Roofers Local 20 (Jabral, Inc)

ROOFERS LOCAL 20 (JABRAL, INC ) 147 United Union of Roofers, Waterproofers and Allied Workers, Local No. 20 and 20B and Jabral, In- corporated and Bricklayers and Allied Crafts- men Union, Local No. 4, AFL-CIO.' Case 17- CD-307 19 September 1984 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER This is a proceeding under Section 10(k) of the National Labor Relations Act, following a charge filed by Jabral, Incorporated, the Employer, alleg- ing that the United Union of Roofers, Water- proofers and Allied Workers, Local No 20 and 20B had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represented by the Bricklayers and Allied Craftsmen Union, Local No 4, AFL-CIO Pursuant to notice, a hearing was held before Hearing Officer Daniel L Hubbel on 26 June 1984 The Employer and Bricklayers appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issue 2 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has reviewed the hearing officer's rulings made at the hearing and finds that they are free from prejudicial error They are affirmed On the entire record in this proceeding, the Board makes the following findings I THE BUSINESS OF THE EMPLOYER The Employer is a Missouri corporation engaged in the installation and application of caulking, wa- terproofing, and restoration material on new and restored buildings It annually sells more than $50,000 worth of goods and services to customers located outside the State of Missouri and has annual gross revenues in excess of $500,000 The Employer concedes and we find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein ' The names of the parties appear as amended at the hearing 2 The Respondent did not participate in the hearing II THE LABOR ORGANIZATIONS INVOLVED The United Union of Roofers, Waterproofers and Allied Workers, Local No 20 and 20B, and the Bricklayers and Allied Craftsmen Union, Local No 4, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act III THE DISPUTE A Facts and Background The Employer, a subcontractor on the construc- tion of the Cass County Information Center, Ham- sonville, Missouri, is engaged in caulking, water- proofing, and masonry restoration It has been as- signed the job of waterproofing foundation walls and caulking exterior frames and exposed masonry surfaces at the Cass County jobsite The Employer has traditionally used employees represented by the Bricklayers to perform this work About 8 May 1984 the Employer's vice presi- dent, Leonard James Mills, received a telephone call from Burley Rogers, business agent for Roof- ers Local 20 and 20B Rogers advised Mills that the below grade waterproofing job belonged to members of the Roofers and asked Mills to put the Roofers on the job Mills responded that he was not aware the Roofers had claimed the work and that he would have to check The following day Rogers delivered to Mills a number of decisions of the Impartial Jurisdictional Disputes Board assigning waterproofing work to members of the Roofers Rogers again asked that the Roofers be put on the Cass County project and Mills told him that he would have to talk to the Bricklayers and the Builders Association On 15 May 1984 the Employer began work using the Bricklayers, a Roofers picket arrived, and all other craftsmen walked off their jobs The Employer completed the work for the day at 12 p m and has not, to date, returned It is esti- mated that 10 to 12 additional man-days are needed to complete the work on the project B The Work in Dispute The work in dispute, as amended at the hearing, is described as "the application of waterproofing and dampproofing, applying a liquid urethane membrane to below grade concrete and roof deck "3 3 The work in dispute set forth in the notice of hearing Included, caulking exposed door frames and interior doors and entryways ' At the hearing an amendment deleted this language caulking work is not in dispute 272 NLRB No 31 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Contentions of the Parties The Employer and the Bricklayers assert that the disputed work should be assigned to employees represented by the Bricklayers on the basis of a' longstanding collective-bargaining relationship, the Employer's past practice and preference, the area practice, and the special skills of the bricklayers ac- quired through on-the-job training. . The Respondent's claim to the disputed work ap- pears to be premised on prior decisions of the Im- partial Jurisdictional Disputes Board. 