United Union Of Roofers, Waterproofers And Allied Workers, Local Union No. 2, Afl-Cio

460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Union of Roofers, Waterproofers and Allied Workers, Local Union No. 2, AFL-CIO and Construction and General Laborers Local 660, affiliated with Laborers International Union of North America, AFL-CIO and WMB Industrial Services, Inc. and General Motors Corporation and R & M Tool Company and Alternative Technologies, Inc. Case 14-CD-800 August 31, 1989 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY The charge in this Section 10(k) proceeding was filed February 28, 1989, by Laborers Local 660, al- leging that the Respondent Roofers Local 2 violat- ed Section 8(b)(4)(D) of the National Labor Rela- tions Act by engaging in proscribed activity with an object of forcing WMB Industrial Services, Inc., the Employer, to assign certain work to employees represented by Roofers Local 2 rather than to em- ployees represented by Laborers Local 660. The hearing was held March 23, 1989, before Hearing Officer Lynette K. Zuch. The National Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The Employer, WMB Industrial Services, Inc., is a Missouri corporation engaged in the nonretail in- stallation of specialty waterproofing and coating products at jobsites located in the metropolitan St. Louis, Missouri area. The Employer commenced operations January 1, 1989, and will annually per- form services valued in excess of $50,000 for cus- tomers, each of which meets other than a solely in- direct standard for the assertion of the Board's ju- risdiction. The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Roofers Local 2 and Laborers Local 660 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute General Motors has contracted WMB to perform roof repairs at the General Motors plant in Wentz- ville, Missouri. WMB's repair procedure involves applying membrane sealing and waterproofing products, known as Belzona products, at expansion joints, drains, flashing, and splits on the roof. The products applied by WMB are purchased by Gen- eral Motors directly from Ralph Smith, doing busi- ness as R & M Tool. WMB has a collective-bar- gaining agreement with the Laborers and has as- signed the roof repair work to its employees who are represented by the Laborers. On February 23, 1989, a dispatcher informed General Motors Technical Supervisor Savoy Smith that Roofers Representative Paul Ferguson had telephoned and stated that unless Ralph Smith called him back within one-half hour there would be pickets at General Motors. Ralph Smith called Ferguson, as did William Boyce, the owner of WMB, who was informed by Savoy Smith that WMB would have to leave the jobsite due to Fer- guson's threat. Ferguson stated to Boyce that WMB was doing the Roofers' work and would have to remove itself from the jobsite or Ferguson would set up a picket line. Ferguson agreed, how- ever, that WMB could continue to work on the skylights on the General Motors roof, which the Roofers did not claim . WMB discontinued its work on the General Motors roof, except for the repairs to the skylights. The following day Ferguson and two other rep- resentatives of the Roofers met with Savoy Smith, Boyce, and Ralph Smith at the General Motors fa- cility. At that meeting, Ferguson asserted that the flashings, expansion joints, roof drains, and body splits were the Roofers' work, and stated that if WMB went back to work on those areas the Roof- ers would picket. Boyce testified that Ferguson fur- ther stated that the way to resolve the problem was for "us to get off the job and let Local 2 come and do it." Ralph Smith also testified that Ferguson indicated he wanted to see a contract between General Motors and the Roofers. B. Work in Dispute The disputed work involves the application of membrane sealing and waterproofing products at expansion joints, drains, flashing, and splits on the roof of the General Motors plant in Wentzville, Missouri.1 C. Contentions of the Parties The Employer and the Laborers contend that there is reasonable cause to find a violation of Sec- ' Although the disputed work as described in the notice of hearing also included the application of the membrane sealing and waterproofing products on the gutters, counsel for the Laborers and for the Roofers agreed at the hearing that work on gutters was not involved in the cur- rent dispute 296 NLRB No. 63 ROOFERS LOCAL 2 (WMB INDUSTRIAL SERVICES) 461 tion 8(b)(4)(D) of the Act and that the work should be awarded to employees represented by the La- borers based on provisions of the collective-bar- gaining agreement between the Employer and the Laborers; employer preference; relative skills and safety; industry practice; and economy and efficien- cy of operations. The Roofers contends that there is no reasonable cause to find a violation of Section 8(b)(4)(D) of the Act. Although it claims the disputed work, the Roofers takes no position with respect to the award of the work. General Motors contends that there exists rea- sonable cause to find a violation of Section 8(b)(4)(D) of the Act, but takes no position con- cerning the award of the work in dispute. R & M Tool contends that there is reasonable cause to find a violation of Section 8(b)(4)(D) of the Act, and concurs with the Employer and the Laborers that the disputed work should be award- ed to the employees represented by the Laborers. D. Applicability 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 that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. The record clearly indicates that on February 23, 1989, a Roofers representative spoke with the owner of WMB, claimed the roof repair work being performed at the General Motors jobsite by WMB employees represented by the Laborers, and threatened to picket the job. The next day Roofers representatives met with representatives of WMB, General Motors, and R & M Tool. Again, a Roof- ers representative claimed the disputed work and threatened to picket. Based on the foregoing, we find that an object of the Roofers' threats was to force or require that the roofing work be assigned to employees repre- sented by the Roofers. We therefore find reasona- ble cause to believe that a violation of Section 8(b)(4)(D) has occurred. The parties have stipulat- ed that there exists no agreed-upon method for vol- untary adjustment of the dispute within the mean- ing of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of the dispute. 