Asbestos Workers Local 19

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Asbestos Workers Local 19 and Christiansen Foam Corporation and United Slate, Tile and Composition Roofers, Damp & Waterproof Workers Association, Local No. 65. Case 30-CD-26 II THE LABOR ORGANIZATIONS INVOLVED The Asbestos Workers and the Roofers are labor organizations within the meaning of Section 2(5) of the Act. February 18, 1971 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Christiansen Foam Corporation, herein called CFC or the Company, alleging that As- bestos Workers Local 19, herein called Asbestos Workers or Respondent, has violated Section 8(b)(4)(D) of the Act. A hearing was held before Wil- liam F. Jacobs, Hearing Officer, on October 13, 22, and 23, 1970. The Company, the Asbestos Workers, and United Slate, Tile and Composition Roofers, Damp & Waterproof Workers Association, Local No. 65, herein called the Roofers, 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. 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. Briefs have been filed by the Company and the Asbestos Workers. No brief has been filed by the Roofers. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANY The Company, a Wisconsin corporation with facili- ties located in Milwaukee, Wisconsin, and Grand Rapids, Michigan, is engaged in the application of sprayed-in-place polyurethane foam. During the year preceding the hearing the Company purchased goods and materials valued in excess of $50,000, which were shipped to it from points outside the States of Wiscon- sin and Michigan. We find that the Company is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. III THE DISPUTE This proceeding arises out of a dispute concerning a work assignment made by the Company to apply polyurethane foam to an air-conditioning duct locat- ed on the roof of the Joseph Schlitz Brewing Compa- ny in Milwaukee, Wisconsin. A. Background CFC is a wholly owned subsidiary of Christiansen Roofing Company, a roofing contractor whose em- ployees are represented by the Roofers. In August 1970 CFC secured a contract to insulate air-condi- tioning ducts in a building of the Schlitz Brewing Company. Urethane foam is a new material which is being used more and more extensively for a variety of purposes, including insulation. It is applied with a spray gun. CFC.used employees of the Roofing Company who are members of the Roofers to apply the foam insula- tion material. When Lemminger, Respondent's bus- iness agent, learned of this fact, he contacted Zellmer, the Roofers business agent, and Green, a vice presi- dent of the Roofers International, to protest that members of the Roofers were doing work which was within the jurisdiction of Respondent. Lemminger and Zellmer agreed to visit the jobsite to determine if the former's jurisdictional claim was well founded. Meanwhile Vice President Green called CFC's president, McNamara, to tell him of the jurisdictional problem and to suggest that McNamara get in touch with Lemminger. McNamara telephoned Lemminger and asked the latter for a work permit for his two employees on the brewery project so that they could continue the work. Lemminger refused the request. According to McNamara, in this telephone conversa- tion, Lemminger further stated that CFC was "invad- ing the jurisdiction of the Asbestos Workers and that unless our men were withdrawn from the project that morning he would... picket the job site." Lemminger unequivocally denied that he had made any such threat. Later in the morning of the same day, August 14, Lemminger and Zellmer visited the jobsite and, after observing the work being done, Zellmer informed his union members that the work of spraying urethane foam on the ducts was not within the jurisdiction of the Roofers and the men would have to stop work. The employees then left the jobsite and returned to 188 NLRB No. 90 ASBESTOS WORKERS LOCAL 19 the Company's plant. However, later that day Zellmer and McNamara decided that the men could return to the job to finish the work, which they did. About 5 p.m. of the same day, Lemminger, Zellmer, McNam- ara, and Heon, the Company's attorney, met on the jobsite to discuss the jurisdictional problem. Lem- minger explained why, in his opinion, the work of spraying urethane foam on ducts was within the juris- diction of the Asbestos Workers. Heon told Lem- minger to picket the job if he felt that way. Lemminger rebuffed the suggestion saying that he had no reason to picket. The job was not picketed. The Company completed the entire project without further incident. Subsequently, Lemminger brought the dispute to the attention of the president of the Asbestos Workers International who in turn complained to the president of the Roofers International. The latter then advised the former that the Roofers did not claim the disputed work and recognized that it belonged to the Asbestos Workers. The two unions also submitted the dispute to the National Joint Board for the Settlement of Jurisdictional Disputes, although the Company re- fused to participate on the ground that it did not recognize the Joint Board's jurisdiction. The Joint Board decided that the work of insulating the air- conditioning ducts belonged to the Asbestos Workers on the basis of trade practice. At the hearing herein, the Roofers disclaimed any right to the work in dis- pute. However, the employees who had actually done the work indicated that they would like to continue doing such work in the future. B. Contentions of the Parties The Company contends: (a) A prima facie case of violation of Section 8(b)(4)(D) has been established based on two facts: (i) Lemminger threatened Mc- Namara with picketing; and (ii) a work stoppage, brought about by Lemminger, occurred. (b) A juris- dictional dispute exists notwithstanding the formal disclaimer of the Roofers International Union. (c) The determination of the Joint Board is irrelevant for the Company was not a party to nor bound by that determination. (d) The disputed work should be as- signed to the employees of CFC. Respondent contends: (a) At no time did it engage in conduct in violation of Section 8(b)(4)(i)(ii)(D) of the Act. (b) Since both the Respondent and the Roof- ers are bound by the procedures of the Joint Board, the National Labor Relations Board has no jurisdic- tion to determine the merits of the dispute. (c) Inas- 571 much as the Roofers has disclaimed any right to the disputed work, there is no jurisdictional dispute exist- ing within the meaning of Section 8(b)(4)(D) of the Act. (d) On the merits, the disputed work should be awarded to employees represented by the Asbestos Workers. C. Applicability of the Statute Before the Board proceeds with a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is a reasonable cause to believe that Section 8(b)(4)(D) has been violated. We are not satisfied that such cause exists in this case. The Company rests its contention that a violation of Section 8(b)(4)(D) occurred in large part on the uncorroborated testimony of Company President McNamara that in a telephone conversation with Business Agent Lemminger, the latter threatened to picket the jobsite unless Respondent's jurisdictional claims were met. However, McNamara's testimony was denied by Lemminger. The latter's denial is sup- ported by the facts that picketing did not occur, Lem- minger denied any intention to picket when invited by Company Attorney Heon to do so, the employees performing the disputed work testified that Lemming- er had not threatened them or asked them to cease working, and the CFC employees were permitted to complete their work. As to Respondent's contention that a work stoppage did occur, this was caused not by Lemminger but by Roofers Business Agent Zellm- er who told his members to discontinue working until he could ascertain whether they were performing work which came within the jurisdiction of Respon- dent.' Under these circumstances, we deem the record evidence too insubstantial to support the necessary finding that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. We therefore conclude that the Board is without authority to determine this dispute and shall quash the notice of hearing issued herein.' ORDER It is hereby ordered that the notice of hearing issued in this case be, and it hereby is, quashed. ' Chicago Typographical Union No 16 (Neely Printing Company, Inc), 155 NLRB 963 2 In view of our determination that there is no reasonable cause to believe that Respondent violated Section 8(b)(4XD), we find it unnecessary to deal with the other contentions of the parties