Roofers Local Union No. 115

756 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD Roofers Local Union No. 115 and Bonitz Insulation Company of Alabama and F. T. Thayer, General Contractor and Laborers International Union of North America, Local 1441 . Case 26-CD-49 December 8, 1967 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed by Bonitz Insulation Company of Alabama, herein called Employer, or Company, alleging that Roofers Local Union No. 115, herein called Roofers, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Company to assign the work in dispute to the Roofers rather than to Laborers International Union of North America, Local 1441, herein called Laborers. A hearing was held on October 3, 1967, before Hear- ing Officer William B. Kenney. All parties, includ- ing the International Union of Operating Engineers, Local 369, herein called Operating Engineers, and Cement Masons Local No. 521 of the Operative Plasterers and Cement Masons International As- sociation of the United States and Canada, herein called Cement Masons, both of which claimed an interest in the proceeding, participated in the hear- ing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to ad- duce evidence bearing on the issues. Thereafter, the Employer and Roofers filed briefs and Roofers filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated and we find that Bonitz In- sulation Company of Alabama, an Alabama cor- poration, is engaged in the contracting business, primarily in the installation of light concrete insula- tion. During the past fiscal year, it performed ser- vices valued at more than $500,000, of which ser- vices in excess of $50,000 were performed outside the State of Alabama. We find, accordingly, that the Employer is en- gaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that the Roofers and the Laborers, as well as the Operating Engineers and Cement Masons, are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background The dispute herein involves the preparation and installation of a poured roof deck insulation called "Zonolite," which is actually an aggregate mixed with Portland cement (a bonding agent) and water. The following steps are involved in applying this material: First, the bulk cement and bagged Zonolite aggregate are dumped into a hopper on the ground. Then the pump operator, who, all parties concede, is represented by the Operating En- gineers, pulls the materials up through a grain eleva- tor to a mixer where it is mixed and pumped through a hose to the top of the building, poured onto a precast concrete structural roof base, and sealed. The depth of the insulation is determined by a screed bar set at a specific elevation. The finishers, conceded by all parties to be represented by the Cement Masons, use this bar to screed the Zonolite to the proper thickness, finishing the insu- lation. After the insulation has set for a few days, the structure is made watertight by the installation of a built-up roof of base sheets of felt, asphalt, gravel, and tar. It is not disputed that such work is performed by the Roofers, who of necessity are em- ployed by other contractors, because the instant Employer is not engaged in that phase of the roofing business.'Accordingly, the instant dispute is limited to the pouring of the raw materials into the hopper; the mixing of the Zonolite, Portland cement, and water; pouring the mixture through the hose onto the roof base; and sealing the joints, all of which has been assigned to laborers by the Company. The Company has a crew of two cement masons, one operating engineer, and a few laborers, all from Birmingham, where it is based. It transports its crew to any other cities where it performs work. In some locations it must hire local laborers to supple- ment its crew. In 1967 the Company first did work in Memphis, the site of the instant controversy. In February and April 1967, it worked with its Bir- mingham crew at two jobsites in Memphis, and in April the Roofers claimed the work performed by the laborers. The Company returned to Memphis in August 1967 to work for F. T. Thayer, General Contractor, pouring the Zonolite roof insulation at 168 NLRB No. 102 ROOFERS LOCAL the Wooddale High School. The Company again brought its permanent crew , supplemented with members of the Memphis Laborers Local. On August 1 the Roofers placed a picket on the jobsite from 4:30 to 5 p .m. with a sign stating that nonunion roofers were employed on the project. On August 2 , the picket reappeared from approximate- ly 7 to 7:45 a.m_ with a similar sign. While no one on the -jobsite left work, workers reporting to the jobsite refused to cross the picket line. The Em- ployer, after some of its material had been damaged, called Hawkins, the Roofers' business agent, to work out a compromise whereby the Company would supplement its permanent crew with local roofers rather than laborers. Hawkins refused any such arrangement, indicating that he would not allow Roofers and Laborers to work together. However, the job was finished without further picketing. B. The Contentions of the Parties The Roofers concedes that the purpose of the picketing was to force Board determination of the dispute , and contends that the work should be as- signed to it because (a) of area practice, (b) its col- lective-bargaining agreements cover the disputed work with the only two Memphis firms that do such work, and (c) its members possess the requisite skills. The Employer