Roofers Local 30 (Gundle Construction)

National Labor Relations Board - Board Decisions

Jul 20, 1992

307 N.L.R.B. 1429 (N.L.R.B. 1992)

1429
307 NLRB No. 234
ROOFERS LOCAL 30 (GUNDLE CONSTRUCTION)
1 The disputed work involves the placement of high density poly-
ethylene 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 See, e.g., Teamsters Local 50 (Schnabel Foundation), 295 NLRB
68, 69 (1989).
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
July 20, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 9, 1991, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
Charging Party and the General Counsel filed excep-
tions and supporting briefs. The Respondent filed a
brief in opposition to the exceptions. The General
Counsel filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that Local 30, United Slate, Tile,
and Composition Roofers, Damp and Waterproof
Workers Association, AFL–CIO (the Respondent or
Roofers) did not violate Section 8(b)(4)(i) and (ii)(D)
of the Act by picketing the jobsite of Gundle Lining
Construction Corp. (the Employer or Gundle) or main-
taining a lawsuit against Gundle in district court with
an object of coercing Gundle to reassign disputed
work1 to employees it represents rather than to em-
ployees represented by Local 172, Laborers Inter-
national Union of North America, AFL–CIO (Labor-
ers). Accordingly, he dismissed the complaint. For the
reasons set forth below, we reverse.
1. On November 8, 1989, the Roofers picketed the
landfill site carrying signs stating that Gundle did not
pay union and area wages. According to testimony
credited by the judge, the Union believed Gundle was
using its own unrepresented employees, and the Union
removed the pickets as soon as it learned that Gundle
was using Laborers-represented employees.
Two days before the picketing, Roofers President
Thomas Pedrick protested Gundle’s failure to hire
Roofers-represented employees. Pedrick told Sullivan,
‘‘[W]ell, we have a contract with you,’’ and continued
that he thought the Roofers contract applied to the
landfill work in dispute. Sometime between November
8 and 17, 1989, in a telephone conversation with
Gundle Vice President Tony Priesol, Pedrick stated
that the work in dispute ‘‘basically . . . was his [Roof-
ers’] work.’’
On November 14, 1989, the Respondent sent Gundle
a letter ‘‘constitut[ing] a grievance protesting Gundle’s
violations [sic] of our Collective Bargaining Agree-
ment on the Ocean County landfill job site.’’ Specifi-
cally, the Respondent claimed that Gundle should have
hired journeymen roofers through the Respondent’s
hiring hall. As a remedy for Gundle’s alleged breach
of contract, the Respondent sought backpay for those
individuals not hired at the landfill site.
Based on the above facts, the judge made the fol-
lowing findings: the Respondent picketed to protest the
Employer’s paying its own employees substandard
wages; the Respondent was aggrieved that it was not
given the job and its workers were deprived of em-
ployment; and the Respondent picketed only to cure
the violation of its contract. The judge concluded that
the Union did not seek through its picketing to claim
the disputed work.
Contrary to the judge’s conclusion, the findings he
made compel the conclusion that the Respondent was
claiming the work in dispute and that an object of the
picketing was to coerce Gundle to reassign the work.
The judge implied that one object of the picketing was
to protest Gundle’s failure to pay area standard wages.
The judge’s other findings, however, indicate that the
Respondent’s picketing also had another object, and
that this object was unlawful. We refer specifically to
the findings that the Respondent picketed because em-
ployees it represented were not assigned the disputed
work and in order to advance its contractual claim to
wages for employees not hired to perform the disputed
work.
We stated in the 10(k) proceeding that there was
reasonable cause to believe that the Respondent’s
‘‘area-standards message was designed to mask an un-
lawful object of obtaining the work in dispute for em-
ployees it represents.’’ We need not decide in this pro-
ceeding, however, that area standards was not in fact
an object of the Respondent’s picketing in order to
find a violation. It is well settled that picketing falls
within the scope of Section 8(b)(4)(D) so long as one
object is to coerce an employer to assign work to em-
ployees represented by a particular union rather than to
employees in another union.2
Because an object of the Respondent’s picketing
was to coerce the Employer to reassign the disputed
work to employees the Roofers represent, we find that
the picketing violated Section 8(b)(4)(i) and (ii)(D).
2. The judge stated that, even if the Respondent
were trying to recover the disputed work, the Respond-
ent’s maintenance of its lawsuit against Gundle did not
violate the Act because Section 8(b)(4)(D) was not in-
1430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Whether the Respondent has a meritorious contract claim is thus
irrelevant to the question here. It is not at all uncommon in 10(k)
disputes for both competing unions to have broad jurisdictional
clauses arguably covering the work in question. In any event, the
Board did not, in the underlying 10(k) proceeding, resolve the issue
whether the Respondent’s collective-bargaining agreement clearly
covered work at the Ocean County Landfill after the completion of
the work that was under contract at the time the agreement was
signed. Rather, the Board found that the Laborers agreement with
Gundle was ‘‘effective November 6, 1989, through completion, cov-
ering the disputed work,’’ and that the Roofers’ agreement was ‘‘ef-
fective November 18, through completion, covering work at the
Ocean County Landfill.’’ The Board found that the respective agree-
ments favored neither union with respect to the assignment of the
disputed work. 298 NLRB 951, 953 (1990).