1. Certification and collective-bargaining agreements Neither Union has been certified by the Board as the collective-bargaining representative of the em- ployees of WMB. Accordingly, this factor is not helpful in determining the dispute. WMB is an independent signatory to the collec- tive-bargaining agreement between the Site Im- provement Association and Laborers Local 660, which recognizes the Laborers as the exclusive representative of all building and construction la- borers in WMB's employ. Article IV of the agree- ment identifies the exclusive jurisdiction of the La- borers to include, inter alia: (s) All common and semi-skilled labor in connection with building and construction work, all material handling and helping and tending of building and construction crafts, and the handling of all tools, working equip- ment and appliances for the performance of these functions. WMB does not have a collective-bargaining agreement with the Roofers. Based on the above, we find that the factor of collective-bargaining agreements favors an award of the work in dispute to WMB's employees repre- sented by the Laborers. 2. Company preference and past practice William Boyce, president of WMB, testified that he prefers to assign the disputed work to the La- borers. Although at the February 24, 1989 meeting Boyce offered to hire two workers from the Roof- ers' hiring hall, he testified that he made the offer because he felt his livelihood was threatened and that he also intended to keep the WMB employees represented by the Laborers on the job. WMB was incorporated in January 1989 and en- tered into its collective-bargaining agreement with the Laborers in February 1989. Boyce previously had been in business as Tidy Pool and Spa, using essentially the same process as that utilized by WMB, but employing different employees, who were not represented by any union. Although WMB's limited past practice provides little assist- 462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ance in resolving the current dispute, we find based on the expressed preference of its president that this factor favors an award of the work in dispute to employees represented by the Laborers. 3. Area practice Boyce testified that WMB employees have per- formed roof repairs at the Monsanto, Tetro Plas- tics, Southwestern Bell, and Mallinkrodt plants, and that at the Tetro Plastics plant it used the same materials and process as those applied on the Gen- eral Motors roof. Ralph Smith testified that Gener- al Motors employees had also applied Belzona products to repair the concrete roof of the car car- rier wash basin. Ralph Smith, Boyce, and Laborers Business Manager Roger Pryor stated that they knew of no roofing contractors or other companies performing roof repairs that utilized these products. Accordingly, we find that this factor favors an award to WMB's employees represented by the La- borers. 4. Relative skills Ralph Smith testified that the roof sealing and waterproofing process performed by WMB in- volves applying a primer material , laying out rein- forcing sheeting resembling mosquito netting, and painting on two coats of a flexible rubber material with a thick toothpaste-like consistency. Ralph Smith further testified that this process is very dif- ferent from the tar and felt method used by con- ventional roofing companies . Boyce testified that 2 to 3 weeks of on-the-job training are required for employees to become skilled in the application of the materials, which entails the use of scrapers, chi- sels, hammers, paint brushes, rags, and buckets. Boyce testified that the WMB employees represent- ed by the Laborers do excellent work, and General Motors Shift Manager Donald Bockerstette testi- fied that the work performed by WMB employees has been satisfactory. The Roofers did not present evidence at the hearing and therefore did not dem- onstrate that the employees they represent possess the skills needed to perform the disputed work. Accordingly, we find that this factor favors an award of the disputed work to the WMB employ- ees represented by the Laborers. 5. Economy and efficiency of operations Boyce testified that using laborers to perform the disputed work increases efficiency because "[t]hey know what they are doing" and because the two laborers employed by WMB have the flexibility to apply the Belzona products on a variety of jobs, in- cluding repairs on roofs and tanks as well as inside the plant. Bockerstette also testified that General Motors wishes to retain its option to use either WMB or a conventional roofing company because each process is, respectively, appropriate and effi- cient on different jobs. We find that this factor favors an award of the disputed work to the WMB employees represented by the Laborers. Conclusions After considering all the relevant factors, we conclude that employees represented by the Labor- ers are entitled to perform the work in dispute. We reach this conclusion relying on the collective-bar- gaining agreement; company preference; area prac- tice; relative skills; and economy and efficiency of operations. In making this determination , we are awarding the work to employees represented by the Labor- ers, not to that Union or its members . The determi- nation is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of WMB Industrial Services, Inc., represented by Construction and General Laborers Local 660, affiliated with Laborers International Union of North America, AFL-CIO are entitled to perform the application of membrane sealing and waterproofing products at expansion joints, drains, flashing, and splits on the roof of the General Motors plant in Wentzville , Missouri. 2. United Union of Roofers, Waterproofers and Allied Workers, Local Union No. 2, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force WMB Industrial Services, Inc. to assign the disputed work to em- ployees represented by it. 3. Within 10 days from this date, United Union of Roofers, Waterproofers and Allied Workers, Local Union No. 2, AFL-CIO shall notify the Re- gional Director for Region 14 in writing whether it will refrain from forcing the Employer , by means proscribed by Section 8(b)(4)(D), to assign the dis- puted work in a manner inconsistent with this de- termination.