Local 54 Roofers

National Labor Relations Board - Board Decisions

Mar 5, 1979

240 N.L.R.B. 1194 (N.L.R.B. 1979)

1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 54 of the United Slate, Tile & Composition
Roofers, Damp and Waterproof Workers Associa-
tion, AFLCIO and Interbay Roofing Co., Inc.
Case 19 CD-311
March 5. 1979
DECISION AND DETERMINATION OF
DISPUITE
BY MtMBIERS JNKINS. MtRPIIY. AND TRI tS[)AI I
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Interbay Roofing Co., Inc.,
herein called the Charging Party, alleging that Local
54 of the United Slate, Tile & Composition Roofers,
Damp and Waterproof Workers Association, AFL
CIO, herein called the Roofers, had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
Relco Insulation, herein called the Employer, to as-
sign certain work to its members rather than to em-
ployees represented by the District Council of Car-
penters, herein called the Carpenters.
Pursuant to notice, a hearing was held before
Hearing Officer Marilyn J. W. Cesarano on August
23, 1978. All parties' appeared and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues. Thereafter, the parties were given an
opportunity to file briefs: however, no briefs were
filed.
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 au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings 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. ll. BUSINeSS oFI 111. IMPI.()Y R
The parties stipulated, and we find, that the Em-
ployer, a California corporation with its principal
place of business in Belmont. California, is engaged
in the business of cold storage insulation contracting.
During the past calendar year, the Employer's gross
volume of business exceeded $500,000, at least
$50,000 of which was derived from the sale of goods
i Baugh Industrial C (ntractors (a1 suhsidiary of Baugh (' nstru ction ('(In-
pan\), the general contraclotlr of the jih insolsved in the dispute. frilnalll
intervened ait the hearing. is an interested parIs
240 NLRB No. 175
and/or performance of services for customers locat-
ed outside the State of California. We find that the
Employer is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and that it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
11II I LAB()KOR ()R(iANIZA II)ONS IN\O()I V 1)
The parties stipulated, and we find, that Local 54
of the United Slate. Tile & Composition Roofers,
Damp and Waterproof Workers Association, AFL
('10, and the District Council of Carpenters are la-
bor organizations within the meaning of Section 2(5)
of the Act.
111 1Ili I)ISPI I 1
A. Background and Facts of the Di.pule
The Employer is a cold storage insulation contrac-
tor. Although it is located in California, it does per-
form work in Seattle, Washington, and over the past
years has averaged two or three jobs each year in that
area. On April 14. 1978.2 it signed a contract with
Baugh Industrial Contractors, Inc., the general con-
tractor for a new shell fish and fresh fish processing
facility at the Washington Fish and Oyster Co., to do
the cold storage insulation.
The parties stipulated that on or about mid-July,
the insulation of thermal styrofoam on the building
located in the construction site was assigned by the
Employer to employees on the jobsite represented by
the ('arpenters: that, on July 20, a representative of
the Roofers demanded that such work tasks be as-
signed to employees represented by the Roofers rath-
er than by the Carpenters: that the Roofers threat-
ened that, in the event the work was not so assigned,
it would picket: and that the Roofers engaged in
such picketing commencing on July 20 and continu-
ing until July 25. at which time they voluntarily
ceased picketing pending resolution of the dispute
before the Board.
B. he Work in Dispute
As clarified at the hearing by agreement of the
parties, the work in dispute involves the application
(incident to roofing operations), of thermal styro-
foam insulation on the building located on the con-
struction site of Washington Fish & Oyster Co., Seat-
tle. Washington.'
All dates hereinafter aire silthll 1978, unlkss indicated olhersise.
Ihtll. the miphiier. the Roofers. and the (Carpenters agreed that the
Ioirk il dispute isvoled onlL roofing insulation, not floor and wall insula-
tiuon s ell. is the noticeO i ll 1(k) hearing stated I[he lmniploser asserted
LOCAL 54, ROOFERS 1195
C. The Contenlions of the Parties
The Employer contends that the work in dispute
should continue to be assigned to employees repre-
sented by the Carpenters with whom it has had a
collective-bargaining relationship for approximately
20 years and to whom it has assigned this work at
previous projects it has had in the Seattle area and at
projects located at various sites throughout the
Southwestern United States. The Employer also as-
serts that the installation of styrofoam insulation on
roofs of cold storage warehouses requires special
skills for which the carpenters have special training.
The Carpenters echoes these contentions.
The Roofers contends that the employees it repre-
sents should be assigned the work in dispute on the
grounds that they have been performing this type of
work in the Seattle area for the past 10 years, and
that the existing practice of area roofing contractors
is to assign this work to roofers. It alleges that the
roofers have the skills and receive training suitable
for performing this type of work.4
Interbay Roofing and Baugh Industrial Contrac-
tors took no position as to which group of employees
should perform the work in dispute.
D. Applicabilit of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable cause
to believe: (I) that Section 8(b)(4)(D) has been vio-
lated and (2) that the parties have not agreed upon a
method for the voluntary adjustment of the dispute.
With respect to (I) above. the parties stipulated
that, on July 20, a representative from the Roofers
demanded that the work in dispute be assigned to the
Roofers and threatened that if the Employer did not
asign the work to the Roofers it would picket the
jobsite. Subsequently, on July 20. the Roofers began
to picket the jobsite. The picketing continued there-
after until on or about July 24 and ceased on July 25,
pending resolution of the dispute by the Board. We
find, therefore, that there is reasonable cause to be-
lieve that the Roofers made threats and engaged in
picketing with an object of forcing the Employer to
assign employees it represents the work in dispute in
violation of Section 8(b)(4)(D).
that the nsulation material nolved should he described as "thermial stsr,-
foam" and the Roofers asserted that the wuork should he described as "incl-
dent to roofing operations," Since these additional description. as request-
ed bh the Fmploer and Rooifers. accuratel\ describe the ork In dlsipulie c
have modified the description of the dispute accordinglk
T he Roofers. the (arpenters, and the tmiploer could not agree n a
sltipulation as to whether there uas ohlltar micans Of adjIusting the d-
pute to which all were paris
With respect to (2) above, the Roofers contract
with the Charging Party states that the Roofers is
bound to submit jurisdictional disputes to the Na-
tional Joint Board for Settlement of Jurisdictional
Disputes.' As to the Carpenters. we take administra-
tive notice of the fact that, since the Carpenters is a
member of the Building and Construction Trades
Department, AFL-CIO. it is a signatory to the agree-
ment creating the IJDB and is bound to abide by its
rules and procedures for settlement of jurisdictional
disputes ' absent evidence to the contrary. -low-
ever. the Employer's contract with the Carpenters
makes no mention of any joint board for resolving
jurisdictional disputes but rather simply makes the
Employer subject to the provisions of the Carpenters'
contract with the Associated General Contractors of
America (AGC). Western and Central Washington
area. That agreement provides for the settlement of
jurisdictional disputes by means "of the two unions
involved" with input from the affected AGC chap-
ter. The Roofers is not a party to that agreement.
ro constitute an agreed-upon method for settle-
ment. a procedure must bind all the parties to the
dispute. including the employer. 8 It is clear that there
is no agreed-upon method for the resolution of this
dispute. While both the Roofers and the Carpenters
.rt. XVI'111 e .Igreemltnl between the Rtoofers a.nd the Roofers ('on-
Ir.ittors \nsoc iatiioi. Sea:ttle. Wa'shington. states. "It is greed hboth pr-
lies th.it in the eent of cnflicts in jurisdictional claims. the procedure of
the N.iiiional Joint Boa.rd for Settlemilent of Jurisdictional Disputes shall
In iew of our determination. mfirt. that the Emploer is not hbound hb the
Imlpartial Jrisldictional [)isputres Bird (IJDB, we find it unnecessar to
deteritline hether the reference b the parties to the National Joint Board
as iltended b the parties to be a reference ) the IJf)B. ( Compare Pipetlr-
itcri lIal :%,. /95, nraed ,4,lwltri, ofJournet men & .4pprenti.es of Plumb-
ir A P'il'liietg Indusrli o 1/le nited Staie.u and ( anlada ( leithind BI reh i-
iit ( intllit, 2 18 Nl RB 172. 174 1(19751 For the purposes of this Decision
.e assume. airSindo. that the Roofers is a party tio the IJDB
PlPeptiter Local 195. iprta
Xri. 12 of the Carpenters contlracl with the A(i( states
Section 1. If a jurlsdlctional dispute arises. It shall first be submitted
to the ltcal 'nilons Inll ed and the affected NG( chapter for settle-
menlt. then if no understanding olr agreement is reached with 1481 hours.
it shall be refered to the tl, International Representatlses and theN
sh.ll confer with the affected A (.( Chapter for settlement Pending
such settlement. the craft performing the work at the time the dispute
arirses hall continue In such capacit. until settlement has been reached
is aho e pro) ided
Scction 2 Assignment of work shall he goerned hb decisions ,of
record .rea pracl. .Iand intcrn.linalljurlsdlctilonal ;agreements ('raft
jurisdiction is neither determined nor awarded b classifications ap-
pearinig n an A ( C \greemnents
In the same contract in which the Fmployer agreed to be bound hs the
estcerl and ('enltral Washinglon A(i agreement for the purpose f soN-
ig jurlisdicininal disputes. tt a.l so agreed to he bound bh the teriis f other
('arpelnters agreements These other agreements were agreements cioscring
other geographical areas. e.g. Seattle Master Builders Association. the
lotme Builders A,scociation f Greater Tacoma. the H me Builders Associ-
atlion f (ireater Olnmpia. and the Home Builders Association of Kitsap
('iountIs here is nothing (o indicate that the jurisdictional dispute settle-
niet prols ilns in those agreements differ materialls from the AC agree-
men(t coering the Western and ('entral Washinigin irea.