4 Pursuit of such contract claims is not a violation, however, dur-
ing the period prior to the issuance of a 10(k) award. Longshoremen
ILWU Local 7 (Georgia-Pacific), 291 NLRB 89, 92–93 (1988).
Similarly, court action to remedy a breach of a union signatory sub-
contracting clause against a general contractor does not violate the
Act when there have been no coercive actions such as picketing and
when no action has been taken or threatened against the employer
of the employees to whom the work was awarded. Carpenters Local
33 (AGC of Massachusetts), 289 NLRB 1482 (1988). Such a con-
tract enforcement action is not necessarily inconsistent with a work
award to the subcontractor’s employees. Id. at 1484. The present
case is distinguishable from Carpenters Local 33, however, because
Gundle itself is the employer of the employees to whom the work
was awarded. The court action is therefore a collateral attack on the
award itself.
5 Chairman Stephens notes that this would be a different case had
the Respondent never picketed for the work but merely filed a con-
tract grievance. Had it resorted solely to peaceful legal channels, it
would have been privileged under Georgia-Pacific, supra, to main-
tain its lawsuit.
6 298 NLRB 951.
tended to resolve jurisdictional disputes ‘‘that [are] of
the employer’s own making.’’ The judge found that
the Employer ‘‘manufactured the dispute by ignoring
its obligations under the existing [Roofing and Sheet
Metal Contractors’ Association of Philadelphia and Vi-
cinity] agreement and assigning the work to the Labor-
ers.’’ We disagree.
First, to the extent that the judge’s conclusion rests
on the notion that a union is always free to pursue
lawsuits to enforce arguably meritorious contractual
claims for work even after the Board has issued a
10(k) award finding that the work should be awarded
to employees represented by a different union, his rea-
soning is contrary to the Board’s decisions in Laborers
Local 261 (Skinner, Inc.), 292 NLRB 1035 (1989);
Longshoremen ILWU Local 13 (Sea-Land), 290 NLRB
616 (1988), enfd. 884 F.2d 1407, 1413–1414 (D.C.
Cir. 1989); and Longshoremen ILWU Local 32
(Weyerhaeuser Co.), 271 NLRB 759 (1984), enfd. sub
nom. Longshoremen ILWU Local 32 (Weyerhaeuser) v.
Pacific Maritime Assn., 773 F.2d 1012 (9th Cir. 1985),
cert. denied 476 U.S. 1158 (1986). In those cases the
Board held that, even assuming that a union has argu-
ably meritorious contractual claims to particular work,3
it violates Section 8(b)(4)(D) of the Act if it engages
in coercive acts (such as the picketing here) sufficient
to trigger a Section 10(k) proceeding and then, after
the Board issues a 10(k) award under which the work
is awarded to employees represented by a different
union, continues to pursue its contractual claims. Such
post-award conduct is properly prohibited under Sec-
tion 8(b)(4)(D) because it directly undermines the
10(k) award, which, under the congressional scheme, is
supposed to provide a final resolution to the dispute
over which group of employees are entitled to the
work at issue. Longshoremen ILWU Local 32
(Weyerhaeuser Co.), supra at 759. Accord: Longshore-
men ILWU Local 13 v. NLRB, supra at 1414 (if such
conduct were permitted, ‘‘the very purpose of Section
10(k)—to authorize the Board to resolve the jurisdic-
tional dispute—would be totally frustrated’’).4
The Respondent engaged in picketing that clearly in-
voked the Board’s 10(k) jurisdiction. We see no reason
to allow the Respondent to escape the consequences of
that action simply by filing a contract grievance after
it was faced with an unfair labor practice charge and
the threat of a 10(l) injunction that might shut down
the picketing in any event.5
The danger of our dissenting colleague’s position as
we see it is that it gives unions little incentive to re-
solve jurisdictional disputes peacefully. A union can
picket and, if that coercion succeeds in quickly obtain-
ing the work for the employee group represented by
the union, the union will have achieved its objective
in short order. If the affected employer files an
8(b)(4)(D) charge with the Board, however, the union
may then, as the Respondent did here, purport to ‘‘dis-
claim’’ the work by announcing that it no longer seeks
to have its members assigned to the job. It will merely
seek to have them paid for the job through the lawsuit.
Under our dissenting colleague’s view, such a tactic
would be successful. Unions with any kind of contract
claim to the work—and often in our 10(k) cases both
competing unions have an arguable contractual claim
to it—would be free to try picketing or other coercion
first and use grievances and lawsuits as a fallback.
