Laborers International Union of North America

LABORERS INTERNATIONAL UNION OF NORTH AMERICA 137 Laborers International Union of North America, Section 2(6) and (7) of the Act, as amended, and it AFL-CIO, Local 282 and Hannin Roofing and will effectuate the purposes of the Act to assert ju- Sheet Metal Company, Inc. and United Slate, risdiction herein. Tile and Composition Roofers, Damp and Wa- terproof Workers' Association, Local 208. Case 1l. THE LABOR ORGANIZATIONS INVOLVED 14-CD-632 The parties stipulated, and we find, that the La- September 30, 1981 borers and the Roofers are labor organizations within the meaning of Section 2(5) of the Act. DECISION AND DETERMINATION OF DISPUTE A. Background and Facts of the Dispute BY MEMBERS FANNING, JENKINS, AND The Employer has a contract to construct a ZIMMERMAN built-up roof on part of the Sikeston power plant in Sikeston, Missouri. The Employer is a subcontrac- This is a proceeding under Section 10(k) of the tor to Triangle Insulation of Paducah, Kentucky. National Labor Relations Act, as amended, follow- Triangle Insulation is a subcontractor to Babcock ing a charge filed by Hannin Roofing and Sheet & Wilcox, the general contractor. On June 3, eight Metal Company, Inc., herein called the Employer, roofers employed by the Employer unloaded mate- alleging that Laborers International Union of rials at the worksite. Ernie Brown, the Laborers North America, AFL-CIO, Local 282, herein chief steward for this worksite, advised the Em- called the Laborers, had violated Section ployer's job superintendent, Doug Graham, that 8(b)(4)(D) of the Act by engaging in certain pro- shoveling the roofing gravel and cleaning up the scribed activity with an object of forcing or requir- roof debris should be done by employees represent- ing the Employer to assign certain work to its ed by the Laborers. Brown asked Graham to speak members rather than to employees represented by with the Laborers business agent and principal offi- United Slate, Tile and Composition Roofers, Damp cer, Jim Bollinger. Although he tried to reach him and Waterproof Workers' Association, Local 208, by phone, Graham never spoke with Bollinger. herein called the Roofers. Graham did, however, consult with the Employer's Pursuant to notice, a hearing was held before president and with the business agent for Roofers Hearing Officer Michael Jamison on July 9, 1981.1 Local 144 concerning the use of laborers to do the All parties appeared 2 and were afforded full oppor- work in question and, after such consultation, on tunity to be heard, to examine and cross-examine Thursday, June 4, he advised Brown that the Em- witnesses, and to adduce evidence bearing on the ployer would assign the work to its employees rep- issues. resented by the Roofers. According to Graham, Pursuant to the provisions of Section 3(b) of the Brown then reiterated that the work belonged to National Labor Relations Act, as amended, the Na- employees represented by the Laborers, and also tional Labor Relations Board has delegated its au- stated that "if you do not sign a laborers contract thority in this proceeding to a three-member panel. and employ 2 laborers by Friday [Bollinger] was The Board has reviewed the Hearing Officer's going to put a picket on this job." Brown denied rulings made at the hearing and finds that they are doing anything other than, on June 3, asking free from prejudicial error. They are hereby af- Graham to speak with Bollinger. In any event, be- firmed. ginning on June 8 and continuing through June 10, Upon the entire record in this proceeding, the the Laborers picketed the Employer's worksite Board makes the following findings: with a sign that read: "Notice to the Public. 1. THE BUSINESS OF THE EMPLOYER Hannin Roofing has no contract with Laborers Local 282." Pursuant to the general contractor's The parties stipulated, and we find, that the Em- request, the Employer ceased its operations at the ployer, a Kentucky corporation with its principal jobsite pending resolution of this dispute. At the place of business in Paducah, Kentucky, is engaged time of the hearing the work remained unfinished. in the construction business. During the past year, the Employer purchased goods from outside the B. The Work in Dispute State having a value in excess of $50,000. The par- The work in dispute involves moving (i.e., shov- ties also stipulated, and we find, that the Employer eling) roofing gravel at ground level and the daily is engaged in commerce within the meaning of cleanup of debris resulting from the application of roofing materials at the Sikeston power plant in Si- 'All dates are in 1981. 2 United Union of Roofers, Waterproofers and Allied Workers. Local keston, Missouri. It involves about 1 to 2 hours' 144, appeared at the hearing as a Party in Interest. work daily. 