National Union of Marine Cooks and Stewards

In the Matter of NATIONAL UNION OF MARINE COOKS AND STEWARDS, AND PACIFIC COAST FIREMEN, OILERS, WATERTENDERS & WIPERS ASSOCIATION and IRWIN-LYONS LUMBER COMPANY Case Nos. 36-CD-2 and 36-CD-3.-Decided April 8, 1949 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF THE CASE This proceeding arises under Section 10 (k) of the Act, as amended by Labor Management Relations Act, 1947, which pro- vides 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 August 31, 1948, Irwin-Lyons Lumber Company, herein called the Company, filed with the Regional Director for the Nineteenth Region of the Board charges 1 alleging that National Union of Marine Cooks and Stewards, a labor organization affiliated with the Congress of Industrial Organizations, herein called Cooks, and Pacific Coast Firemen, Oilers, Watertenders and Wipers Association, an unaffil- iated labor organization, herein called Firemen, had violated Section 8 (b) (4) (D) 2 of the amended Act. It was alleged that they had 1 The charge filed in Case No 38-CD-2 named National Union of Marine Cooks and Stewards as Respondent and the charge filed in Case No 36-CD-3 named Pacific Coast Firemen, Oilers , Watertenders & Wipers Association as Respondent. On October 15, 1948, an order was made consolidating the two cases. 2 The relevant portions of Section 8 of the Act are as follows : (b) It shall be an unfair labor practice for a labor organization or its agents- ( • s s r r s (4) to engage in, or to induce or encourage the employees of any employer to engage in , a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport , or otherwise handle or work on any goods , articles, materials, or commodities or to perform any services , where an object thereof is: . (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade craft , or class, unless such employer is failing to conform to any order or certification of the Board determining the bargaining representative for employees performing such work : .. . 82 N. L. R. B., No. 107. 916 NATIONAL UNION OF MARINE COOKS AND STEWARDS 917 engaged in activities proscribed by that section, with the object of forcing and requiring the Company to assign particular work to their members rather than to employees of the Company who were mem- bers of the Sailors Union of the Pacific, a labor organization affili- ated with the American Federation of Labor, herein called S. U. P. Pursuant to Sections 203.74 and 203.75 of the Board's Rules and Regu- lations, Series 5, as amended, the Regional Director investigated the charges and provided for an appropriate hearing, upon due notice to all the parties. Thereafter, a hearing was held before a hearing offi- cer of the Board from November 16, through November 22, 1948. The S. U. P. was permitted to intervene in the proceeding. At the hearing, all parties appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. The business of the company Irwin-Lyons Lumber Company is an Oregon corporation with its principal places of business at Coos Bay and North Bend, Oregon. It is engaged in logging and sawmill operations and also operates the motor vessel Rolando. For the period from January 1, 1948, to July 1, 1948, it purchased materials, tools, supplies, and equipment of the approximate value of $300,000.00, substantially all of which origi- nated outside the State of Oregon. During the same period, it pro- duced approximately 63,000,000 board feet of lumber and lumber products, of which about 95 percent was shipped to points outside the State of Oregon. There is no contention that the Company's opera- tions do not affect commerce within the meaning of the Act. We find that the Company is engaged in commerce within the mean- ing of the Act. 2. The dispute a. The facts In May 1948, the Company purchased a landing ship which it con- verted into a combination lumber and oil carrier, and renamed it the Rolando. In August 1948, the vessel was ready to operate, carrying lumber southbound and returning northbound with a cargo of oil. 838914-50-vol. 82-59 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the conversion work was going on, the Company was con- tacted by representatives of the Cooks, the Firemen, and the S. U. P., with respect to manning of the vessel. During the course of these dis- cussions, the president of the Company told the representatives of each union that recruiting would be on an "open market" basis, to be announced by advertisement in a local newspaper. Thereafter, on August 10, 11, and 12, 1948, an advertisement appeared in the Coos Bay Times calling for "unlicensed personnel for ships work." The man- ning scale had been fixed by the United States Coast Guard at 10 unlicensed men, consisting of 4 in the deck department, 3 in the stew- ard's department, and 3 in the engine room department. Hiring was done by the newly retained Master of the vessel. Of approximately 17 applicants for employment, he hired the first 10 who were qualified; 3 were residents of the Coos Bay area and 7 came from Portland, Ore- gon, and San Francisco, California. All were signed on as able-bodied seamen, except 1 who had cook's papers and the 3 oilers who presented papers qualifying them for the engine department. There is no con- tention that the Company discriminated against any of the applicants on