Ship Scaling Contractors Association

National Labor Relations Board - Board Decisions

Nov 18, 1949

87 N.L.R.B. 92 (N.L.R.B. 1949)

In the Matter Of SHIP SCALING CONTRACTORS ASSOCIATION and SHIP
PAINTERS LOCAL UNION 961, A. F. L.
Case No. 20-CD-7.-Decided November 18, 1949
DECISION
AND
ORDER
STATEMENT Or THE CASE
This proceeding arises under Section 10 (k) of the Act, as amended
by Labor Management Relations Act,' 1947, which provides that
"Whenever it is charged that any person has engaged in an unfair
labor'practice within the, meaning of paragraph 4 (D) of Section 8
(b), the Board is empowered and directed to hear and determine the
dispute out of which such unfair labor practice shall have
arisen. . . "
On June 24, 1949, Ship Scaling Contractors Association, herein
called the Association; filed with the Regional Director for the Twen-
tieth Region of the Board an amended charge alleging, in substance,
that Ship Painters Local Union 961, A. F. L., herein called Local.
961, had violated Section 8 (b) (4) (D) of the Act in that, on or
about February 23 and February 24, 1949, and at various times there-
after, it picketed The President Monroe and The W. H. Gordon, ships
of American President Lines being painted on the San Francisco
water front by the Ohm Ship Service Company and The United Ship
Service Company, members of the Association, with the object of
forcing or requiring The Ohm Ship Service Company, The United
Ship Company, and other members of the Association to assign paint-
ing to painters belonging to Local 961. Thereafter, pursuant to Sec-
tions 203.74 and 203.75 of the Board's Rules and Regulations, Series
5, the Regional Director investigated the charge and provided for. an
appropriate hearing, upon due notice to all the parties. The hearing
was held before a hearing officer of the Board on August 1, 2, 3, and 4,
1949.
At the hearing, all parties appeared, participated, and were af-
forded full opportunity to be heard, to examine and cross-examine
87 NLRB No. 14.
92
SHIP SCALING CONTRACTORS ASSOCIATION 93
witnesses, and to introduce evidence. bearing on the issues.. The rul-
ings of the hearing officer made at the hearing are free from prejudi-
cial error and are hereby affirmed. Local 961 filed a brief with the
Board.
Upon the entire record in the case, the Board 1 makes the following :
FINDINGS OF FACT
1. The business of the Association and its members
Ship Scaling Contractors. Association is a trade association of em-
ployers who are engaged as contractors in "cleaning and maintenance
of ships, painting of ships, hulls and parts, and general conditioning
or scaling and sand blasting or spraying of ships and ships' parts" in
the San Francisco Bay area. These employers, as contractors, paint
ships belonging to the American President Lines, among others. We
take official notice of our finding in a prior case that American Presi-
dent Lines is engaged in commerce within the meaning of the Na-
tional Labor Relations Act.2 We find that the Association and its
members are engaged in commerce within the meaning of the Act.
2. The alleged dispute
a. The facts
The members of the Association employ painters who are mem-
bers of Ship Scalers & Painters Local 2, International Longshore-
men's and Warehousemen's Union, C. I. 0., herein called Local 2,
under a contract between that labor organization and tlie. Associa-
tion, dated August 23, 1948, which contains a hiring-hall clause. The
contract established a wage scale which permitted members of the
Association to pay Local 2 members for hand-brush painting ap-
proximately 28 cents an hour less than the rate established for such
work by Local 961 with other employers in the San Francisco area.
Before. February 1949, Local 961 received numerous complaints
from contractors doing business with Local 961 to the effect that com-
peting contractors paid a lower wage rate to members of Local 2
for the same type of work. In January 1949, a membership meet-
ing of Local 961 decided to "have a protest line out, and try to in-
form the public and other unions, or other people that were doing
that type of work below our scale of wages, that they should demand
1 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor
Relations Board , has delegated its powers in connection with this case to a three -member
panel [Chairman Herzog and Members Houston and Reynolds].
'American President Line, Ltd., 69 NLRB 1354.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[that] other contractors [boost] their wage scale . . . up to
ours."
On February 23 and 24, 1949, Local 961 placed pickets or a "protest
,line" at the entrance to two piers in San Francisco harbor at which
the exterior of two American President Lines ships, The President
Monroe and The W. H. Gordon, were being painted by two contractors,
United Ship Service Company and Ohm Ship Service Company,
members of the Association, with painters furnished by Local 2 under
the hiring-hall provision of the contract referred to above.