and the Laborers contend that the laborers should perform the work on the basis of Employer, industry , and area practice, the laborers' possession of the requisite skill , and the Employer's assignment of the work to them. C. The Applicability of the Statute The charges herein allege violations of Section 8(b)(4)(D) of the Act. The record shows, and the Roofers concedes , that on August 1 and 2, 1967, the Roofers established a picket at the jobsite to support its claim for the disputed work. On the basis of the entire record, we conclude that there is reasonable cause to believe that a violation of Sec- tion 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination. D. The 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 relevant fac- tors.' ' 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; International Associa- tion of Machinists, Lodge No. /743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402, 1411 UNION NO. 115 757 1. Certification and bargaining agreements The evidence indicates there is no Board certifi- cation relative to the disputed work. With respect to bargaining agreements, the Roofers introduced evidence that it has agreements covering the disputed work with the only two Memphis firms that do such work. However, these contracts do not encompass an assignment of the work here in dispute, as they are not with the Employer involved herein, but with other employers whose assignment of the work is not in issue. Therefore. there is no Board certification or collective-bargaining agree- ment favoring the Roofers. 2. Jurisdictional awards Although not made a part of the record herein, the Roofers in its brief refers to an agreement en- tered into about 2 years ago, whereby all poured roof deck insulation would be performed with a composite crew of one operating engineer, one ce- ment finisher, and the remainder, roofers. How- ever. since neither the Employer nor the Laborers was a party to the agreement, the agreement, even if part of the record, would not be determinative herein.2 3. Company, industry, and area practice The record shows that since the Company was established in 1957, it has always assigned the work of preparing and installing the poured insulation in the Birmingham area to its own employees represented by the Laborers, as it has done in all other cities where it performs the disputed work. When additional men are needed, moreover, the Company always hires laborers. Evidence as to industry practice is inconclusive, since the record reveals that throughout the country there are contractors using laborers to perform the disputed work and others using roofers. Area prac- tice is similarly inconclusive; by weight of numbers alone, it might tend to favor the claim of the Roofers, but in our view this is outweighed by other factors favoring the claim of the Laborers. 4. Skills There is no showing that the disputed work requires skills specifically possessed by the Roofers. On the contrary, the Employer testified that the laborers possessed the skills to perform readily and satisfactorily the work in question. 2 International Union of Operating Engineers, Local 66, AFL-CIO (Frank P. Badolato & Son), 135 NLRB 1392, 1399, 1400 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS AS TO THE MERITS OF THE DISPUTE Having considered all pertinent factors. we con- clude that employees represented by the Laborers are entitled to perform the work in dispute. Laborers and Roofers are equally skilled in the per- formance of the work , and the Company . which as- signed the work to laborers , has been satisfied with the quality of their work. Moreover, the assignment to the laborers is consistent with the past practice of the Company , and is not inconsistent with any otherwise uniform area of industry practice. We conclude that the Employer's assignment of the work to the laborers should not be disturbed. On the basis of the entire record , therefore , we shall determine the existing jurisdictional controversy by awarding to the laborers employed by the Company and represented by Laborers , rather than to in- dividuals represented by the Roofers, the work of preparing and installing the poured roof deck insula- tion. The present determination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE the foregoing findings and the entire record in this case, the National Labor Relations Board makes the following Determination of Dispute: 1. Laborers represented by Laborers Interna- tional Union of North America, Local 1441, and employed by Bonitz Insulation Company of Alabama, are entitled to perform the tasks of dump- ing raw materials into the hopper , mixing them, pouring the mixture onto the roof base , and sealing the joints , in connection with the installation of poured roof deck insulation at the Wooddale High School jobsite in Memphis, Tennessee. 2. Roofers Local Union No. 115 is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Bonitz Insulation Company of Alabama to assign the work in dispute to indu- viduals represented by the aforesaid Union. 3. Within 10 days from the date of this Decision and Determination of Dispute, Roofers Local Union No. 115 shall notify the Regional Director for Region 26, in writing, whether or not it will refrain from forcing or requiring Bonitz Insulation Company of Alabama , by means proscribed by Sec- tion 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination. Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of