Roofers Local Union No. 115

National Labor Relations Board - Board Decisions

Dec 8, 1967

168 N.L.R.B. 756 (N.L.R.B. 1967)

756 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
Roofers Local Union No. 115 and Bonitz Insulation
Company of Alabama and F. T. Thayer , General
Contractor and Laborers International Union of
North America , Local 1441 . Case 26-CD-49
December 8, 1967
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed by Bonitz Insulation Company
of Alabama, herein called Employer, or Company,
alleging that Roofers Local Union No. 115, herein
called Roofers, had violated Section 8(b)(4)(D) of
the Act by engaging in certain proscribed activity
with an object of forcing or requiring the Company
to assign the work in dispute to the Roofers rather
than to Laborers International Union of North
America, Local 1441, herein called Laborers. A
hearing was held on October 3, 1967, before Hear-
ing Officer William B. Kenney. All parties, includ-
ing the International Union of Operating Engineers,
Local 369, herein called Operating Engineers, and
Cement Masons Local No. 521 of the Operative
Plasterers and Cement Masons International As-
sociation of the United States and Canada, herein
called Cement Masons, both of which claimed an
interest in the proceeding, participated in the hear-
ing and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to ad-
duce evidence bearing on the issues. Thereafter, the
Employer and Roofers filed briefs and Roofers filed
a reply brief.
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.
Upon the entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated and we find that Bonitz In-
sulation Company of Alabama, an Alabama cor-
poration, is engaged in the contracting business,
primarily in the installation of light concrete insula-
tion . During the past fiscal year, it performed ser-
vices valued at more than $500,000, of which ser-
vices in excess of $50,000 were performed outside
the State of Alabama.
We find, accordingly, that the Employer is en-
gaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and we find that the
Roofers and the Laborers, as well as the Operating
Engineers and Cement Masons, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background
The dispute herein involves the preparation and
installation of a poured roof deck insulation called
"Zonolite," which is actually an aggregate mixed
with Portland cement (a bonding agent) and water.
The following steps are involved in applying this
material: First, the bulk cement and bagged
Zonolite aggregate are dumped into a hopper on the
ground. Then the pump operator, who, all parties
concede, is represented by the Operating En-
gineers, pulls the materials up through a grain eleva-
tor to a mixer where it is mixed and pumped
through a hose to the top of the building, poured
onto a precast concrete structural roof base, and
sealed. The depth of the insulation is determined by
a screed bar set at a specific elevation. The
finishers, conceded by all parties to be represented
by the Cement Masons, use this bar to screed the
Zonolite to the proper thickness, finishing the insu-
lation. After the insulation has set for a few days,
the structure is made watertight by the installation
of a built-up roof of base sheets of felt, asphalt,
gravel, and tar. It is not disputed that such work is
performed by the Roofers, who of necessity are em-
ployed by other contractors, because the instant
Employer is not engaged in that phase of the roofing
business.'Accordingly, the instant dispute is limited
to the pouring of the raw materials into the hopper;
the mixing of the Zonolite, Portland cement, and
water; pouring the mixture through the hose onto
the roof base; and sealing the joints, all of which has
been assigned to laborers by the Company.
The Company has a crew of two cement masons,
one operating engineer, and a few laborers, all from
Birmingham, where it is based. It transports its
crew to any other cities where it performs work. In
some locations it must hire local laborers to supple-
ment its crew. In 1967 the Company first did work
in Memphis, the site of the instant controversy. In
February and April 1967, it worked with its Bir-
mingham crew at two jobsites in Memphis, and in
April the Roofers claimed the work performed by
the laborers. The Company returned to Memphis in
August 1967 to work for F. T. Thayer, General
Contractor, pouring the Zonolite roof insulation at
168 NLRB No. 102
ROOFERS LOCAL
the Wooddale High School . The Company again
brought its permanent crew , supplemented with
members of the Memphis Laborers Local.
On August 1 the Roofers placed a picket on the
jobsite from 4:30 to 5 p .m. with a sign stating that
nonunion roofers were employed on the project. On
August 2 , the picket reappeared from approximate-
ly 7 to 7:45 a.m _ with a similar sign . While no one on
the -jobsite left work , workers reporting to the
jobsite refused to cross the picket line. The Em-
ployer , after some of its material had been damaged,
called Hawkins, the Roofers ' business agent, to
work out a compromise whereby the Company
would supplement its permanent crew with local
roofers rather than laborers . Hawkins refused any
such arrangement , indicating that he would not
allow Roofers and Laborers to work together.
However, the job was finished without further
picketing.
B. The Contentions of the Parties
The Roofers concedes that the purpose of the
picketing was to force Board determination of the
dispute , and contends that the work should be as-
signed to it because (a) of area practice , (b) its col-
lective-bargaining agreements cover the disputed
work with the only two Memphis firms that do such
work , and (c) its members possess the requisite