259 NLRB No. 18 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Contentions of the Parties workday after the Laborers deadline passed un- The Employer contends that there is reasonable heeded, the Laborers set up a picket at the work- cause to believe that Section 8(b)(4)(D) of the Act site with a sign directed at the Employer. In these has been violated. The Employer urges that the ex- circumstances, we find reasonable cause to believe isting collective-bargaining agreement, employer that the Laborers sought and demanded the disput- and area practice, economy and efficiency of oper- ed work, and in furtherance thereof threatened to ation, and its assignment and preference require a picket and picketed the Employer to force a finding that the work was properly assigned to em- change in the assignment of the work, in violation ployees represented by the Roofers. of Section 8(b)(4)(i) and (ii)(D), as charged. The Roofers agrees with the Employer. There is no evidence of an agreed-upon method The Laborers takes the position that there is no for the voluntary adjustment of the dispute within jurisdictional dispute within the meaning of the Act the meaning of Section 10(k) of the Act. Accord- as there exists no reasonable cause to believe that ingly, we find that this dispute is properly before Section 8(b)(4)(D) of the Act has been violated. It the Board for determination. urges that Brown's statement could not be a threat because only Bollinger had the authority to take E. Merits of the Dispute men off a jobsite or establish a picket line. Further, Section 10(k) of the Act requires the Board to it argues that the picket line was only information- make an affirmative award of disputed work after al; however, it contends that, if the Board finds giving due consideration to various factors.4 The there is reasonable cause to believe there is such a Board has held that its determination in a jurisdic- dispute, the work in question should be assigned to tional dispute is an act of judgment based on com- laborers because the work is traditionally done by monsense and experience reached by balancing such employees, the Employer has no International those factors involved in a particular case.5 or other pertinent collective-bargaining agreement The following factors are relevant in making the with the Roofers, and area practice is to assign the determination of the dispute before us: work to employees represented by the Laborers. It further contends that the work in question does not 1. Collective-bargaining agreement require any of a roofer's specialized skills, and that economy would not dictate using roofers since The Employer had a collective-bargaining agree- there is substantial cleanup required at the work- ment with the Roofers 6 on the Sikeston power site. plant job. Article II of that agreement setting forth the unit work provides, in pertinent part: D. Applicability of the Statute (b) above deck roof vapor barriers of all Before the Board may proceed with a determina- kinds; roof insulation of all kinds, including tion of the dispute pursuant to Section 10(k) of the foil and urethane composition and built-up Act, it must be satisfied that there is reasonable roofing of all kinds including hot and cold ap- cause to believe that Section 8(b)(4)(D) has been plied; prepared, plastic, fluid applied, sheet ap- violated and that the parties have not agreed upon plied and mastic roofing; all associated roof a method for the voluntary adjustment of the dis- surfacing including aggregates, coating, traffic pute. planks and decks and decorative finishes; and There is evidence that on June 3 Brown, the La- the necessary metal flashing to make water- borers chief steward at the site, told Graham, the tight; job superintendent of the Employer, that the Em- ployer would have to hire employees represented * * * * * by the Laborers; that, subsequently, after Brown bainformed that roofers would get the work, he B n 4N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212. was informed that roofers would get the work, he International Brotherhood of Electrical Workers, AFL-CIO [Columbia warned Graham that if the Employer "did not sign Broadcasting Systeml, 364 U.S. 573 (1961). a laborers contract and employ 2 laborers by I International Association of Machinists, Lodge Na 1743. AFL-CIO (J. Friday [the Laborers business agent] was going to A. Jones Construction Company), 135 NLRB 1402 (1962). put a picket on this job"3 and that on the first 'The literal language of the collective-bargaining agreement would not put a picket on this job'"13 and that on the first cover the jobsite in question. Thus the geographic jurisdiction of the col- lective-bargaining agreement does not include any of Missouri. This limi- s We need not conclusively resolve the conflict in testimony between tation results from the fact that Local 208's jurisdiction does not extend Brown and Graham on this point, since the Board only is required to find to this area. Rather this project falls within the jurisdiction of neighbor- there is reasonable cause to believe that Sec. 8(b)X4D) had been violated ing Local 144, the party in interest in this case. However, Local 144 had before making a determination of the dispute out of which the alleged given the Employer permission to use Local 208-represented employees unfair labor practice has arisen. United Brotherhood of Carpenters and on this jobsite. Since Local 208-represented employees were being used, Joiners of America, AFL-CIO, et al. (Wendnagel & Company), 116 NLRB it was their contract with the Employer, despite the limiting language as 1063, 1066 (1956). to jurisdiction, which was being applied to this jobsite. LABORERS INTERNATIONAL UNION OF NORTH AMERICA 139 (e) all unloading, handling and hoisting of disputed work could do other roofers' chores the all tools and materials to be used in connection remainder of the workday. Although the Laborers with the work described in Paragraphs II, a, b, argued that, if the Employer hired laborers to do c and d above ... . the disputed work, those hired could also do other (f) all other work in connection with or inci- chores, there is nothing here to indicate that any dental thereto. such work was available. Thus, the factor of econ- We find that section (e) of the above agreement omy and efficiency favors assignment of the disput- encompasses the movement of roofing gravel at ed work to employees represented by the Roofers. ground level and that section (f) is broad enough to 5. Skills cover cleanup duties. Thus, the Employer's collec- tive-bargaining agreement with the Roofers covers The work does not require any special skill. the work in dispute. Therefore both groups of employees are equally The Employer has no contract with the Labor- capable of performing the work. This factor favors ers. We conclude, therefore, that the relevant col- neither group of employees. lective-bargaining agreement favors an assignment Conclusion of the disputed work to employees represented by the Roofers. Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- 2. Employer preference, assignment, and past clude that employees who are represented by the practice Roofers are entitled to perform the work in dis- The Employer assigned the work here to roofers pute. We reach this conclusion relying on the col- and prefers an assignment to that group of employ- lective-bargaining agreement, the Employer's pref- ees. It presented evidence that on a prior job in the erence, assignment, and past practice, and efficien- same general geographical area it used employees cy and economy of operation, all of which favor represented by the Roofers to handle gravel and to an award of the disputed work to the employees clean up roofing debris. We find the factors of em- represented by the Roofers. In making this determi- ployer preference, assignment, and past practice nation, we are awarding the work in question to favor an award to employees represented by the employees who are represented by the Roofers, but Roofers. not to that Union or its members. The present de- termination is limited to the particular controversy 3. Industry practice which gave rise to this proceeding. The Employer presented testimony from three of its competitors working within a 100-mile radius of this project. One of them uses employees represent- Pursuant to Section 10(k) of the National Labor ed by the Roofers, exclusively, for the disputed Relations Act, as amended, and upon the basis of work while the other two competitors regularly the foregoing findings and the entire record in this use employees represented by the Roofers for the proceeding, the National Labor Relations Board transport of gravel, though they both mentioned makes the following Determination of Dispute: isolated examples when employees represented by 1. Employees of Hannin Roofing and Sheet the Laborers did cleanup work. The Laborers pre- Metal Company, Inc., who are represented by sented evidence that its employees had shoveled United Slate, Tile and Composition Roofers, Damp gravel and done cleanup on other projects. We find and Waterproof Workers' Association Local 208, that the industry practice is mixed and favors nei- are entitled to move (i.e., shovel) roofing gravel at ther group of employees. ground level and to the daily cleanup of debris re- sulting from the application of roofing materials at 4. Economy and efficiency of operation the Sikeston power plant in Sikeston, Missouri. The Employer's president testified that it would 2. Laborers International Union of North Amer- take about 1 hour daily to shovel gravel and an- ica, AFL-CIO, Local 282, is not entitled by means other hour daily to do cleanup. He further testified proscribed by Section 8(bX4)(D) of the Act to that, because both tasks are normally done at the force or require Hannin Roofing and Sheet Metal end of each workday, if the Employer were to hire Company, Inc., to assign the disputed work to em- employees represented by the Laborers it would ployees represented by that labor organization. have to hire two people and pay each of them for 3. Within 10 days from the date of this Decision a full 8-hour day even though it only had I hour's and Determination of Dispute, Laborers Interna- worth of work for each one. However, if roofers tional Union of North America, AFL-CIO, Local did the disputed work, the employees doing the 282, shall notify the Regional Director for Region 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 14, in writing, whether or not it will refrain from the disputed work in a manner inconistent with the forcing or requiring the Employer, by means pro- above determination. scribed by Section 8(b)(4)(D) of the Act, to assign