the basis of union membership. Immediately upon the completion of the recruiting, representatives of the S. U. P. boarded the Rolando for the purpose of signing up the members of the crew. The 10 crew members signed pledge cards, des- ignating the S. U. P. as their collective bargaining representative. The vessel sailed from Coos Bay on August 22, 1948, and arrived at San Francisco on August 23, 1948. On the same day, shortly after the vessel arrived at San Francisco, representatives of the S. U. P. and the Employer met and executed an agreement covering all the unlicensed personnel.3 On August 23, 1948, while the ship's cargo was being unloaded at San Francisco, representatives of the Cooks and the Firemen also got 3 This agreement , executed August 23 , 1948, expires September 30, 1949 It governs the wages , hours, and working conditions of the Employer 's unlicensed personnel. Among its provisions is one with respect to hiring which reads as follows Section 2 ( a) The Company agrees in the hiring of the employees in the classifica- tions covered by this agreement to prefer applicants who have previously been em- ployed on vessels operated by the Company , and the Union agrees that in furnishing seamen to Company through the Facilities of their employment office it will recognize such preference and furnish seamen with due regard thereto and to the competency and dependability of the employees furnished ; when seamen with prior experience are not available , the Union will, dispatching seamen, prefer graduates of the Andrew Furuseth Training School (b) When any person is rejected , the employer will furnish a statement in writing to the Union stating the reason for the rejection . If the Union feels that any rejection has been unjust and has worked a hardship on the person , the, Union shall without delay take the matter up with the Employer and attempt to secure an adjustment. (c) The employees may remain continuously in employment on the same vessels provided the Employer and the employees desire such employment to continue. NATIONAL UNION OF MARINE COOKS AND STEWARDS 919 in touch with the Company's president who was still in San Francisco, and demanded that members of their unions be given employment in the stewards' and engine room departments on the Rolando, in place of the employees who were already employed in these two departments who had signed up with the S. U. P. These demands were refused. Thereupon, the Cooks and the Firemen, apparently aided by other unions,4 instituted picketing at the dock where the vessel was unload- ing. When the Rolando returned on August 27, 1948, there were pickets at the Company's premises at Coos Bay, Oregon. During the evening of August 28, 1948, personnel employed at the Company's mill voted to respect the picket line, whereupon all mill operations ceased. A railroad crew within the plant declined to pass the picket line. Employees of the Coos River Boom Company, a public utility of the State of Oregon, about 13 miles east of the Company's mill site, discontinued the floating, sorting, and rafting of the Company's logs, when pickets of the Cooks and the Firemen appeared at the Boom Company's operations. The Company was obliged to halt operations at its mill, lumber yard, and logging camps. The Coos River Boom Company had to curtail its operations (except for maintenance work) for approximately 2 months. The Rolando has not sailed since about September 1, 1948. b. Contentions of the parties The Company contends that the Cooks and the Firemen, have vio- lated Section 8 (b) (4) (D) of the amended Act by engaging in activ- ities proscribed by that provision; that the evidence as to tradition and history in the industry adduced by the Respondents at the hearing did not support their claim to the work assignment, and, in any event, was neither relevant nor dispositive of the issue; that all of the Com- pany's employees in question were members of the S. U. P., which was recognized by the Company as their exclusive bargaining representa- tive under a valid and binding collective bargaining agreement; that the Respondents unlike the S. U. P., not only had no majority status but did not represent any of the employees; and that, therefore, these employees of the Company (members of the S. U. P) were entitled to perform the particular work tasks in issue. The S. U. P. agrees, in substance, with the Company's contentions, and urges that it is entitled to "a work certification" on the basis of the facts. It also asserts that the Board is unable to grant such "cer- tification" to the Cooks because the Cooks has not complied with the filing requirements of Section 9 of the Act, and that the Board could 'The other unions, however, are not named as respondents in the present charges; the only labor organizations named there are the Cooks and the Firemen. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not "certify" either the Cooks or the Firemen because awarding the work to either or both of those labor organizations would be tanta- mount to ordering the Company to violate Section 8 (a) (3) of the Act. The Respondents take the position that the Board, in a proceeding pursuant to Section 10 (k), must determine the "dispute" on the basis of tradition and history in the industry, departmental demarcation of skills, and governmmental requirements for employees in the stewards' and engine room departments ; and, on such basis, the Re- spondents assert that they are entitled to a determination by the Board in their favor. They further contend that although the provision for hiring 5 in the agreement between the Company and the S. U. P. did not, on its face, provide for a closed shop, it did in actual practice compel the Company to hire S. U. P. members exclusively; that the S. U. P. could not be awarded the work, for the reason, among others, that it admits no Negroes to membership, and that the filing require- ments in Section 9 (f), (g), and (h) have no application to proceed- ings under Section 10 (k). c. Applicability of the statute The Board has held in Matter of Moore Drydrock Company 6 and in Matter of Juneau Spruce Corporation,' that where a labor organiza- tion is charged with forcing or requiring an employer " to assign particular work to members of a particular labor organization" rather than to his employees who are members of another labor organization, such conduct comes within the precise words and purview of Section 8 (b) (4) (D), and that the Board, in the language of Section 10 (k), is "empowered and directed to hear and determine the dispute." On the record before us, it is clear that the "dispute" in this pro- ceeding involves efforts by the Respondents, the Cooks and the Fire- men, to compel the Company to assign work to members of those labor organizations in place of the Company's employees who are members of the S. U. P. We find, therefore, that under the language of the Statute the dispute in question is properly before us for determination. d. The merits of the dispute The Respondents, in support of their claim to the work in dispute, rely principally on tradition and history in the maritime industry on the Pacific Coast, demarcation of skills and varying governmental requirements in the three departments of the vessel, an alleged "dis- Set forth in footnote 3, above 81N L. R. B. 1108. 1 82 N. L. R. B. 650. NATIONAL UNION 'OF` WARM T 'OOKS ANf 8'rEWAii,DS P21 tribution of jurisdiction" among the three Unions in this proceeding, and upon a purported settlement in a proceeding before the United States Maritime Commission of the jurisdictional issue involved here. At the hearing, there was no testimony to support the allegation that "an agreement, either actual or tacit" had been made for the purpose of distributing jurisdiction as claimed by the Respondents. The Respondents did introduce evidence for the purpose of showing that a settlement of a controversy to which the Unions involved here were parties had been effected under the auspices of the United States Maritime Commission; and the Respondents thereupon assert that the terms of the alleged settlement contemplated an allocation of "juris- diction" among the Cooks, the Firemen, and the S. U. P. along the lines urged by the Respondents in the proceeding now before us. However, the record is inconclusive as to whether the proposed settlement was actually agreed upon or even acquiesced in by the S. U. P.8 Moreover, there was no showing that the terms of the proposed settlement had in fact, been performed. We are not satisfied, therefore, that there was an effective settlement of the issue now before us in the Maritime Commission proceeding.9 We turn next to the Respondents' contention that the work tasks in dispute should be assigned to the Cooks and Firemen, respectively, because of the tradition and history in the Pacific Coast maritime industry. The Respondents introduced testimony, through an officer of the Pacific American Shipowners Association, to the effect that the Association, which consists of companies engaged in coastwide trade, has negotiated and administered collective bargaining con- tracts for its members since 1935, and that since 1937 it has, on behalf of its members, bargained and executed contracts with the Cooks for employees of the stewards' department, with the Firemen for the unlicensed engine room department employees, and with the S. U. P. for the unlicensed deck department employees.10 It is conceded by the respondent unions that they do not represent and have never represented any of the Company's employees. The 9 The former official of the United States Maritime Commission who testified on behalf of the Respondents stated that Mr. Lundeberg ( the president of the S U. P.) "did not like to enter into such proposition," and that, insofar as this witness is concerned, Mr Lunde- berg had made no positile commitment with respect to such settlement. The Respondents did not offer any other testimony to establish the alleged settlement agreement 9 As the alleged agreement was not proved, and as there was no effective settlement of the issue in the Maritime Commission proceeding , we are not called upon to, and do not decide whether a jurisdictional agreement or settlement constitutes a valid criterion or standard in a proceeding under Section 10 (K). 10 The original agreement signed by the Association in 1935 was with the International Seamen's Union, AFL, and covers all three departments . The Company is not and has not been a member of the Association . It does not appear that the members of the Association operate vessels like the Rolando ; their vessels are dry cargo vessels only Moreover, it is uncontroverted that the operation of the Rolando in 1948 was the Company's first maritime venture. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record shows that the unlicensed personnel in the three departments of the vessel were in fact members of the S. U. P. and that the S. U. P. has bargained for them since the Rolando was put in operation by the Company. Furthermore, there is no contention by the Respondents that they have any certification, Board order, or contractual rights with respect to the Company's employees. The Board has held in Matter of Juneau Spruce Corporation, supra that where a union with no bargaining or representative status makes demands on an employer for the assignment of work to the exclusion of the employer's own employees who are performing the work, the question of tradition or history in the industry cannot be a governing factor in a proceeding under Section 10 (k). It is this lack of bar- gaining or representative status on the part of the Respondents which we consider as decisive, under the Act as now written, rather than, as our concurring colleagues state, the fact that the S. U. P. represents the employees who have been engaged to do the work. We believe that, in this connection, the facts in the present case are not distin- guishable from those in the Juneau case, and for the reasons therein stated, find that tradition and history in the industry are no more relevant here. For the same reasons, we also reject the contention of the Respondents, without determining the sufficiency of the evidence thereon, that alleged differentiation in functions, skills or varying Government requirements appertaining to the respective departments of the vessel, constitutes a determinative factor in this proceeding. For the foregoing reasons, we find that the Respondents are not lawfully entitled to require the Company to assign the work in dispute to members of the Cooks and the Firemen rather than to employees of the Company who are members of the S. U. P:1 Determination of the dispute On the basis of the foregoing findings of fact, and on the entire record in this case, the Board makes the following determination of the dispute pursuant to Section 10 (k) of the amended Act: 1. National Union of Marine Cooks and Stewards is not, and has not been, lawfully entitled to force or require Irwin-Lyons Lumber Company, Coos Bay and North Bend, Oregon, to assign work in the stewards department of its motor vessel Rolando to members of that labor organization rather than to employees of the Company who have been, and are members of the Sailors Union of the Pacific. "As we are making no award of affirmative relief to the S. U. P., it is unnecessary at this time to pass on other contentions asserted by the Respondents , the purport of which is that the S. U. P. is not entitled to such affirmative relief. NATIONAL UNION OF MARINE COOKS AND STEWARDS 923 2. Pacific Coast Firemen, Oilers, Watertenders and Wipers Asso- ciation is not, and has not been, lawfully entitled to force or require Irwin-Lyons Lumber Company, Coos Bay and North Bend, Oregon, to assign work in the engine room department of its motor vessel Rolando to members of that organization rather than to employees of the Company who have been, and are members of the Sailors Union of the Pacific. 3. Within ten (10) days from the date of this Decision and De- termination of Dispute, each of the Respondents may notify, in writ- ing, the Regional Director for the Nineteenth Region for the National Labor Relations Board as to what steps the Respondents have taken to comply with the terms of said Decision and Determination of Dispute. MEMBER MURDOCK, concurring : I concur in this decision because I deem myself bound by the ma- jority's decisions in the Moore Drydock 12 and Juneau Spruce 13 cases. However, I am not satisfied that this case involves a true jurisdictional dispute,14 as it appears that the S. U. P. and the Respondent Unions are actually rival or dual organizations competing for the right to organize and represent seamen working in stewards' and engine de- partments, respectively. Moreover, assuming that this dispute is jurisdictional, I believe that the Board should decide it in the light of the evidence, referred to in Section 2.d. of the majority opinion, as to tradition, custom in this area, and possible inter-union agree- ments or settlements. The majority discusses this evidence, then dis- cards it as irrelevant, and treats as decisive the fact that the S. U. P. represents the employees who have been engaged to perform the dis- puted work. As I pointed out in my dissenting opinion in the Juneau Spruce case, I believe that this approach confuses representation issues with jurisdictional issues, and ignores the type of evidence that should be treated as primarily relevant to the solution of a jurisdictional dispute 16 v Cited in footnote 6, supra. " Cited in footnote 7, supra. See my dissenting opinion in the Moore Drydock case. 1$ Member Houston also deems himself bound by the majority 's decisions in the Moore Drydock and Juneau Spruce cases , and concurs in the foregoing opinion to the extent that it deplores the rejection by the majority of evidence which would appear to be of primary importance in resolving any real jurisdictional dispute.