Roofers, Local 115

ROOFERS, LOCAL 115 803 United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, Roofers Local Union No. 115 and Bonitz Insulation Co. of Alabama and/or Chris Fiedler Co., Inc. Case 26-CD-76 January 11, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Chris Fiedler Co., Inc., herein called Fiedler, and Bonitz Insulation Co., of Alabama, herein called Bonitz, alleging that United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, Roofers Local Union No. 115, herein called Roofers, violated Section 8(b)(4)(D) of the Act. Pursuant to notice, a hearing was held before Hearing Officer Jack L. Berger, on August 24, 1970. All parties were represented 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, Bonita and Fiedler, and Roofers filed briefs which we have duly consid- ered. 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. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. BUSINESS OF EMPLOYERS The parties stipulated, and we find, that Fiedler is a corporation, with its principal place of business located at Memphis, Tennessee, where it is engaged in the business of roofing, decking, and siding construc- tion. During the last fiscal year, Fiedler performed services valued in excess of $50,000 onjobsites located in States other than the State of Tennessee. In the same period, it purchased and received directly from points located outside the State of Tennessee goods and materials valued in excess of $50,000. The parties also stipulated, and we find, that Bonitz is an Alabama Corporation with its principal place of business located in Birmingham, Alabama, and is engaged in the business of construction of light concrete insulation. During the past year Bonitz performed services valued in excess of $50,000 outside the State of Alabama. We find, accordingly, that Fiedler and Bonitz are engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assertj urisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, Roofers Local Union No. 115, and Laborers International Union of North America, Local No. 1441, are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The dispute involves the preparation and installa- tion of light weight aggregate vermiculite, called "Zonolite," which is mixed with Portland cement and water to form a lightweight cement mixture and is used as a base for a built-up roof that consists of layers of felt, asphalt, and gravel. The work was being performed at the Treasure Island store in Memphis, Tennessee. The general contractor, Edward J. De Bartelo Corporation, herein called De Bartelo, con- tracted with Fiedler to do the roofing work. Fiedler subcontracted the roof structural deck work to Bonitz. To perform the work in issue, Bonitz had assigned two employees who were represented by the Laborers to load bulk cement and Zonolite into a hopper on the ground and dispose of the empty bags; an employee represented by the Operating Engineers was assigned to operate the hopper and pump which forces the mixture through a hose to the top of the building; two employees represented by the Laborers were assigned to the top of the building to hold and move the hose around to desired locations; and two employees, represented by the Cement Masons, were assigned the task of skreeding and finishing the mixture.I Bonitz, although based in Birmingham, generally transports its crew to the jobsite, and occasionally supplements its laborers with local workers. Current- ly, Bonitz does approximately 30 percent of the Zonolite roof deck work in the Memphis area. It performed 50 percent of such work prior to the entrance of Fiedler into this field in December 1969. The Roofers placed a picket on the Treasure Island job at approximately 3:30 p.m. on June 8, 1970. The I The mixture hardens in approximately 4 to 7 days, and the built-up roof is added 187 NLRB No. 113 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picket sign was a notice to the public that Chris Fiedler Roofing Co., was unfair to Roofers and was paying substandard wages. Fiedler contacted Haw- kins, the business agent of Roofers, about the picketing. Hawkins told Fiedler that the picketing was because Fiedler had subcontracted the work to a contractor that did not pay the wages of the Roofers. On June 9, Fiedler had a conversation with Nash, who was De Bartelo's superintendent of all operations. Nash related his conversation with Hawkins in which they made a deal that Bonitz wouldn't go back on the job and Hawkins would not put up a picket. Thereafter, Ross, De Bartelo's superintendent of the Treasure Island job, told Campbell, superintendent for Bonitz, to pull off the job because Hawkins was going to shut thejob down if Bonitz stayed on the job. Bonitz left the job on June 9 and returned to Birmingham for approximately 2 weeks. B. The Contentions of the Parties Fiedler and Bonitz contend that the Roofers placed a picket at the jobsite of the Treasure Island store for the purpose of forcing Fiedler and Bonitz to employ Roofers. Fiedler and Bonitz also contend that the work should be awarded to members of the Laborers because (a) of a prior Board case 2 in which the Board awarded similar work to the Laborers, (b) they possess the required skills, (c) company, area, and industry practice favors the laborers, (d) efficiency and cost of operation favors assignment to laborers, (e) Employers have already assigned the work to laborers, and (f) there is no agreement between Employers and Roofers covering installation of Zonolite. The Roofers contend that the issue is moot because the job has been completed, picketing only lasted 30 minutes and there was no work stoppage,3 and there was no violation of Section 8(b)(4)(D) because the sole purpose of the picketing was to preserve the validity of a specific clause in the contract between Roofers and Fiedler.4 The Roofers also contend that the disputed work involves roof deck insulation which is specifically covered by the Roofers' contract with Fiedler.5 C. Applicability of the Statute Before the Board may proceed with the determina- tion of a dispute pursuant to Section 10(k) of the Act, 2 Roofers Local Union No 115 (Bonitz Insulation Company of Alabama), 168 NLR B 756. 