In sum, we conclude that under Board precedent that
is justified by considerations of policy, the Respondent
violated Section 8(b)(4)(D) by refusing to withdraw its
lawsuit to enforce an arbitration award requiring
Gundle to compensate workers represented by the
Roofers for work performed by the Laborers after the
Board issued its 10(k) decision. As noted by the judge,
the Board on June 28, 1990, issued a decision6 under
Section 10(k) of the Act awarding the disputed work
to employees who were represented by the Laborers,
rather than to employees represented by the Respond-
ent. The Respondent, which participated in the 10(k)
hearing, was on notice that there was no longer any
reasonable basis for continuing to prosecute the law-
suit, which was filed prior to the 10(k) award, to con-
firm a contrary arbitration award. We find that by
1431ROOFERS LOCAL 30 (GUNDLE CONSTRUCTION)
7 The Board, under Sec. 10(l) of the Act, filed a petition in district
court seeking to enjoin the Roofers from pursuing its lawsuit. The
Court of Appeals for the Third Circuit affirmed the district court’s
order denying the Board’s 10(l) petition, and expressed views argu-
ably contrary to the law regarding post-10(k) in-lieu claims that we
are applying here. Hoeber v. Roofers Local 30, 939 F.2d 118 (3d
Cir. 1991). The court, however, expressly stated that it was not rul-
ing on the merits of the question whether the Respondent violated
Sec. 8(b)(4)(D) of the Act. Id. at 123. Moreover, its decision to af-
firm the denial of the 10(l) injunction was apparently predicated in
part on a district court finding that the Respondent’s conduct was
at no time aimed at seeking to have those performing the work re-
placed with employees represented by the Respondent. Id. As indi-
cated above, we have made contrary factual findings in this unfair
labor practice proceeding. We are therefore not bound under the law-
of-the-case doctrine to decline to apply our precedents and find a
violation here. See generally Squillacote v. Graphic Arts Local 27,
513 F.2d 1017, 1021 (7th Cir. 1975).
maintaining the suit subsequent to the Board’s 10(k)
determination, the Respondent sought to undermine the
Board’s 10(k) award and coerce the Employer into re-
assigning to its members the work that the Board
found had been properly assigned to employees rep-
resented by the Laborers. Therefore, the Respondent’s
conduct in maintaining the suit after the 10(k) deter-
mination issued violated Section 8(b)(4)(ii)(D) of the
Act.7
We further find the judge’s reliance on Teamsters
Local 107 (Safeway Stores), 134 NLRB 1320 (1961),
to be misplaced. In Safeway, the Board concluded that
Sections 8(b)(4)(D) and 10(k) were not intended to
reach economic action by a union seeking to regain
work for a specific group of employees who were dis-
placed by another group of employees. There, a union
had represented the drivers at a Safeway plant for
about 10 years. Safeway discharged all the drivers in
the unit and transferred the work to its drivers at its
other plants. The union picketed Safeway in protest.
The Board, in those narrow circumstances, found that
no jurisdictional dispute existed within the meaning of
Section 10(k). In the instant case, by contrast, Gundle,
a construction industry employer, had no employees
performing lining work at the jobsite at the time it
made the work assignment to workers represented by
the Laborers and there was no evidence that Gundle
employed a stable work force of employees rep-
resented by the Roofers. The Respondent’s only inter-
est was to secure work for hiring hall applicants on
Gundle’s new cell project. It cannot be said that the
Respondent under these circumstances was attempting
to preserve work for a specific group of displaced em-
ployees whom it represented. See Longshoremen ILA
Local 799 (Atlantic Cement), 280 NLRB 239, 241
(1986).
CONCLUSIONS OF LAW
The Respondent has engaged in unfair labor prac-
tices proscribed by Section 8(b)(4)(i) and (ii)(D) of the
Act by picketing and Section 8(b)(4)(ii)(D) of the Act
by refusing to withdraw after June 28, 1990, its peti-
tion in Roofers Local 30 v. Gundle Lining Construc-
tion Corp., Civil No. 90–2105, in the United States
District Court for the Eastern District of Pennsylvania,
both with an object of forcing or requiring Gundle to
assign the work described below to employees rep-
resented by Local 30, United Slate, Tile, and Water-
proof Workers Association, AFL–CIO rather than to
employees represented by Laborers Local 172. The
work of:
The placement of high density polyethylene pan-
els, which includes removal from rolls and secur-
ing panels with sandbags, onto the ground on
subgrade surfaces at the Ocean County Landfill in
Lakehurst, New Jersey.
ORDER
The National Labor Relations Board orders that the
Respondent, Local 30, United Slate, Tile, and Com-
position Roofers, Damp and Waterproof Workers As-
sociation, AFL–CIO, Philadelphia, Pennsylvania, its
officers, agents, and representatives, shall
1. Cease and desist from picketing and refusing to
withdraw after June 28, 1990, its petition in Roofers
Local 30 v. Gundle Lining Construction Corp., Civil
No. 90–2105, in the United States District Court for
the Eastern District of Pennsylvania, with an object of
forcing or requiring Gundle Lining Construction Corp.
to assign, contrary to the Board’s Decision and Deter-
mination of Dispute reported at 298 NLRB 951 by the
work described below to employees represented by
Local 30, United Slate, Tile, and Composition Roofers,
Damp and Waterproof Workers Association, AFL–CIO
rather than to employees represented by the Laborers
Local 172, Laborers International Union of North
America, AFL–CIO. The work consists of:
The placement of high density polyethylene pan-
els, which includes removal from rolls and secur-
ing panels with sandbags, onto the ground on
subgrade surfaces at the Ocean County Landfill in
Lakehurst, New Jersey.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw its petition in Roofers Local 30 v.
Gundle Lining Construction Corp., Civil No. 90-2105,
in the United States District Court for the Eastern Dis-
trict of Pennsylvania, for work performed by members
of Laborers Local 172 at the Ocean County Landfill in
Lakehurst, New Jersey, for Gundle Lining Construc-
tion Corp.
(b) Reimburse, with interest, Gundle Lining Con-
struction Corp. for any payments it may have made to
the Respondent for the above-described work fol-
lowing the Board’s Decision and Determination of
Dispute. Interest shall be computed in the manner pre-
1432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(c) Post at its business offices, meeting halls, and all
other places where notices to members are customarily
posted copies of the attached notice marked ‘‘Appen-
dix.’’8 Copies of the notice, on forms provided by the
Regional Director for Region 4, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Sign and mail sufficient copies of the notice to
the Regional Director for Region 4 for posting by
Gundle Lining Construction Corp., where notices to
their employees are usually posted, if the Employer is
willing.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER DEVANEY, dissenting.
I disagree with my colleagues. I would not find that
the Respondent violated Section 8(b)(4)(D) of the Act.
A brief chronology follows. During November 1988
through February 1989 and again in July 1989, Gundle
employed employees represented by the Respondent to
perform cell lining work at the Ocean County Landfill,
pursuant to an agreement between Gundle and the Re-
spondent executed on November 18, 1988, and effec-
tive from that date ‘‘through completion.’’ The Re-
spondent picketed the landfill for 2 to 3 hours on No-
vember 8, 1989, upon learning that Gundle had re-
sumed work at the landfill and was not using employ-
ees represented by the Respondent. Five days later,
Gundle filed an unfair labor practice charge contending
that the Respondent, by picketing, violated Section
8(b)(4)(D) of the Act.
The next day, November 14, 1989, the Respondent
filed a grievance contending that Gundle violated the
contract by failing to use employees represented by the
Respondent to perform work at the landfill. By letter
dated January 4, 1990, the Respondent notified the Na-
tional Labor Relations Board’s Regional Office that it
was disclaiming the work at the landfill but would
continue to pursue monetary damages for breach of the
agreement.
On January 17, 1990, following a hearing, a joint
conference board issued a fully articulated seven-page
decision sustaining the Respondent’s grievance, finding
that Gundle violated its contract with the Respondent
by failing to use employees represented by the Re-
spondent for certain cell liner installation work at the
landfill. To remedy this contract violation, the joint
conference board ordered Gundle to ‘‘make whole
those individuals who were deprived of work opportu-
nities, including payment of dues, wage and benefit
fund contributions required by the labor contract.’’ The
award did not order Gundle to employ employees rep-
resented by the Respondent.
The Respondent filed a lawsuit to enforce the joint
conference board’s award on March 26, 1990. On June
28, 1990, the National Labor Relations Board issued a
10(k) decision awarding the disputed work at the land-
fill to employees represented by Laborers Local 172,
rather than employees represented by the Respondent.
The Board has recognized that a union’s filing of an
arguably meritorious work assignment grievance prior
to issuance of a 10(k) determination concerning the
same disputed work is not coercive and, thus, does not
violate Section 8(b)(4)(D) of the Act. See Longshore-
men ILWU Local 7 (Georgia-Pacific), 291 NLRB 89
(1988). In so holding, the Board relied on the strong
statutory policy of encouraging resolution of disputes
through grievance-arbitration machinery and the impor-
tant First Amendment right of preserving access to the
courts, finding that preserving access to grievance ma-
chinery implicated analogous considerations.
Consistent with the rationale underlying that hold-
ing, I would likewise find no 8(b)(4)(D) violation here.
The Respondent’s contract grievance concerning work
at the landfill was arguably meritorious on its face and
its merit was further reflected in the joint conference
board’s favorable decision. Additionally, there was no
showing that Gundle’s work at the landfill was still on-
going after the 10(k) decision issued. Thus, the Re-
spondent’s lawsuit to enforce the award for Gundle’s
contract breach concerned work that, as far as the
record shows, was over by the time the 10(k) decision
issued. Therefore, the Respondent’s lawsuit was not
shown to have imposed monetary liability on Gundle
in connection with work to be done after issuance of
the 10(k) decision. Moreover, the Board’s ultimate as-
signment of the disputed work to employees rep-
resented by a union other than the Respondent did not
negate the Respondent’s contract claim against Gundle,
at least as to work done before the 10(k) award, and
the Respondent had a right to pursue its legitimate
contract claim. Cf. Hutter Construction Co. v. Operat-
ing Engineers Local 139, 862 F.2d 641, 645–646 (7th
Cir. 1988) (Board’s 10(k) award to one union held not
to conflict with arbitrator’s contractual backpay award
to other union). Consequently, I do not find that, even
after the 10(k) decision, the Respondent’s effort to en-
force the arbitration award concerning work done be-
1433ROOFERS LOCAL 30 (GUNDLE CONSTRUCTION)
1 I find it unnecessary to pass on circumstances, such as those in
Skinner, where it was shown that the work in dispute continued after
issuance of the Board’s 10(k) decision and the arbitration award ap-
plied to such work.
fore the 10(k) decision could have coerced Gundle to
assign work contrary to the 10(k) decision.
