Harbor Boat Building Co.

National Labor Relations Board - Board Decisions

Mar 17, 1936

1 N.L.R.B. 349 (N.L.R.B. 1936)

In the Matter of HARBOR BOAT BUILDING COMPANY, A CORPORATION-
and SKIP CARPENTERS LOCAL UNION No. 1335 '
Case No. C-45.-Decided March 17, 1936
Boat Bnildimg and Repairing Industry-Unit Appropriate fo,-Collective Bar-
gaining: craft ; history of collective bargaining relations ; occupational dif-
ferences-Representatives: proof of choice: membership in union-Collective
Bargaining: employer's duty as affected by action of competitors ; refusal to
negotiate with representatives ; negotiation in good faith : counter proposals ;
meeting with representatives but with no intention of bargaining in good faith-
Strike: averted by filing of charge with Board.
Mr. Leonard Janofsky for the Board.
Hilda Droshnicop., of counsel to the Board.
DECISION
STATEMENT OF CASE
On October 18, 1935, Ship Carpenters Local Union No. 1335, here-
inafter referred to as the union, filed with the Regional Director for
the Twenty-first Region a charge that the Harbor Boat Building Co.
of Los Angeles, California, had engaged in unfair labor practices,
forbidden by the National Labor Relations Act, approved July 5,
1935, hereinafter referred to as the Act. On November 26, 1935, the
Board issued a complaint against the Harbor Boat Building Co.,
hereinafter referred to as respondent, the complaint being signed
by the Regional Director for the Twenty-first Region and alleging
that respondent had committed unfair labor practices affecting com-
merce within the meaning of Section 8, subdivisions (1) aRd (5)
and Section 2, subdivisions (6) and (7) of the Act. In respect to
the unfair labor practices the complaint alleged in substance :
1. That the ship-carpenters, caulkers and joiners in the Los Angeles
plant of respondent constitute a unit appropriate for purposes of
collective bargaining, within the meaning of Section 9 (b) of the
Act;
2. That on or about September 12, 1935, and thereafter, a ma-
jority of the employees inthis unit had designated the union as their
representative for-purposes' of, collective bargaining with respond-
ent, such designation having been made by vote of said employees
duly recorded in the minute book of the union and by appointing a
committee of union members to bargain with respondent; and that.
349
350 NATIONAL LABOR RELATIONS BOARD
by virtue of Section 9 (a) of the Act the union has since that time
been the exclusive representative of all employees in the unit for
purposes of collective bargaining;
3. That on and before September 30, 1935, the union requested
respondent, through its officers, agents and employees, to bargain
collectively with the union as the exclusive representative of all the
employees in the unit, but respondent refused and continued to
refuse to enter into any discussion with the union with respect to
rates of pay, wages, hours of employment and other conditions of
employment.
The complaint and accompanying notice of hearing were served
on respondent in accordance with Article V of National Labor Re-
lations Board Rules and Regulations-Series 1. Respondent filed
no answer, but on the day of the hearing respondent delivered to
the Regional Attorney for the National Labor Relations Board a
letter addressed by respondent to Towne Nylander, Regional Di-
rector for the Twenty-first Region, wherein respondent denied gen-
erally all the allegations of the complaint and asserted that the
business of respondent was outside the scope of the National Labor
Relations Act. The Trial Examiner ruled that this letter did not
constitute an answer within the meaning of Section 10, Article II,
of the Rules and Regulations.
The hearing was originally noticed for December 5, 1935, at 10
o'clock A. M., at the office of the National Labor Relations Board
in the Federal Building, Los Angeles, California. It was later post-
poned to December 18, 1935, at the-same, place, and respondent was
notified of said adjournment. By letter dated December 16, 1935,
respondent was notified that the hearing would be held in the Board
Room of the City Hall at San Pedro, California instead of in Los
Angeles.
The hearing was conducted on December 18, 1935, at the City Hall
at San Pedro, California, by Rollin L. McNitt, the duly designated
Trial Examiner. The Trial Examiner inquired at the opening of
the hearing and from time to time during the hearing as to whether
there was anyone representing respondent present at the hearing,
either officially or as an observer. There was no response to any
of these inquiries. The Regional Attorney, on behalf of the Board,
offered evidence to sustain the allegations of the complaint.