3 Fiedler simultaneously filed a charge against the Roofers, Case 26-CC- 197, which was settled and disposed of by withdrawal of the complaint and notice of hearing 4 Article 1 , "If this agreement or any portion thereof is waived by the Union in respect to one or more Roofing Contractors, such action will constitute a waiver to all other Roofing Contractors , who are signatory to the agreement " it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. As shown above, the Roofers placed a picket on the Treasure Island job on June 8, 1970, with a sign indicating that Fiedler was unfair to Roofers and was paying substandard wages. Fiedler was informed by De Bartelo that a deal was made between De Bartelo and the Roofers that Bonitz wouldn't go back on the job and the Roofers wouldn't put up a picket. Thereafter, on June 9, 1970, Ross, De Bartelo's superintendent, told Campbell, superintendent for Bonitz, to pull off the job because the Roofers were going to shut the job down if Bonitz stayed on thejob. Bonitz left the job and returned to Birmingham and was off the job for approximately 2 weeks. Accordingly, we find that there is reasonable cause to believe that violations of Section 8(b)(4)(D) have occurred, and that the dispute is properly before the Board for determination under Section 10(k) of the Act. D. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various relevant factors.6 1. Certification and collective-bargaining agreements There is no Board certification governing the disputed work so that the claims of the Roofers and the Laborers are unaffected by this factor. As for bargaining agreements, Fiedler has a contract with the Roofers which runs through March 31, 1971. Bonitz has no contract with the Roofers. The Laborers do not have agreements with Fiedler or Bonitz or any roofing contractors. The Roofers claim that the disputed work involves the roof deck insulation, and that such work is specifically named and covered by its contract. Although article II of the Roofers' contract specifically refers to the installation of all roof deck insulation, there is no reference to Zonolite in such agreement. Moreover, the record indicates that Zonolite is a lightweight concrete mixture which serves as a foundation or structural deck upon which the roofing and weather proofing materials are placed. Accordingly, we find that under the circumstances there is no agreement favoring the 3 Article 11 , "The terms of this agreement are hereby recognized and accepted as binding on both parties hereto and shall apply in the manner and under the conditions specified herein to the application and installation of any and all kinds of all roof deck insulation 6 N L R B v Radio and Television Broadcasting Engineers Union, Local 1212, et at (Columbia Broadcasting System), 364 U.S. 573, International Association of Machinists, Lodge No 1743, AFL-CIO (JA Jones Construction Company), 135 NLRB 1402 ROOFERS, LOCAL 115 assignment of the disputed work to either the roofers or the Bonitz employees represented by the Laborers. 2. Company and industry practices The record reveals that Bonitz and Fiedler perform between There is testimony that Bonitz has performed roof deck applications in seven States and that it has always employed laborers to perform the work in dispute and that it has never had a roofer on its payroll. The record also contains evidence that one of the first Zonolite applicators in the six Southern States area, Vermiculite Contractors, Inc., also used laborers to perform the work in dispute from 1953 to 1962. Moreover, the area practice in Memphis is to assign the work to the laborers. Chris Fiedler testified that he had contacted other Zonohte applicators throughout the country and they all used laborers, and that when Fiedler started in the Zonolite business, it assigned the disputed work to the roofers on the first job it started, but that the roofers refused to do the work after working for only a day. Thus, company, area and industry practice is a factor supporting an award to the laborers. 3. Relative skills, economy, and efficiency of operations Although the Roofers contend that they work on places that are high, near the edges of buildings, and this gives them the greater skill to do the work in the area required, the record fails to support this contention, or that the laborers do not possess the required skills. As Bonitz does not employ roofers but does employ members of the Laborers and sends them out from Birmingham to various jobs in other States, its efficiency would be increased if it retained laborers to the same work on all jobs. Since the laborers have performed the work in dispute to the satisfaction of Bonitz and Fiedler, this is an additional factor supporting assignment of the disputed work to employees represented by the Laborers. 4. Gain or loss of employment The Roofers contend that the work in dispute was in Memphis, the assignment was originally made to roofers in Memphis, that it was later assigned to laborers from Birmingham, and that such assignment will reduce available employment for the roofers. However, as the record evidence clearly indicates that the laborers have always performed the work in dispute for Bonitz, and as the prevailing practice has 805 been to assign such work to the laborers, an assignment of the disputed work to the roofers would clearly result in a loss of work to the laborers. Conclusion Having considered all pertinent factors, we con- clude that employees of the Employers represented by the Laborers are entitled to perform the disputed work. Roofers has adduced no significant evidence in support of its claim whereas the record demonstrates forcefully that numerous relevant and material factors support the existing performance of the work by Bonitz and Fiedler's employees represented by the Laborers. Our determination hereunder is limited to the particular controversy which gave rise to this proceeding. In making this determination, we are assigning the disputed works to laborers who are represented by the Laborers, but not to the Laborers or its members. 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 proceeding, the National Labor Relations Board hereby makes the following determination of dispute: 1. Employees employed by Bonitz Insulation Company of Alabama, and Chris Fiedler Co., Inc., and represented by Laborers International Union of North America, Local 1441, are entitled to perform the disputed work of loading bulk cement and Zonolite into a hopper, disposing of the bags, and holding and moving of the hose to desired locations in the spreading of the mixture on the roof structural deck on the Treasure Island jobsite located in Memphis, Tennessee. 2. United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, Roofers Local Union No. 115, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force Bonitz or Fiedler to assign any such disputed work to roofers represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Slate, Tile and Composition Roofers, Damp and Waterproof Work- ers Association, Roofers Local Union No. 115, shall notify the Regional Director for Region 26, in writing, whether it will refrain from forcing or requiring the Bonitz Insulation Co., of Alabama and/or Chris Fiedler Co., Inc., by means proscribed in Section 8(b)(4)(D), to assign the disputed work to its members rather than to employees represented by the Laborers.