 to
Carpenters. On January 10, a Murphy Global truck
loaded with new furniture being delivered from the
Murphy Global warehouse to the hotel was at the
hotel site . Anello was present and spoke to employ-
ees in the building trades who stopped their work.
Picketing with signs protesting Murphy Global's
destruction of area rates then ensued, the signs
identifying Carpenters District Council as the pro-
testing union . We find reasonable cause to believe
that Carpenters induced and encouraged employees
in the building trades to refrain from work on
January 10, at the hotel site,witlh anlobject of forcing
and requiring Murphy Global to assign the disputed
work to members of the carpenters rather than to
members of Teamsters Local 513. As such conduct
clearly falls within the proscription of Section
8(b)(4)(D) of the Act, we find that the dispute is
properly before us for determination under Section
10(k) of the Act.
We find that at the time of the instant dispute there
did not exist any agreed-upon or approved method
for the voluntary adjustment of the dispute to which
all parties to the dispute are bound. Accordingly, we
shall proceed to a determination of the merits of the
dispute.
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 various factors .4 The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on common sense and
experience reached by balancing those factors
involved in a particular case.5
1. The collective-bargaining agreements
Murphy Global is an employer in the moving and
4 N. L.R. B. v. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573.
storage industry of the Greater Philadelphia Vicinity
and is party to a multiemployer collective-bargaining
agreement between the Association and Local 513.
The effective period of the current collective-bar-
gaining agreement extends from May 1, 1971, to
April 30, 1974. There is no collective-bargaining
agreement between Murphy Global and the Carpen-
ters nor is there any such agreement between other
members of the Association and the Carpenters.
None of the members employs Carpenters in their
normal course of business.
The collective-bargaining agreement between the
Association and Teamsters Local 513 contains in
article I "Recognition", a description of the bargain-
ing unit work:
(c) Bargaining Unit work includes packing,
unpacking, crating, handling, loading, unloading,
handling in warehouses and transporting of
household goods, the contents of commercial
establishments or other commercial work, wheth-
er or not these goods or contents are new or used,
and whether or not they have been moved by the
employer from their original location or from the
warehouse or were received from another carrier
or another mode of transportation. The entering
of newly constructed buildings or a building
under construction and the placing of goods or
contents inside such building at their final resting
place shall be Bargaining Unit work.
The Carpenters does not have any collective-
bargaining agreements which specify that the han-
dling of new furniture is Carpenters work. The great
majority of all carpenters are employed either by
members of the Greater Building Contractors Asso-
ciation or by independent employers that sign the
General Building Contractors Association agree-
ment. This agreement does not cover furniture
handling.
The agreement between Murphy Global and VIP
specifically states that Murphy Global is "to receive,
unload, unpack and uncrate, check for damage,
distribute and locate in the specified areas within the
Hotel all items of furniture, furnishings and equip-
ment ordered by Volume Institutional Purchasing,
Inc., for delivery to the Hotel in accordance with the
following conditions...."
The contract does not require that Murphy Global
hire members of Teamsters Local 513, but it
specifically says that Murphy Global will employ
only union workers wearing Murphy Global uni-
forms. Since all employees of Murphy Global are
5 International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by Teamsters Local 513, assignment of
the work covered by this contract to members of the
Carpenters would be in violation of the existing
collective-bargaining agreement to which Murphy
Global is a party.
Based on the valid collective -bargaining agreement
between the Association and Teamsters Local 513
and the lack of a similar agreement with the
Carpenters , this factor tends to favor the assignment
of the contract work to employers represented by
Teamsters Local 513.
2. Company, industry, and area practice
The members of the Association have assigned all
phases of their moving operation to their own
employees , all of whom have been represented by
Teamsters Local 513 ever since the formation of
Teamsters Local 513, or since the organization of the
members' employees by Teamsters Local 513,
whichever was later . Thomas Murphy, president of
Murphy Global, testified that this practice is consist-
ent with practice across the country.
The Carpenters introduced a list containing in
excess of 110 major construction projects on which
they satisfactorily performed the work at issue over
the past 20 years . Therefore, the Carpenters contends
that the record amply demonstrates that the area
practice for the unloading and placement of new
furniture on construction projects is to assign such
work to the Carpenters.
The record shows that the work of unloading
trucks and placing new furniture in new buildings or
buildings under construction is apparently per-
formed by employees represented by three labor
organizations in the Greater Philadelphia area. When
furniture is supplied by a dealer under contract to
Teamsters Local 107, those employees are likely to
perform the work. Where furniture is delivered to the
site by a moving and storage company, the work is
likely to be performed by employees represented by
Teamsters Local 513. Where the owner of the
building or contractor is responsible for the furniture
unloading and placement , it is likely to be performed
by employees represented by Carpenters. Carpenters
does not claim the unloading and placement of used
furniture ; nor do they claim the work delivering new
furniture or removing rubbish.
There appears to be a mixed practice in the
Philadelphia area involving the unloading of furni-
ture from outside carriers; however , there is a
consistent practice throughout the Philadelphia
vicinity that , when a member of the Association is
under contract to unload , carry, and place new
furniture at a new construction or renovated site,
that work has been assigned to and performed by the
employees of the member, employees represented by
Teamsters Local 513 . Thus , the past area practice
appears to favor an award of the work in dispute to
employees represented by Teamsters Local 513.