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 on w method for the voluntary adjustment of the dis- pute. It is clear that the Roofers claimed the work in dispute and did in fact picket the Cass County job- site with the object of forcing the reassignment of work from employees represented by the Bricklay- ers to employees represented by the Roofers. The Roofers apparently rely on the decisions of the Impartial Jurisdictional Disputes Board. How- ever, no evidence has been adduced that the Em- ployer is bound to that procedure. Indeed, the Em- ployer has asserted that it is not a signatory to any agreement providing for the submission of disputes to the Impartial Jurisdictional Board. On the basis of the entire record, we conclude that there is reasonable cause to believe that the Roofers has violated Section 8(b)(4)(D) of the Act and that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board for determination. E. 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 factors. 4 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on common sense and experience reached by balanc- ing the factors involved in a particular case.5 The following factors are relevant in making the determination of the dispute before us. 4 NLRB v Electrical Workers IBEW Local 1212 (Columbia Broadcast- ing), 364 US 573 (1961) 5 Machinists Lodge 1743 (J A Jones Construction), 135 NLRB 1402 (1962) 1. Collective-bargaining agreement The Employer is signatory to a Joint Agreement between the Builders Association of Missouri and Local No. 4 Missouri and Local No. 18 Kansas of the Bricklayers and Allied Craftsmen, AFL-CIO. Article III of the agreement recognizes the Brick- layers as the exclusive bargaining agent for all em- ployees of the Employer who perform any type of building construction work which has historically and traditionally been performed by the members of the Bricklayers and Allied Craftsmen in the geo- graphical area of the agreement. The work in dis- pute has been performed in the past by the Em- ployer's employees represented by the Bricklayers. The Employer does not have a contract with the Roofers. The collective-bargaining agreement be- tween the Employer and .tlie Bricklayers favors as- signment of the work in dispute to employees rep- resented by the Bricklayers. 2. Employer and area practice Leonard James Mills, vice president of the Em- ployer, testified that it has had a collective-bargain- ing relationship with Bricklayers Local No. 4 for approximately 26 years. Mills stated that for the past 8 years the Company has handled 6 to 15 jobs per year that require below grade waterproofing and that bricklayers have always performed this work. Mills stated that to the best of his knowledge no other waterproofing companies in the Kansas City area have collective-bargaining agreements with the Roofers. Despite some jurisdictional dis- putes, Mills stated that his competitors are using bricklayers to perform the disputed work. Robert Thomas testified that he has been the business agent for Bricklayers Local No. 4 for the past 12 years. Thomas stated that in his experience as business agent he has never known other con- tractors to assign the disputed work to anyone but his members. We therefore find that this factor favors an award to employees represented by the Bricklay- ers. 3. Relative skills The record does not establish that either group of employees can perform the disputed work better than the other. Therefore, this factor favors neither group of employees. 4. Employer assignment and preference The Employer assigned the work in dispute to, and prefers that it be performed by, employees rep- resented by the Bricklayers; this factor favors an award to these employees. ROOFERS LOCAL 20 (JABRAL, INC ) 149 Conclusions Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that employees represented by the Bricklay- ers are entitled to perform the work in dispute We reach this conclusion relying on the collective-bar- gaining agreement, employer and area practice, and the Employer's assignment and preference In making this determination, we are awarding the work in question to employees who are represented by the Bricklayers, but not to that Union or its members The present determination is limited to the particular controversy which gave rise to this proceeding DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute 1 Employees of Jabral, Incorporated, who are represented by the Bricklayers and Allied Crafts- men Union, Local No 4, AFL-CIO, are entitled to perform the waterproofing of the foundation walls at the Cass County Information Center jobsite at Harrisonville, Missouri 2 The United Union of Roofers, Waterproofers and Allied Workers, Local No 20 and 20B, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Jabral, Incorporated, to assign the disputed work to employees repre- sented by that labor organization 3 Within 10 days from the date of this Decision and Determination of Dispute, the United Union of Roofers, Waterproofers and Allied Workers, Local No 20 and 20B, shall notify the Regional Director for Region 17 in writing, whether it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination