Roofers Local 30 (Gundle Lining)

National Labor Relations Board - Board Decisions

Jun 28, 1990

298 N.L.R.B. 951 (N.L.R.B. 1990)

ROOFERS LOCAL 30 (GUNDLE LINING)
Local 30 , United Slate, Tile and, Composition Roof-
ers, Damp and Waterproof Workers Associa-
tion, AFL-CIO and Gundle Lining Construc-
tion Corp . Case 4-CD-765
June 28, 1990
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
The charge in this Section 10(k) proceeding was
filed November 13, 1989, by Gundle Lining Con-
struction Corp. (Gundle or the Employer), alleging
that the Respondent, Local 30, United Slate, Tile
and Composition Roofers, Damp and Waterproof
Workers Association, AFL-CIO (Roofers), violat-
ed Section 8(b)(4)(D) of the National Labor Rela-
tions Act by engaging in proscribed activity with
an object of forcing the Employer to assign certain'
work to employees it represents rather than to em-
ployees represented by Laborers Local 172, Labor-
ers International Union of North America, AFL-'
CIO (Laborers). The hearing was held March 13
and 21, 1990, before Hearing Officer Barbara C.
Joseph.
The National Labor Relations Board has delegat-'
ed 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, a Texas corporation, is engaged
in the manufacture and installation of high density
polyethylene linings. During the 12-month period
ending March 13, 1990, the Employer performed
work at the Ocean County Landfill in Lakehurst,
New Jersey, in the course of which the Employer
purchased and received goods and materials valued
in excess of $50,000 directly from points outside
the State of New Jersey. The parties stipulate, and
we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and that the Roofers and the Laborers
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
H. THE DISPUTE
A. Background and Facts of Dispute
Gundle installs cell liners at landfills throughout
the United States. Cells are particular areas of a
landfill into which garbage is placed. Gundle lined
951
a cell at the Ocean County Landfill on at least one
occasion prior to 1 988, and installed another cell's
lining during the time period from November 1988
through January 1989. Subsequently , in July 1989,
Gundle performed capping and repair work on an
Ocean County Landfill cell. On November 6, 1989,
Gundle began installation of the liner at the land-
fill's Cell No . 4, the work in dispute.
On November 18, 1988, a Gundle representative
executed with the Roofers a memorandum agree-
ment covering the Ocean County Landfill, agree-
ing in part "to abide by all terms and conditions of
collective bargaining agreements in effect as of
11118188 through COMPLETION" between the
Roofers and the Roofing and Sheet Metal Contrac-
tors' Association of Philadelphia and Vicinity
(RSMCA).
The Employer assigned the disputed work at
Cell No. 4 to employees represented by the Labor-
ers by letter dated October 24 , 1989.1 Thereafter,
the Employer and the Laborers executed a project
agreement dated November 6, for the Cell No. 4
work, according to which Gundle agreed to be
bound by the modified term of the 1986-1989 As-
sociated General Contractors of New Jersey con-
tract.
On November 6, Gundle representatives attend-
ed a hearing at the RSMCA in Philadelphia related
to a grievance filed by the Roofers against Gundle
concerning Gundle's unrepresented employees' per-
formance of lining work at a Tullytown , Pennsyl-
vania landfill , rather than Roofers-represented em-
ployees. During that hearing , the Roofers became
aware that Gundle was again performing lining
work at the Ocean County Landfill, but without
employees represented by the Roofers. The Roof-
ers president , Torn Pedrick , asked Gundle's project
manager, Mike Sullivan , whether it was true that
Gundle was. on site at Ocean County . According to
Sullivan, he said yes and that Laborers-represented
employees were performing the work . When Pe-
drick asked why , Sullivan told him that the landfill
owner did not want the Roofers on site and had
put him in touch with the Laborers . Pedrick then
told Sullivan that he was overstepping his bounds
and creating a bad working relationship with the
Roofers. According to Pedrick , Sullivan never in-
formed him that employees represented by the La-
borers were performing the Ocean County work
and, thus, Pedrick assumed that the Employer was
using its own unrepresented employees as it had at
Tullytown.
On November 8, four individuals wearing Roof-
ers jackets picketed the Ocean County Landfill car-
' All dates hereafter are 1989, unless specified otherwise
298 NLRB No. 142
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rying signs stating that Gundle did not pay union
wages and that Gundle did not pay area wages.
After working approximately 2 to 3 hours, Gundle
employees and laborers left the job at the landfill
owner's request . The picketing , which had lasted
approximately 3 hours, then ceased and has not re-
curred . According to Pedrick, the picketing ended
immediately when the Roofers discovered that em-
ployees represented by the Laborers were on the
job.
On November 14, Roofers Business Representa-
tive Mike McCann sent the Employer a letter
"constitut [ing] a grievance protesting Gundle's
vioaltions [sic] of our Collective Bargaining Agree-
ment on the Ocean County landfill job site. If a
meeting would not be fruitful , the Union would
submit a grievance directly to the Joint Conference
Board."
Between November 8 and 17 , Gundle's vice
president for construction , Tony Priesol, talked by
telephone to Pedrick , who asked why the Employ-
er was using Laborers-represented employees on
the Ocean County job. Pedrick stated that he knew
of only one instance in which laborers performed
liner installations in New Jersey and that basically
it was his work.
Priesol sent a letter dated November 17 to the
Roofers stating , inter alia , that the Employer no
longer had an agreement with the Roofers cover-
ing the work at Ocean County ; the previous agree-
ment with the Roofers, dated November 18, 1988,
expired January 27, 1989 , upon completion of job
number B/008 . The letter stated that the work at
Ocean County Landfill Cell No. 4 had been as-
signed to employees represented by the Laborers.
On December 5, McCann , by letter to RSMCA
Director of Roofing Services Richard Harvey, re-
quested a Joint Conference Board meeting to con-
sider its grievance against Gundle. By letter dated
December 6, Harvey informed the Employer of the
Joint Conference Board grievance hearing sched-
uled for January 3, 1990 . By letter dated December
28, Priesol responded to the RSMCA notice of
grievance hearing by stating that the Joint Confer-
ence Board lacked jurisdiction over Gundle for the
dispute at Ocean County Landfill because Gundle's
November 18, 1988 agreement with the Roofers ex-
pired upon completion of its then -current contract
with the landfill . The letter added that the disputed
work was the subject of an entirely separate con-
tract with the landfill . Thus, Priesol advised
RSMCA that it would not participate in the Joint
Conference Board hearing and would not be bound
by the board 's decision in the matter . The Joint
Conference Board met as scheduled on January 3,
1990 , without representatives of Gundle present. ever, the record is too ambiguous to support that expansion
By letter dated January 4, 1990 , the Roofers in-
formed the Board 's Regional Office, inter alia, that
it was not claiming the work at Ocean County
Landfill and that it specifically was disclaiming
such work . The letter also stated that the Roofers
would continue to pursue monetary damages from
the Employer for breach of their collective-bar-
gaining agreement.
Subsequently , on January 17, 1990 , the Joint
Conference Board sustained the Roofers' grievance
and directed the Employer to make whole those in-
dividuals deprived of work opportunities by paying
contractually required dues, wages, and benefit
funds contributions.
B. Work in Dispute2
The disputed work involves the placement of
high density polyethylene panels, which includes
removal from rolls and securing panels with sand-
bags, onto the ground on subgrade surfaces for
Gundle Lining Construction Corp . at the Ocean
County Landfill in Lakehurst , New Jersey.
C. Contentions of the Parties
The Employer contends that the Roofers picket-
ed the Ocean County Landfill jobsite November 8,
1989 , with the object of coercing the Employer to
reassign the work to employees represented by the
Roofers. The Employer further contends that the
Roofers' disclaimer of the work is insufficient and
ineffective because the Roofers nonetheless pursued
a grievance for pay in lieu of performance with the
Joint Conference Board. Finally, the Employer
contends that the work should be awarded to em-
ployees represented by the Laborers based on their
collective-bargaining agreement, industry and area
practice , employer preference , and economy and
efficiency of operations.