The pickets were instructed by officers of Local 961 that no work
stoppage was contemplated and to permit anyone who approached
the picket line to pass; those who approached, including teamsters,
longshoremen, and Local 2 painters, were permitted to pass; and Local
961 continued to dispatch men from its own hiring hall to do in-
terior painting work on one of the picketed ships for another con-
tractor, and the dispatched men continued working during the pick-
eting. However, cargo-laden trucks backed away from the picket
line and departed. There were no placards or banners displayed by
the pickets but they wore arm bands bearing the inscription, "AFL
picket."
On February 24, 1949, the pickets distributed pamphlets which, ac-
cording to. the credible testimony of the business representative of
Local 2, described the controversy as a "dispute between the Painters
961, and the President Line, because of a wage differential," and which
did not suggest, so far as he recalled, that the "American President
Lines should give the work to one group, as contrasted with another."
Soren B. Ohm, sole owner of Ohm Service Co., credibly testified that
the pamphlets stated in substance : "You are working for scab wages.
The CIO is underpaid so many cents an hour." 3
There was no picketing after February 24.
' On the other hand, Matthew Breen, sole owner of United Ship Service Co., testified that
when Breen complained to Jack Shelley, then secretary of the San Francisco Labor Council,
that it was not a just picket line, Shelley, who appeared at the scene of the picketing,
stated that "painting is painting" and "if I was not convinced it was a fair picket line,
I would not have authorized *it" ; that, when Breen asked why the picket was established
and accused the AFL of trying to "steal the work," Shelley stated "that's not so. Painting
Is painting and belongs to the painters, and if I thought otherwise, I would be the first to
call it off" ; and that Shelley mentioned the difference in the wage scale paid Local 2 men,
and stated that "it might be advisable for the contractors to get under the AFL banners."
Shelley did not testify.
However, John D. O'Dea, the business representative of Local 961, testified without
contradiction that he neither sought nor obtained sanction for the picket line from the
San Francisco Labor Council, of which Local 961 Is a constituent member, and that in
effect, Local 961 did not authorize Shelley to act in any way on behalf of Local 961 in
connection with the picketing or the dispute out of which it arose. We need not and do
not make a finding as to wjiether Shelley made the statements attributed, to him by Breen,
as the record does not satisfy us that Shelley was authorized to speak on behalf of Local 961.
SHIP SCALING CONTRACTORS ASSOCIATION 95
After the picketing ceased, a series of meetings took place between
representatives of Local 2 and Local 961.
William L. Holihan, superintendent of the General Ship Service
Co., a member of the Association, testified that on April 11, 1949,
General Ship Service Co. was engaged in painting an Army ship,
The Sadao 111unimori, colder subcontract with West Winds, Inc., a
prime contractor, with painters furnished by Local 2; that about that
time, he received a telephone call from West Winds in which he was
told that "West Winds had been notified from the AFL that we could
not go on with the work" ; that he was further told by Brewster, West
Winds' representative, that "there was a threatened work stoppage"
and Brewster "wanted to know whether we had jurisdiction to do that
work or not"; and that on or about April 13, 1949, at a meeting to
settle the matter, after a discussion in which AFL representatives
stated that it had a master contract covering all the shipyards and a
CIO representative asserted that painting of "tank tops and bilges
had always belonged to the scalers," O'Dea stated that "the painting
belonged to the AFL Painters Union, and they were going to do the
painting along the waterfront" .. and while General Service could
continue with the West Winds' job, "we aren't going to do anymore
painting." O'Dea testified that he attended the April 13 meeting to
investigate a complaint that West Winds was employing non-AFL
men in violation of a master agreement between the AFL metal Trades
Council, of which Local 961 is a member, and the Pacific Coast Ship-
builders, dated June 11, 1947; that, at the meeting, Local 2 claimed
that its men were engaged in "cleaning" and "red-leading" work
rather than painting ; and that he suggested that the work could con-
tinue and that the two unions "get together and see if we couldn't
arrive at a happy medium along the lines of basic wage issues."
O'Dea denied saying that "General Ship Service was not going to do
any more painting on the waterfront." We credit O'Dea's testimony.
According to the testimony of J. G. Kircher, business representative
of Local 2, one of the meetings which took place after the picketing
stopped, was held at the ILWU building as an outgrowth of the
General Ship incident referred to above; at this meeting, O'Dea
"claimed that the painting of the tank was painters' work, and they
wanted to do that." According to Kircher, another of these meetings
was held at the offices of Local 961 "to see whether or not it would be
possible for the two organizations to arrive at something that would.
outline jurisdiction, and draw up a line of demarcation" . . . at which
O'Dea proposed amalgamation of the two unions. O'Dea credibly
testified that, at the ILWU building meeting, he complained that
"one union is doing the same type of work at a lower rate of wages"
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that he stated that "eve would have no grievance with anyone in
particular if they would bring their wage scale up to ours" . . . and
that he "didn't care who got the work , as long as the prevailing scale of
wages was being paid"; that he did not demand that the work be
assigned to the AFL and there was "no discussion as to jurisdiction,
as to assignment of work. " He further credibly testified that, at the
meeting at the offices of Local 961 , Local 2 raised the question of
jurisdiction, but that he stated that the matter did not involve a "j uris-
dictional dispute, as far as we were concerned, we were just interested
in the wage issue, " and that he proposed amalgamation.