8 I R B Phlaiitrers 1. al t .ii A 'Q. Opeiraile Pliererx' and (
lntl Ilas,,o' InternailoIo/ 4,iin AI. (10 44 rS 116 1971)
LOCAL 54, ROOFERS I
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appear to be bound to the IJDG, the Employer is not
bound to resolve work disputes through this proce-
dure; and since the Roofers is not subject to the ju-
risdictional dispute procedure appertaining to the
Carpenters and the Employer, there exists no juris-
dictional dispute machinery to which all are bound.
Accordingly, we find that this dispute is properly be-
fore the Board for determination under Section 10(k)
of the Act.
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.9 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing those
factors involved in a particular case.' °
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements and Board
certifications
The Employer has a compliance agreement with
the Carpenters which incorporates by reference the
provisions of the collective-bargaining agreement of
the Associated General Contractors of America,
Western and Central Washington area. Article 2 of
that agreement, entitled "Work Affected," provides
that "This agreement cover all . . . Building . . .
Projects" and that "the term Building shall mean a
building structure, including modifications thereof.
or additions or repair thereto, intended for use for
shelter, protection, comfort." We find that the work
in dispute herein comes within the meaning of this
provision.
The Roofers has no collective-bargaining agree-
ment with the Employer. We therefore find that this
factor favors the award of the disputed work to em-
ployees represented by the Carpenters.
2. Employer and area practice
For the past 20 years the Employer has assigned
the work in dispute on projects throughout the
9N.LR.B. v. Radio & Television Broadcast Engineers Union. Locul 1212.
International Brotherhood of Electrical Workers. FL ClO I('olumbia Broad-
casting System]. 364 U.S. 573 (1961).
International Association of Machinists, Lodge No. 1743, AI. ( 10 (J
A. Jones Construction Company). 135 NLRB 1402 (1962).
I There is no indication that either labor organization cncerned herein
has been certified by the Board as the collective-bargaining representative
for a unit of the Employer's employees.
Southwestern United States and in the Seattle area to
carpenters. Thus, the Employer's practice favors an
award to this group of employees.
For approximately 10 years roofers have been as-
signed the work in dispute by other insulation con-
tractors in the Seattle area. Carpenters have also re-
ceived such assignments from other area contractors,
thus, both groups of employees perform the work in
dispute in the same geographic location. Therefore
the factor of area practice favors neither group.
3. Economy and efficiency and related skills
Both roofers and carpenters possess the special
skills, ability to use particular tools, and knowledge
of techniques, e.g., application of particular adhe-
sives, to enable them to perform the disputed work.
Therefore this factor favors neither group.
The Employer contends that carpenters possess
more experience than roofers in performing the work
in dispute and thus can complete the job more quick-
ly thereby making for greater economy and efficien-
cy. However, there is no evidence to support this
contention. Accordingly, we find that these factors
favor neither group.
4. Awards
Evidence was presented of various jurisdictional
dispute determinations relating to awards of work
similar to the work in dispute. However, this evi-
dence was insufficiently clear as to the circumstances
of these awards to have any probative value. Accord-
ingly, we find this factor favors neither party.
5. Employer's assignment and preference
The Employer assigned the work in dispute to and
prefers that it be performed by employees repre-
sented by the Carpenters. These factors favor assign-
ment of the work to the employees represented by
the Carpenters.
Conclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that employees who are represented by the District
Council of Carpenters are entitled to perform the
work in dispute. We reach this conclusion relying on
the collective-bargaining agreement, employer prac-
tice, assignment, and preference. In making this de-
termination, we are awarding the work in question to
employees who are represented by the Carpenters,
but not to that Union or its members. The present
LOCAL 54, ROOFERS 1197
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 pro-
ceeding, the National Labor Relations Board makes
the following determination of dispute:
I. Employees of Relco Insulation, who are repre-
sented by The District Council of Carpenters, are en-
titled to the work of applying styrofoam insulation to
the roof of the building at the construction site of
Washington Fish & Oyster Co., at 1120 West Ewing
Street, Seattle, Washington.
2. Local 54 of the United Slate, Tile & Composi-
tion Roofers, Damp and Waterproof Workers Asso-
ciation. AFL-CIO. is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force or
require Relco Insulation to assign the disputed work
to employees represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 54 of the
United Slate. Tile & Composition Roofers, Damp
and Waterproof Workers Association, AFL-CIO,
shall notify the Regional Director for Region 19. in
writing, whether or not it will refrain from forcing or
requiring the Employer, by means proscribed by Sec-
tion 8b)(4)(D) of the Act. to assign the disputed
work in a manner inconsistent with the above deter-
inination.
determination is limited to the particular controvers' 1197