Upon the record thus made, the stenographic report of the hearing
and all evidence, including oral testimony, documentary and other
evidence offered and received at the hearing, the Trial Examiner,
on December 30, 1935, filed an intermediate report, finding in sub-
stance that respondent is engaged in building and repairing wooden
boats used in transportation and commerce upon the high seas, con-
DECISIONS AND ORDERS 351
stituting foreign commerce; that respondent had committed unfair
labor practices in violation of Section 8, subdivisions (1) and (5) of
the Act in refusing to bargain collectively with the duly designated
representatives of its employees; and that such unfair labor practices
constitute unfair labor practices affecting commerce within the mean-
ing of Section 2, subdivisions (6) and (7) of the Act. The Trial
Examiner recommended that respondent cease and desist from
refusing to bargain collectively with the representatives of its em-
ployees in the woodworking department of its Harbor plant.
We find that the evidence supports the Trial Examiner's rulings,
findings and conclusions. Nothing in respondent's letter of excep-
tions to the intermediate report, which is discussed below, requires
any material alteration of such findings and conclusions.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE HARBOR BOAT BUILDING CO.
The Harbor Boat Building Co. is a California corporation engaged
in repairing and building fishing and other wooden boats. Respond-
ent's plant is in Los Angeles Harbor, County of Los Angeles, and is
one of the largest of several companies in Los Angeles Harbor silni-
larly engaged. The annual -business of respondent is estimated at
about $300,000.
Respondent employs on a yearly average about thirty carpenters,
caulkers and joiners when a substantial repair job is under way; from
time to time as many as one hundred men are so engaged; at all times
not less than five carpenters, caulkers and joiners are so employed.
During the period in question there were approximately twenty car-
penters, caulkers and joiners in the woodworking departments of the
company. The monthly payroll of respondent ranged from $700.00
to $1600.00 per month in 1935.
Respondent specializes in fishing boats and handles a substantial
portion of the repairing and building of fishing and other wooden
boats operating out of Los Angeles Harbor. Large fishing boats
ordinarily are repaired two and three times a year; even in the
absence of other damage they, come in twice a year for paint. 9017,
of respondent's business in the years 1923-1935 consisted of repairing
and only 10% building.' 50% of respondent's business is on the
larger boats.
The boats repaired and built by respondent range in size from 40
feet to 125 feet with a cruising area as far south as the equator. All
In 1935 respondent constructed four fishing boats, which brought its average of
eenetraction up to 20% for that year. This however was unusual.
352 NATIONAL LABOR RELATIONS BOARD
the fishing boats operating out of Los Angeles Harbor, including
the boats repaired and built by respondent, cruise beyond the three
mile limit in the ordinary course of their operations and frequently
make their actual catches of fish outside the three-mile limit. 50 %
of these boats occasionally go into waters south of the Mexican line,
some as far as the Galapagos Islands. The smaller boats repaired
and built by respondent at its plant also have an extensive range;
more than half the fish caught on said smaller boats are also caught
outside the three-mile limit. In the course of its business, respondent
sometimes also repairs fishing boats from Seattle and Tacoma,
Washington and San Diego, California.
The aforesaid repairing and building operations of respondent
are performed upon instrumentalities which engage in traffic and
commerce among the several states, and between the several states
and the high seas and foreign countries.
II. APPROPRIATE UNIT AND THE UNION AS REPRESENTATIVE OF THE
MAJORITY IN SUCH UNIT
Ship Carpenters Union No. 1335 is a labor organization Vvhich'*as
formed in July, 1934 for the purpose of creating an agency for col-
lgctive bargaining between the boat building companies in the Harbor
.and the employees in their woodworking departments, which include
carpenters, caulkers and joiners. The union is a local of the United
Brotherhood of Carpenters and Joiners of America, which is affiliated
with the American Federation of Labor. In September, 1935, the
total number of members was 117.
Respondent employs painters and machinists in addition to those
employed in the woodworking department. On September 12, 1935
there were 20 employees in respondent's woodworking department.
All of the men in the woodworking department of respondent were
members of the union on that date.
Painters normally comprise about 5% and machinists about 35%
of the men in the plant. These craftsmen are not eligible for mem-
bership in Ship Carpenters Union No. 1335 because their crafts differ
from those practiced by the employees in the woodworking depart-
ment. The machinists employed by respondent are organized and
are represented by their own organization within the American
Federation of Labor.
The nature of the woodworkers' employment is such that they may
work intermittently for all the boat companies in the Harbor during
any' given season. The separate craft organization of the ship, car-
penters, caulkers and joiners is based upon a particular skill and is
traditional, dating back to a period long preceding the formation of
the American Federation of Labor. There is considerable divergence
DECISIONS AND ORDERS 353
in the basic rate of pay between the carpenters, caulkers and joiners
on the one hand, and the machinists on the other, generally through-
out the United States, the base rate for machinists in private industry
being, 75 or 80 cents an hour, while the prevailing rate for woodwork-
ers is substantially higher. This was also true in the Harbor area
until approximately June, 1935, when the boat-building companies
succeeded in cutting down the rates of the woodworkers.
We find that the employees in the woodworking department of re-
spondent's plant constitute an appropriate unit for the purposes of
collective bargaining.
The allegation of the complaint that on or about September 12,
1935, and at all times thereafter, a majority of the employees in the
woodworking department of respondent had designated the union
as their representative for purposes of collective bargaining with re-
spondent was not denied by respondent in any of its dealings with
the union. Respondent filed no answer to the complaint within the
meaning of the Rules and Regulations, and in the informal letter
delivered to the Regional Attorney this allegation was not specifically
controverted; only a general denial of the allegations of the complaint
was put in, the jurisdiction of the Board alone being explicitly chal-
lenged. At the hearing it was shown by the uncontroverted testi-
mony of Hart, Secretary of the District Council of Carpenters of Los
Angeles County, that about September 12, 1935 all the men in the
woodworking department of respondent were members of the union
and that the committee which attempted to negotiate with respondent
was designated on the same clay in the union hall at a regular meeting
when a majoriy of respondent's employees were present in the hall.
On no occasion did Rados, the General Manager of respondent, or
any other agent of respondent, base his refusal to bargain with the
union committee on the ground that it did not represent the men.
The Trial Examiner found that the union had been since on or
about September 12, 1935 the duly designated representative of the
majority of the men in this unit of respondent's plant. Nine days
after the issuance of the Trial Examiner's report respondent in a let-
ter of exceptions stated for the first time that the union did not and
never had represented a majority of the men in the woodworking de-
partment of its plant. A bare denial of a state of fact raised at this
belated point in the proceedings, unmentioned in any answer to the
allegations in the complaint, unsupported by evidence introduced by
respondent or adduced by cross-examination of the union's witnesses,
when respondent had full opportunity to raise the issue on any or
all of these occasions, is insufficient to undermine the conviction car-
ried by the uncontradicted testimony of the union's witnesses.
The Board finds that the union, on or about September 12, 1935,
and at all times thereafter, was the duly designated representative of
354 NATIONAL LABOR RELATIONS BOARD
the majority of the men in the woodworking department of respon-
dent.
III. THE UNFAIR LABOR PRACTICES
In the early part of August, 1935 a committee was appointed by the
union to interview the various boat building companies in the Har-
bor with a view to negotiating a contract with them. A letter was
sent to the companies setting forth the wage scales voted by the
union, and asking them to fix a date for a meeting. Respondent
failed to answer the letter. On September 12, 1935 the union desig-
nated another bargaining committee. Respondent was again noti-
fied of a proposed meeting but it replied on September 16, 1935
that since it "did not find any of the other yards able to attend the
meeting" because "one was on his vacation; several others advised
that unfair practices, etc. was satisfactory to them and did not see
any reason for a meeting; etc. . . . we do not care to take the lead on
a meeting of this sort involving the industry". On September 24,
1935, respondent once more was requested to meet with the repre-'
sentatives of the woodworkers in order to discuss hours and' wages
and working conditions. This letter was never answered. A sim-
ilar letter sent to respondent by the union on September 30, 1935,
requesting a meeting for the same purpose and stating that "Local
Union #1335 represents an overwhelming majority of the em-
ployees in your plant" also remained unanswered by respondent.