I believe that Laborers Local 261 (W. B. Skinner),
292 NLRB 1035 (1989), on which my colleagues rely,
is distinguishable. There, the Board found that a
union’s maintenance of a lawsuit seeking to enforce an
arbitration award for payments in lieu of work violated
Section 8(b)(4)(D) of the Act. The Board found that by
continuing the lawsuit the union sought to undermine
the 10(k) award and coerce the employer into reas-
signing the work contrary to the award. In that case,
however, it was shown that the work in dispute contin-
ued beyond the date of the 10(k) award and the arbi-
tration award was applicable to the post-10(k) work;
the union’s pursuit of its lawsuit brought economic
pressure on the employer to assign the work contrary
to the 10(k) award. In my view, that rationale is inap-
plicable here, where it has not been shown that the
work was still ongoing after the 10(k) award issued.1
In finding a violation, my colleagues exaggerate the
legal significance of the Respondent’s 3 hours of pick-
eting. If Gundle’s assignment of work to employees
not represented by the Respondent arguably violated
Gundle’s contract with the Respondent, the Respondent
had a right to file a grievance over this matter regard-
less of whether the Respondent engaged in picketing.
The sequence in which the Respondent engaged in
picketing and filed its grievance has little significance.
Moreover, contrary to my colleagues, the Respondent’s
‘‘tactic’’ of seeking only damages for Gundle’s alleged
contract breach would not guarantee success. Rather,
the Respondent’s success in obtaining relief for
Gundle’s alleged contract breach presumably would
depend on the merits of the Respondent’s contract
claim.
Further, even if the Respondent had refrained from
picketing, and thus not engaged in a coercive act that
could trigger a 10(k) proceeding, the Respondent, con-
trary to Chairman Stephens’ view, would not nec-
essarily have been privileged to maintain its contract-
enforcement lawsuit. Absent the Respondent’s pick-
eting, Laborers Local 172, which represented the em-
ployees to whom Gundle had assigned the work, might
well have responded to the Respondent’s work assign-
ment grievance by threatening to picket Gundle if the
work were reassigned. Such a threat in itself may serve
as an adequate predicate to a 10(k) proceeding and
may result in a 10(k) award in favor of the union that
made the threat. Further, if the union that did not make
the threat pursues its grievance or maintains its lawsuit
to enforce any resulting arbitration award subsequent
to the 10(k) decision, it may, at least under my col-
leagues’ view of the law, be held to violate Section
8(b)(4)(D). See, e.g., Electrical Workers IBEW Local
202 (W. B. Skinner), 271 NLRB 171 (1984) (10(k)
proceeding stemming from IBEW’s threat to picket
following Laborers’ filing of work-assignment griev-
ance resulted in 10(k) award favoring IBEW); Labor-
ers Local 261 (W. B. Skinner), 292 NLRB 1035
(1989) (Laborers maintenance of arbitration enforce-
ment lawsuit after issuance of 10(k) award favoring
IBEW held to violate Section 8(b)(4)(D)). Thus, even
if the Respondent had pursued solely the course of
grievance, arbitration, and court enforcement and re-
frained from picketing, it still might well have been
the subject of an 8(b)(4)(D) proceeding.
Accordingly, I would dismiss the complaint.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT picket and refuse to withdraw after
June 28, 1990, our petition in Roofers Local 30 v.
Gundle Lining Construction Corp., Civil No. 90–2105,
in the United States District Court for the Eastern Dis-
trict of Pennsylvania, with an object of forcing or re-
quiring Gundle Lining Construction Corp. to assign,
contrary to the Board’s Decision and Determination of
Dispute reported at 298 NLRB 951 (1990), the work
described below to employees represented by Local 30,
United Slate, Tile, and Composition Roofers, Damp
and Waterproof Workers Association, AFL–CIO rather
than to employees represented by Local 172, Laborers
International Union of North America, AFL–CIO. The
work consists of:
The placement of high density polyethylene pan-
els, which includes removal from rolls and secur-
ing panels with sandbags, onto the ground on
subgrade surfaces at the Ocean County Landfill in
Lakehurst, New Jersey.
WE WILL withdraw our petition in Roofers Local 30
v. Gundle Lining Construction Corp., Civil No. 90–
2105, in the United States District Court for the East-
ern District of Pennsylvania, for work performed by
members of Laborers Local 172 at the Ocean County
Landfill in Lakehurst, New Jersey, for Gundle Lining
Construction Corp.
WE WILL reimburse, with interest, Gundle Lining
Construction Corp. for any payments it may have
made to our labor organization for the above-described
1434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The agreement was a form agreement, and the underlining sig-
nified where material had to be filled in. The underlining has no
other significance, and the only reason why the word ‘‘completion’’
is capitalized is that a different typewriter was used to insert that
word, as well as others, on the form.
2 The term of this agreement was from May 1, 1986, to April 30,
1989. According to documents filed in the civil action, a new agree-
ment became effective as of May 1, 1989.
3 All dates hereafter refer to the year 1989, unless otherwise indi-
cated.
work following the Board’s Decision and Determina-
tion of Dispute.
LOCAL 30, UNITED SLATE, TILE, AND
COMPOSITION ROOFERS, DAMP AND
WATERPROOF WORKERS ASSOCIATION,
AFL–CIO
Scott C. Thompson, Esq., for the General Counsel.
William Josem, Esq. and Richard Markowitz, Esq.
(Markowitz & Richman), of Philadelphia, Pennsylvania, for
the Respondent.
Lawrence Baccini, Esq. and Gary Tocci, Esq. (Schnader,
Harrison, Segal & Lewis), for the Charging Party.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. The
complaint, dated December 14, 1990, alleges that Respondent
Local 30, United Slate, Tile, and Composition Roofers,
Damp and Waterproof Workers Association, AFL–CIO (Re-
spondent or Roofers) violated Section 8(b)(4)(i) and (ii)(D)
of the National Labor Relations Act (the Act) by continuing
to maintain and refusing to withdraw a civil action it brought
against Charging Party Gundle Lining Construction Corp.
(Gundle) in the United States District Court for the Eastern
District of Pennsylvania. Respondent denied that it violated
the Act in any manner, and the hearing in this proceeding
took place on February 26, 1991, in Philadelphia, Pennsyl-
vania.
Jurisdiction is conceded. Gundle is a Texas corporation en-
gaged in the manufacture and installation of high density
polyethylene linings throughout the United States, including
the installation of linings at the Ocean County Landfill in
Lakehurst, New Jersey (Landfill). During the year ending
December 14, 1990, it purchased and received goods and
materials valued in excess of $50,000 directly from points
outside New Jersey. At all times material, Gundle has been
engaged in the placement of high density polyethelene pan-
els, which includes removal from rolls and securing panels
with sand bags, onto the ground or subgrade surfaces at the
Landfill. I conclude, as Respondent admits, that Gundle is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. I also conclude that the
Roofers and Laborers Local 172, Laborers International
Union of North America, AFL–CIO (Laborers) are each
labor organizations within the meaning of Section 2(5) of the
Act.
Gundle installs cell liners at landfills throughout the
United States. Cells are particular areas of a landfill into
which garbage is placed. When the cell is filled, a liner is
placed over the cell, the process being called ‘‘capping.’’
Gundle lined cells at the Landfill prior to September 1988
and from September 1988 through February 1989. On No-
vember 18, 1988, Gundle executed an agreement with the
Roofers for work at the Landfill, agreeing in part ‘‘to abide
by all terms and conditions of collective bargaining agree-
ments in effect as of 11/18/88 through COMPLETION’’1 be-
tween Respondent and the Roofing and Sheet Metal Contrac-
tors’ Association of Philadelphia and Vicinity (RSMCA).2
Subsequently, for about a week in July 1989,3 Gundle
capped one of the cells that it had lined earlier that year and
did some repair work. Gundle employed workers referred by
the Roofers for that work and otherwise complied with the
RSMCA agreement.
Within the next 2 months, according to Gundle, the devel-
oper of the Landfill became disenchanted with the work per-
formed by the employees referred by Respondent, and
Gundle decided not to use the Roofers should it receive any
more jobs on the Landfill. When Mike McCann, Respond-
ent’s business agent, made inquiry about when Gundle would
be doing more work at the Landfill, Mike Sullivan, Gundle’s
project manager, answered that he had no idea when the job
was going to begin, but Sullivan did not tell him that Gundle
was not going to use Respondent.
Gundle made its bid to perform the lining work on cell 4
on September 5, and it was accepted on September 22.
Gundle assigned the disputed work to employees represented
by the Laborers by letter dated October 24. Thereafter,
Gundle and the Laborers executed a project agreement on
November 6, according to which Gundle agreed to be bound
by the modified term of the 1986–1989 Associated General
Contractors of New Jersey contract; and work began that
day.
That same day, Gundle representatives attended a hearing
at the RSMCA in Philadelphia of the Roofers’ grievance
which claimed that Gundle employed its own unrepresented
employees to line work at a Tullytown, Pennsylvania landfill,
rather than employees referred by Respondent. During that
hearing, Respondent learned that Gundle had started its work
at the Landfill, also without employees referred by Respond-
ent. The Roofers’ president, Tom Pedrick, asked Sullivan
whether it was true that Gundle was on site at the Landfill.
According to Pedrick, Sullivan said yes and that Laborers
represented employees were performing the work. But
Pedrick testified that Sullivan never advised him that em-
ployees referred by another union were performing the work.
Pedrick thus assumed that Gundle was again using its own
unrepresented employees, as it had at the Tullytown project.
On November 8, four individuals wearing Roofers’ jackets
picketed the Landfill carrying signs stating that Gundle did
not pay union and area wages. After working approximately
2 to 3 hours, Gundle’s employees, who included those re-
ferred by the Laborers, left the job at the request of the
owner of the Landfill. The picketing, which had lasted ap-
proximately 3 hours, then ceased and has not recurred. Ac-
cording to Pedrick, the picketing ended immediately when
Respondent discovered that employees represented by the
Laborers were on the job.