The Laborers contends that the work should be
awarded to laborers on the basis of area and indus-
try practice , employer preference, and economy
and efficiency of operations.
The Roofers contends that there is no reasonable
cause to believe Section 8 (b)(4)(D) has been violat-
ed and that the notice of hearing in this case should
be quashed . The Roofers contends that it never
claimed the work and that the November 8 picket-
ing was area-standards picketing . The Roofers con-
tends that the work was specifically disclaimed in
its January 4, 1990 letter to the Regional Office. Fi-
nally, if the notice of hearing is not quashed, the
Roofers contends that the work should be awarded
to the employees it represents based on collective-
2 The Employer seeks to expand the scope of the disputed work, how-
ROOFERS LOCAL 30 (GUNDLE LINING)
bargaining agreement, employer past practice, and
relative skills.
D. Applicability q f the Statute
Before the Board may proceed with a determina-
tion of 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 a
method for voluntary resolution of the dispute. The
parties have stipulated that there is no agreed-upon
method for voluntary adjustment of the dispute.
The Roofers asserts that on November 8 it en-
gaged in valid area-standards picketing, as indicat-
ed by their picket signs stating that the Employer
did not pay area wages and union wages. There is
no evidence, however, indicating that the Roofers
ever contacted the Employer regarding wages paid
to its employees on the Ocean County Landfill job
or in any other manner ascertained such wage in-
formation. It is therefore clear that the Roofers
never made a reasonable inquiry into the Employ-
er's wage scales. Accordingly, we find no merit to
this contention.3
In consideration of the above circumstances, we
find reasonable cause to believe that the Roofers'
area-standards message was designed to mask an
unlawful object of obtaining the work in dispute
for employees it represents. In this regard, we note
that Sullivan, Gundle's project manager, testified
that he informed Roofers, President Pedrick at the
RSMCA hearing concerning Tullytown 2 days
before the picketing that the Employer was using
Laborers-represented employees on the Ocean
County Landfill job. Pedrick, on the other hand,
testified that Sullivan did not mention the Laborers
and that he therefore assumed the Employer was
using its own unrepresented employees.4 'Addition-
ally, Gundle Official Priesol's telephone conversa-
tion with Pedrick following the picketing further
indicates that the Roofers were claiming the disput-
ed work because Pedrick told Priesol during that
conversation that it was Roofers work. We find
that the picketing and Pedrick' s oral statements
constitute a demand for the work.4
3 See Operating Engineers Local 825 (Harms Construction), 273 NLRB
833 (1984).
4It is well settled that a conflict in testimony does not prevent the
Board from proceeding under Sec 10(k) because in this type of proceed-
ing the Board is not charged with finding that a violation did in fact
occur, but only that reasonable cause exists for finding a violation. See,
e.g, Electrical Workers IBEW Local 400 (E T Electrical), 285 NLRB
1149 (1987)
5In finding a demand for the work, Member Cracraft additionally
relies on Roofers Business Representative McCann's November 14 letter
to the Employer concerning the grievance, as well as the Roofers' subse-
quent pursuit of the grievance See Sheer Metal Workers Local 107 (Lath-
rop Co.), 276 NLRB 1200, 1202 (1985)
953
The Roofers continues to contend that it is not
seeking the disputed work, and that it effectively
disclaimed the work in its January 4, 1990 letter to
the Board's Regional Office. The Roofers pursuit
of the grievance against the Employer for a con-
tract violation is, however, inconsistent with that
disclaimer.6
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed-upon method for voluntary
adjustment of the dispute within the meaning of
Section 10(k) of the Act. Accordingly, we find that
the dispute is properly before the Board for deter-
mination.
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
The parties have stipulated that the Board has
not certified either the Roofers or the Laborers as
the collective-bargaining representative of Gundle's
employees.
Gundle executed a project agreement with the
Laborers, effective November 6, 1989, through
completion, covering the disputed work. Pursuant
to the agreement, Gundle agreed to be bound by
the terms and conditions of the 1986-1989 Associ-
ated General Contractors of New Jersey agreement
with the Laborers, as modified by the 1989-1991
extension.
Gundle executed an agreement with the Roofers,
effective November 18, 1988, through completion,
covering work at the Ocean County Landfill. Pur-
suant to this agreement , Gundle agreed to be
bound by the terms and conditions of the current
collective-bargaining agreements between the
Roofers and the RSMCA , and all extensions,
amendments, and changes.
Accordingly, we find this factor does not favor
an assignment of the disputed work to employees
represented by either union.
6 Ibid
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Employer preference and past practice
Gundle has assigned the disputed work to Labor-
ers-represented employees and is satisfied with
their work. Additionally, Gundle has used Labor-
ers-represented employees, as well as unrepresented
and Roofers-represented employees, to perform
similar work at various jobsites around the coun-
try. Gundle prefers to continue assigning this work
to employees represented by the Laborers.
Accordingly, although the evidence relating to
past practice is inconclusive, we find the factor of
employer preference favors assigning the disputed
work to employees represented by the Laborers.
3. Area and industry practice
The Laborers' business agent, Francis Kalis-
zewski, testified that employees represented by the
Laborers regularly perform liner installation work
throughout the State of New Jersey for employers,
including the Liner Company. Robert Briant, exec-
utive director of the Utility and Transportation
Contractors Association, also testified that the La-
borers customarily represent the employees per-
forming liner installation work in New Jersey.
The record contains no evidence of the Roofers
performing liner installation work for any employ-
er other than Gundle.
Accordingly, although the record, does not con-
tain sufficient evidence to establish a prevailing in-
dustry practice, we find the factor of area practice
favors assigning the work in dispute to employees
represented by the Laborers.
4. Relative skills
The record indicates that no special skills or par-
ticular trade are required to perform the work in
dispute. Pedrick testified that not just anyone could
put down a liner and that the work had a lot to do
with roofing; however, he did not state, nor does
the record otherwise indicate, whether Roofers-
represented employees are more qualified than La-
borers-represented employees to perform the work.
Therefore, we find that this factor does not favor
an assignment of the disputed work to employees
represented by either union.
5. Economy and efficiency of operations
Gundle Vice President Priesol testified that it
was more efficient to use Laborers-represented em-
ployees because this Union sent the same individ-
uals to the job each day, unlike the Roofers who
often sent different individuals each day. He stated
that continuity in the work force reduced the need
for training. Additionally, Priesol testified that the
Laborers would supply the number of employees
the Employer needed, in contrast to the Roofers,
which requires one roofer for every Gundle em-
ployee.
Accordingly, we find that this factor favors as-
signing the disputed work to employees represent-
ed by the Laborers.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Laborers
Local 172, Laborers International Union of North
America, AFL-CIO are entitled to perform the
work in dispute. We reach this conclusion relying
on employer preference, area practice, and econo-
my and efficiency of operations.
In making this determination, we are awarding
the work to employees represented by Laborers
Local 172, Laborers International Union of North
America, AFL-CIO not to that Union or its mem-
bers. The determination is limited to the controver-
sy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Gundle Lining Construction
Corp. represented by Laborers Local 172, Laborers
International Union of North America, AFL-CIO
are entitled to perform the placement of high densi-
ty polyethylene panels, which includes removal
from rolls and securing panels with sandbags, onto
the ground on subgrade surfaces at the Ocean
County Landfill in Lakehurst, New Jersey.
2. Local 30, United Slate, Tile and Composition
Roofers, Damp and Waterproof Workers Associa-
tion, AFL-CIO is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force Gundle
Lining Construction Corp. to assign the disputed
work to employees represented by it.
3. Within 10 days from this date, Local 30,
United Slate, Tile and Composition Roofers, Damp
and Waterproof Workers Association, AFL-CIO
shall notify the Regional Director for Region 4 in
writing whether it will refrain from forcing the
Employer, by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner
inconsistent with this determination.