skills. The Employer and the Laborers contend that
the laborers should perform the work on the basis
of Employer , industry , and area practice, the
laborers' possession of the requisite skill , and the
Employer's assignment of the work to them.
C. The Applicability of the Statute
The charges herein allege violations of Section
8(b)(4)(D) of the Act. The record shows, and the
Roofers concedes , that on August 1 and 2, 1967,
the Roofers established a picket at the jobsite to
support its claim for the disputed work. On the
basis of the entire record , we conclude that there is
reasonable cause to believe that a violation of Sec-
tion 8 (b)(4)(D) has occurred and that the dispute is
properly before the Board for determination.
D. The 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 relevant fac-
tors.'
' N L.R.B v. Radio & Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers AFL-CIO
(Columbia Broadcasting System), 364 U.S. 573; International Associa-
tion of Machinists, Lodge No. /743, AFL-CIO (J A Jones Construction
Company), 135 NLRB 1402, 1411
UNION NO. 115 757
1. Certification and bargaining agreements
The evidence indicates there is no Board certifi-
cation relative to the disputed work. With respect
to bargaining agreements, the Roofers introduced
evidence that it has agreements covering the
disputed work with the only two Memphis firms
that do such work. However, these contracts do not
encompass an assignment of the work here in
dispute, as they are not with the Employer involved
herein, but with other employers whose assignment
of the work is not in issue. Therefore. there is no
Board certification or collective-bargaining agree-
ment favoring the Roofers.
2. Jurisdictional awards
Although not made a part of the record herein,
the Roofers in its brief refers to an agreement en-
tered into about 2 years ago, whereby all poured
roof deck insulation would be performed with a
composite crew of one operating engineer, one ce-
ment finisher, and the remainder, roofers. How-
ever. since neither the Employer nor the Laborers
was a party to the agreement, the agreement, even
if part of the record, would not be determinative
herein.2
3. Company, industry, and area practice
The record shows that since the Company was
established in 1957, it has always assigned the work
of preparing and installing the poured insulation in
the Birmingham area to its own employees
represented by the Laborers, as it has done in all
other cities where it performs the disputed work.
When additional men are needed, moreover, the
Company always hires laborers.
Evidence as to industry practice is inconclusive,
since the record reveals that throughout the country
there are contractors using laborers to perform the
disputed work and others using roofers. Area prac-
tice is similarly inconclusive; by weight of numbers
alone, it might tend to favor the claim of the
Roofers, but in our view this is outweighed by other
factors favoring the claim of the Laborers.
4. Skills
There is no showing that the disputed work
requires skills specifically possessed by the
Roofers. On the contrary, the Employer testified
that the laborers possessed the skills to perform
readily and satisfactorily the work in question.
2 International Union of Operating Engineers , Local 66, AFL-CIO
(Frank P. Badolato & Son ), 135 NLRB 1392, 1399, 1400
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS AS TO THE MERITS OF THE DISPUTE
Having considered all pertinent factors. we con-
clude that employees represented by the Laborers
are entitled to perform the work in dispute.
Laborers and Roofers are equally skilled in the per-
formance of the work , and the Company . which as-
signed the work to laborers , has been satisfied with
the quality of their work . Moreover , the assignment
to the laborers is consistent with the past practice
of the Company , and is not inconsistent with any
otherwise uniform area of industry practice. We
conclude that the Employer 's assignment of the
work to the laborers should not be disturbed. On
the basis of the entire record , therefore , we shall
determine the existing jurisdictional controversy by
awarding to the laborers employed by the Company
and represented by Laborers , rather than to in-
dividuals represented by the Roofers, the work of
preparing and installing the poured roof deck insula-
tion . The present determination is limited to the
particular controversy which gave rise to this
proceeding.
DETERMINATION OF DISPUTE
the foregoing findings and the entire record in this
case , the National Labor Relations Board makes
the following Determination of Dispute:
1. Laborers represented by Laborers Interna-
tional Union of North America , Local 1441, and
employed by Bonitz Insulation Company of
Alabama, are entitled to perform the tasks of dump-
ing raw materials into the hopper , mixing them,
pouring the mixture onto the roof base , and sealing
the joints , in connection with the installation of
poured roof deck insulation at the Wooddale High
School jobsite in Memphis , Tennessee.
2. Roofers Local Union No. 115 is not entitled,
by means proscribed by Section 8(b)(4)(D) of the
Act, to force or require Bonitz Insulation Company
of Alabama to assign the work in dispute to indu-
viduals represented by the aforesaid Union.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Roofers Local
Union No . 115 shall notify the Regional Director
for Region 26, in writing, whether or not it will
refrain from forcing or requiring Bonitz Insulation
Company of Alabama , by means proscribed by Sec-
tion 8 (b)(4)(D), to assign the work in dispute in a
manner inconsistent with the above determination.
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the basis of