1435ROOFERS LOCAL 30 (GUNDLE CONSTRUCTION)
4 Respondent’s name in the action it instituted is different from the
one it admitted was its name in this proceeding. 5 See 2 Morris, The Developing Labor Law § 1252 (2d ed. 1983).
Between November 8 and 17, Gundle’s vice president for
construction, Tony Priesol, talked by telephone to Pedrick.
According to Priesol, Pedrick asked why Gundle was using
Laborers represented employees on the Ocean County job.
Pedrick added that he knew of only one instance in which
the Laborers performed liner installations in New Jersey and
that basically it was his work. Priesol sent a letter dated No-
vember 17 to the Roofers stating, among other things, that
Gundle no longer had an agreement with it covering the
work at Ocean County. The previous agreement, dated No-
vember 18, 1988, expired on January 27, 1989, upon com-
pletion of the job which was being performed when the con-
tract was signed. The letter stated that the work at cell 4 had
been assigned to employees represented by the Laborers.
In the meantime, on November 14, McCann sent Gundle
a letter ‘‘constitut[ing] a grievance protesting Gundle’s
vioaltions [sic] of our Collective Bargaining Agreement 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.’’ On December 5, McCann re-
quested a joint conference board meeting to consider the
Roofers’ grievance against Gundle that it had violated its
collective-bargaining agreement and, more specifically:
It has refused to hire journeymen roofers through the
Union’s hiring hall and has refused to pay those jour-
neymen roofers in its employ the wage rates and fringe
benefit contributions required by the collective bar-
gaining agreement. The Union is claiming backpay for
those individuals not hired on this job together with de-
linquent fringe benefit contributions, interest and liq-
uidated damages.
The RSMCA, by letter dated December 6, advised Gundle
that Respondent’s grievance had been scheduled for January
3, 1990. On December 28 Priesol responded that the joint
conference board lacked jurisdiction over Gundle for the dis-
pute at the Landfill because Gundle’s November 18, 1988
agreement with Respondent expired upon completion of its
then-current contract with the landfill. The letter added that
the disputed work was the subject of an entirely separate
contract 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.
On January 17, the board sustained Respondent’s grievance
and directed Gundle to make whole those individuals de-
prived of work opportunities, by paying contractually re-
quired dues, wages, and benefit funds contributions.
By letter dated January 4, 1990, Respondent informed the
Board’s Regional Office, among other things, that it was not
claiming the work at the Landfill and that it was specifically
disclaiming such work. The letter also stated that Respondent
would continue to pursue monetary damages from Gundle
for breach of its collective-bargaining agreement. Respondent
did. On March 26, 1990, it instituted a proceeding in the
United States District Court for the Eastern District of Penn-
sylvania in Roofers Local 30 v. Gundle Lining Construction
Corp.,4 Civil Action No. 90-2105, for an order requiring
Gundle to comply with the terms of the award of the joint
conference board.
I conclude that Respondent has not violated the Act, for
two reasons. The first relates directly to the conversation be-
tween Sullivan and Pedrick on November 6. Sullivan claimed
that he had specifically mentioned that Gundle had assigned
the work to the Laborers, and Pedrick denied it. I credit
Pedrick, because the Roofers’ actions thereafter are con-
sistent with his claim that he thought that Gundle was again
violating the collective-bargaining agreement by using its
own employees on the job, the same violation that the parties
were arbitrating that very day. Consistent with that notion,
Respondent picketed the Landfill with signs protesting the
rates and wages being paid, having knowledge that Respond-
ent paid its employees far less at the Tullytown job than the
contract required. When Respondent ascertained that the La-
borers were now involved, it withdrew its pickets and has
not picketed again. Obviously, Respondent felt aggrieved that
it was not given the job and that its workers were deprived
of employment, so it filed a grievance to cure what it
thought was a violation. Under these circumstances, because
it never sought through its picketing to claim the work from
the Laborers but only to cure the violation of its contract, I
conclude that Respondent has not violated the Act.5
In any event, even if I found that it was trying to recover
this work, either from the Laborers or from Gundle’s unrep-
resented employees, I would still conclude that there was no
violation of the Act. On November 13, 1989, Gundle filed
its unfair labor practice charge in this proceeding, and the
10(k) hearing was held on March 13 and 21, 1990. The
Board issued its Decision and Determination of Dispute on
June 26, 1990, 298 NLRB 951, in which it determined that
the Laborers was entitled to the work in dispute and that Re-
spondent was not, and found reasonable cause to believe that
Respondent had violated Section 8(b)(4)(D) of the Act. It de-
fined the work in dispute as ‘‘the placement of high density
polyethylene panels, which includes removal from rolls and
securing panels with sandbags, onto the ground on subgrade
surfaces for Gundle Lining Construction Corp. at the Landfill
in Lakehurst, New Jersey.’’ However, even after the Board
issued that Decision, Respondent continued to litigate and
prosecute its civil action. Its Motion for Summary Judgment
was denied on January 10, 1991, because the court found a
triable issue of fact in the parties’ dispute about what the
word ‘‘completion’’ referred to in the collective-bargaining
agreement.