On April 19, 1949, Local 961 dispatched the following letter to
Local 2:
At a meeting called April 19, 1949, at 10: 00 a. in., attended
by Business agent and representatives of CIO Local #2 Ship
Scalers and Business Agent and representatives of Local Union
961, A. F. of L. to discuss jurisdiction of painting on the water
front, has resulted in a recommendation by the CIO group that
they promise not to expand their present jurisdiction of painting
now being done by the CIO.
The offer was rejected by the Committee of 961 on the premise
that the original jurisdiction of all painting and preparatory
work thereto belongs to Local Union 961, A. F. of L.
The delegates of Local Union 961 then offered to amalgamate
the two Unions-that is to blanket membership of Local Union 2
CIO into 961, setting up classification as to skill and ability for
certain phases of paint and preparatory work.
In view of the 28 cent differential in wage scale, we believe
this move would create harmony and increase wage scale for all
painting on the ships coming into the port of San Francisco.
The Business Agent of Local Union 2, CIO, agreed to submit
the offer of Local Union 961, A. F. of L. to his membership for
their consideration.
Local 2 rejected the amalgamation proposal.
b. The contentions of the parties,
Local 961 mainly contends : (1) that the Board may not determine
a dispute in a proceeding under Section 10 (k) without first making a
finding that an unfair labor practice within the meaning of Section
8 (b) (4) (D) has been committed, and that the evidence here does
not establish such an unfair labor practice; and (2) that the dispute
which brought about the picketing did not involve the assignment of
the painting work to members of Local 961.
SHIP SCALING CONTRACTORS ASSOCIATION 97
The Association contends in substance that Local 961 picketed in
this case to force or require members of the Association to assign the
painting work to members of Local 961.
c. As to the first contention of Local 961
As indicated above, Local 961 contends that the Board has no power
to determine a dispute within the meaning of Section 10 (k) of the
Act, unless it makes a finding in this proceeding that an unfair labor
practice, within the meaning of Section 8 (b) (4) (D), has been
committed. We find no merit in this contention. All that is required
to invoke the Board's jurisdiction to hear and determine a dispute
within the meaning of Section 10 (k) is the filing of a charge alleging
a violation of Section 8 (b) (4) (D), and an investigation, pursuant
to the Board's Rules and Regulations, which satisfies the Board's Re-
gional Director that there is reasonable cause to believe that Section
8 (b) (4) (D) has been violated.'
d. As to the nature of the dispute and the applicability of the statute
The Board's power to determine a dispute under Section 10 (k) is
limited by the terms of Section 8 (b) (4) (D) to cases in which the
dispute is over the assignment of work. We believe that the facts here
do not present a dispute over the assignment of work.
Members of the Association employed as painters, members of Local
2 at a rate of pay which undercut the wage scale for the same type of
work established by Local 961 with other employers in the area. Re-
sponding to the pressure of complaints from contractors employing
members of Local 961 who had to compete with members of the Asso-
ciation, Local 961 decided to resort to picketing as a means of pub-
licizing the existence of the wage differential and to exert pressure
upon the offending contractors to adjust their wage scales upward
to meet the prevailing rate established by Local 961. Local 961
posted pickets at the piers on February 23 and 24 solely to effectuate
this policy. This is shown (1) by the pamphlets distributed by the
pickets which described the controversy as a dispute "because of a
wage differential" and which did not suggest that any work be.assigned
to members of Local 961 rather than any other group; (2) by the
absence of any demand upon any employer that he assign work to
members of Local 961; and (3) by O'Dea's statements in the course of
negotiations for settlement of the dispute that he "didn't care who
got the work, as long as the prevailing scale of wages was being
4 This is in accord with our holding in Moore Drydock Company, 81 NLRB 1108.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid. . . ." The April 19 letter, set forth above, when viewed in
light of the considerations just stated, does not persuade us that the
dispute which arose in February 1949 was over assignment of work.
Upon the basis of the foregoing, we conclude that the dispute in this
case is one over differing wage scales between the AFL and CIO
unions, and not one over the assignment of work.
As this controversy is not a dispute within the meaning of Section
10 (k), we shall quash the notice of hearing issued in this proceeding.
ORDER
On the basis of the foregoing findings of fact and conclusions of
law, and on the entire record in this case, the Board hereby orders
that the notice of hearing heretofore issued in this proceeding be, and
it hereby is, quashed.