3. The skill, efficiency, and economy of
operation
There have been changes in the furniture industry
which have resulted in the need for more skilled and
better trained employees in the moving industry in
recent years . In the past , it was an accepted furniture
industry practice that expensive furniture would be
crated prior to leaving the factory and would remain
in the crate until placed in its final resting place so
that no damage would be incurred in transit.
However , more recently even valuable furniture has
been shipped "blanket wrapped ." These shipments
arrived by truck instead of by train at either the
jobsite or warehouse of the moving company and are
not protected by anything more than polyethylene
covers.
The employees involved in moving new commer-
cial furniture, therefore , must be highly skilled and
have extensive knowledge of the use of a variety of
equipment , of handling delicate furniture, and of
building functions and furniture construction. This
work frequently involves the handling of special
items that because of their size , weight, or special
construction require unusual treatment . There is a
variety of equipment used by skilled movers. `These
"tools" in the moving trade , include the hump strap,
magnesium board , two-wheel dolly, four-wheel dolly,
six-wheel dolly, roller lift, Johnson , bar, executive
box, and a variety of handtrucks . The mere presence
of these items does not guarantee success, as the
skilled moving man has gone through a period of 6 to
9 months of training to learn how and when to use
this equipment and how to move it with its load in an
efficient and damage-free manner.
The efficiency of a mover 's employees is a very
significant factor. Therefore, in order to improve
efficiency , the moving industry has devised several
methods of increasing the efficiency of its operations.
One of these methods is the use of the sophisticated
equipment noted above , which has been developed
over the years in the industry.
A second method is the color coding of furniture so
that individual 'truckloads may be delivered to the
jobsite and unloaded to specific floors or areas in a
fast and efficient manner . The color coding immedi-
ately informs any employee handling a piece of
furniture , who is familiar with the systems , exactly
where it belongs and the route by which it should be
carried. When other employees unfamiliar with the
system are assigned to handle the furniture, the
METROPOLITAN DISTRICT COUNCIL OF PHILA., CARPENTERS 981
placement system is unworkable and additional
supervision must be used to coordinate the move as
well as to relocate furniture which has been pTiaz-
ardly located.
The record also reveals that the members of the
Association in utilizing their own employees in all
phases of the delivery, unloading, carrying, and
placing operation thereby avoid a variety of prob-
lems relating to insurance and liability required by
each contract. The moving companies provide not
only insurance covering the furniture but also
liability insurance covering damage, among other
things, to the building. The insurance carrier issuing
insurance to the moving company contemplates that
the company's own employees, skilled in their trade,
will handle the entire operation contracted for.
Therefore, any change from the company's employ-
ees to the employees of another employer or different
trade would require a visual inspection of each piece
of furniture being unloaded to determine the extent
of any damage for which the company might be
liable. As a result fragmentization of the moving
operation would occur resulting in further inefficien-
cy.
The Employer has indicated that its well-estab-
lished practice of assigning the disputed work to its
own employees, represented by Teamsters Local 513,
has been totally satisfactory. Moreover, from an
efficiency standpoint, it has proved to be beneficial
to the Employer to employ a regular crew of
furniture movers to perform the disputed work.
Under the foregoing circumstances, it appears that
the assignment of the disputed work by the Employer
to its own employees, represented by Teamsters
Local 513, is clearly the most efficient manner of
operation.
Conclusion
Upon the entire record in this case, and after full
consideration of all relevant factors involved, we
conclude that the Employer's (Murphy Global)
employees, who are represented by Teamsters Local
513, are entitled to perform the work in dispute. We
reach this conclusion based on the Employer's past
practice of assigning the disputed work to its own
employees and the fact that the assignment is in
agreement with the existing contract; the assignment
is consistent with the practice of area movers; the
Employer's employees possess the necessary skill and
experience to perform the work and their work has
been totally satisfactory; and such assignment will
result in greater efficiency. We shall, therefore,
determine the dispute before us by awarding the
work in dispute, the delivery to and placement of
furniture in, including removal of resulting rubbish,
rooms of the Sheraton Airport Hotel, Airport Circle,
Philadelphia, Pennsylvania, to the Employer's em-
ployees represented by Teamsters Local 513 but not
to that Union or its members. In accord with our
customary practice, our present determination is
limited to the particular controversy which gave rise
to this proceeding.6
Accordingly, we find that Carpenters is not
entitled, by means proscribed by Section 8(b)(4)(D)
of the Act, to force or require the Employer to assign
the disputed work to members represented by that
labor organization.
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 makes the
following Determination of Dispute:
1. Employees of Murphy-Global Moving & Stor-
age, Inc., who are represented by Local 513,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are entitled
to perform the work in dispute, specifically: The
delivery to and placement of furniture in, including
removal of resulting rubbish, rooms of the Sheraton
Airport Hotel, Airport Circle, Philadelphia, Pennsyl-
vania.
2. Metropolitan District Council of Philadelphia
& Vicinity of the United Brotherhood of Carpenters
& Joiners of America is not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force
or require Murphy-Global Moving & Storage, Inc.,
to assign the above-described work to members
represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Metropolitan District
Council of Philadelphia & Vicinity of the United
Brotherhood of Carpenters & Joiners of America,
shall notify the Regional Director for Region 4, in
writing, whether or not it will refrain from forcing or
requiring Murphy-Global Moving & Storage, Inc.,
by means proscribed by Section 8(b)(4)(D) of the
Act, to assign the disputed work to its members,
rather than to employees of Murphy-Global Moving
& Storage, Inc., represented by Local #513, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America.
6
The request of Charging Party for a broader determination is not
supported by any evidence warranting departure from our customary
practice.