The Board, in its 10(k) determination, had no similar prob-
lem. It found that Respondent’s contract covered the disputed
work, and none of the parties in this proceeding directly at-
tacks that finding. Under Longshoremen ILWU Local 6
(Golden Grain), 289 NLRB 1 (1988), the Board’s 10(k)
holding is not res judicata for all purposes. However, it
would appear that the Board reviewed all the testimony in
the 10(k) hearing and was unimpressed with Gundle’s con-
tention that its contract ended when the work that was ongo-
ing at its execution date had been completed. That was in
February. Rather, the Board must have known that Gundle
worked on the Landfill on a new job in July and yet contin-
ued to comply with the agreement, not only to employ work-
ers referred to it by Respondent but also to contribute to Re-
1436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Accord: Maritime Union (Puerto Rico Marine), 227 NLRB 1081
(1977); Seattle Building Trades Council (Seattle Olympic Hotel), 204
NLRB 1126, 1127 (1973).
spondent’s health and welfare and retirement plans, which it
would not have done otherwise, knowing that such contribu-
tions would have violated Section 302 of the Act if no con-
tract existed. See Nelson Electric v. NLRB, 638 F.2d 965,
968 (1981); Vin James Plastering Co., 226 NLRB 125, 129–
130 (1976). Thus, Gundle must have been aware that ‘‘com-
pletion’’ meant something other than what it now contends
in this proceeding, perhaps until completion of the Landfill.
In light of these facts, I am loathe to upset the Board’s
factual finding, which is based on the same record before
me, that Respondent’s contract, entered into by Gundle on
November 8, 1988, covered the disputed work. A year after
that, a year in which Gundle had complied with the agree-
ment and had employed employees referred to by Respond-
ent, Gundle decided to renounce its binding agreement. The
day it started working on cell 4, it signed an agreement with
the Laborers. If it had not entered into a new agreement with
the Laborers and had not simultaneously disavowed the
RSMCA contract, it clearly would have been required to em-
ploy workers referred by the Roofers.
This is what Respondent now argues (it did not raise this
contention to the Board), contending that Section 8(b)(4)(D)
is not aimed at resolving a jurisdictional dispute that is of
the employer’s own making and is not between two em-
ployee groups, citing Longshoremen ILWU v. NLRB, 781
F.2d 919 (D.C. Cir. 1986); and Teamsters Local 107
(Safeway Stores), 134 NLRB 1320, 1322 (1961).6 In
Safeway, Local 107 had for some 10 years represented the
drivers at Safeway’s Wilmington, Delaware plant. Safeway
discharged its three Wilmington drivers, the entire Local 107
bargaining unit, and arranged for the driving to be done by
drivers at its Maryland and New Jersey plants. The Board re-
fused to find the existence of a jurisdictional dispute, noting
that: ‘‘[I]t was not intended that every time an employer
elected to reallocate work among his employees or supplant
one group of employees with another, a ‘jurisdictional dis-
pute’ exist within the meaning of’’ Section 8(b)(4)(D).
Like Safeway, Gundle effectively transferred its work
away from the Roofers and attempted to evade a contract
under which it had been bound for a year by the simple ex-
pedient of entering into a new collective-bargaining agree-
ment with another union, and at cheaper rates. Even if the
Roofers attempted to apply economic pressure to regain the
jobs, its protest is not the kind of dispute that Sections
8(b)(4)(D) and 10(k) were intended to resolve. That typically
involves a situation where two competing employee groups
are vying for the work, and the employer is willing to assign
the work to either if the other will let him alone. Here, how-
ever, Gundle manufactured the dispute by ignoring its obliga-
tions under its existing RSMCA agreement and assigning
work to the Laborers, allegedly because the owner of the
Landfill did not like the employees referred by the Roofers.
The Laborers would never have had any claim to the work
in dispute had Gundle not signed an agreement with it the
very day that work began on cell 4. If the Board were to bar
the Roofers’ activities and apply 10(k) standards to what is
essentially a breach of contract, including the Board’s pri-
mary reliance on the Employer’s preference, the Board
would permit any employer to evade its collective-bargaining
agreement by merely signing an agreement with another
union and then assigning its work to that other union. Surely,
that is not what the Act intended.
The counsel for the General Counsel contends, however,
that Gundle was an innocent employer, as was the employer
in Safeway, because Gundle ‘‘reasonably believed that it was
no longer a party to a contract with’’ Respondent when it en-
tered into an agreement with the Laborers. His brief cites no
support for the proposition that an employer must merely
have a reasonable belief to avoid the consequences of its
own actions. Here, the Board’s 10(k) determination held that
Gundle had a contract with Respondent covering the work in
dispute. The facts show that Gundle honored that agreement
after the alleged ‘‘completion’’ of the work it was per-
forming when the contract was entered into. Respondent’s
belief was, by consequence, unreasonable (as shown by its
own actions) and incorrect (as demonstrated by the Board’s
Determination of Dispute.)
[Recommended Order for dismissal omitted from publica-
tion.]