The union committee also waited upon the officers of respondent
in August, 1935 and again on September 12, 1935 but was unable to
see them on either occasion.
On October 9, 1935 a registered letter was sent to Rados notifying
him that a committee from the union would call upon him on October
11, 1935, for the purpose of bargaining collectively. The meeting
actually occurred on October 17, 1935, with Radios alone represent-
ing the respondent. The union committee proposed that respondent
agree to enter into negotiations relating to a contract which would
approximate the union scale. It was made clear that it was accep-
table to the union, if respondent was unwilling to agree to the union
rate immediately, that a program be worked out whereby a' lower rate
would be set for the present and payment of the union scale post-
poned until some later period. The questions raised by the union
involved rates of pay, hours, working conditions and recognition of
the union. Rados conversed with the committee but explicitly stated
that he would not consider becoming a party to a bargaining agree-
ment unless all the other boat companies in the Harbor joined in it.
He made no counter proposition when the committee stated the union
scale; he merely declared that he was paying all he could afford to
DECISIONS AND ORDERS 355
pay, and when pressed as to what that was, replied , "Well, I am pay-
ing them all they are worth ." The period for which any agreement
would operate was not discussed because negotiations did not reach
the state of discussion of particular terns.
It is clear that an employer cannot refuse to bargain collectively
on the ground that his competitors have not entered into negotiations
or made agreements with their employees . In any event, however, it
is obvious that irrr this case Rados' statement to the effect that he
would not consider entering into a contract with the union until all
the other companies in the Harbor were signed up was injected
into the discussion solely with a view to precluding the possibility
of effective negotiations , since there is evidence that he knew that
the committee had already called upon all the other large boat
builders in the vicinity and had received the same answer. The
record shows without contradiction that Rados and the other com-
panies had conferred on the question with each other prior to that
date and that Rados was fully apprised of their attitude on the
subject. Thus there is some evidence to the effect that about Sep-
tember 16, 1935, when the respondent declined to appear at a joint
meeting of all the boat shops in the Harbor to discuss terms with
the union , respondent and the other boat builders held a meeting
at the Rados Duck Ranch and agreed not to meet with the union.
Several incidents appearing in the record disclose a generally hos-
tile attitude on the part of respondent to the union . Thus Brown-
ing, a caulker who worked for respondent at the time of the nego-
tiations , and who was an active union man , testified that he had
worked for respondent for nine or ten years and had also been
intermittently employed by the other large boat building firms in the
Harbor. Late in September , 1935, Browning was heard by Rados
to say that a night job should be paid time and a half , which was
the union rate. Rados thereafter did not recall Browning as he
customarily did when there was work, and in answer to Browning's
inquiry as to the `r'eason , replied that it was because he had said
``time and a half" on that occasion . He added "you fellows tried
to tie me up ." Browning testified that Rados knew that he had
been one of the first organizers of the union. Late in September
Rados also failed to recall Twining, recording secretary of the union,
and McGinney, president of the union . In addition , when Twining
and Browning early in November applied at the Standard Dredging
Co., another ship building company in the Harbor , for jobs which
had previously been promised them, the foreman , who was a friend
off. Browning and Twining, said, "Why, you fellows are Bolshe-
viks . . . that is what Johnnie Rados, Al Larsen , Homer Evans and
356 NATIONAL LABOR RELATIONS BOARD
Craig came in and told me." (The latter men are owners of other
large boat building companies in the Harbor). Browning also testi-
fied that of the carpenters, caulkers and joiners working in the wood-
working department of respondent in September, only four or five
have been retained and that "the four men there right now are
different from what they used-to be towards organized labor."
We find that respondent refused to bargain collectively with the
representative of its employees, and that by such refusal respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE
We found above that the repairing and building operations of
respondent are performed upon instrumentalities which engage in
traffic and commerce among the several states and between the sev-
eral states and the high seas and foreign countries. The employees
in the woodworking department of respondent's plant are thus
engaged in operations which constitute a necessary and integral part
of such commerce; such repairing and building is essential to the
regular and effective functioning of such instrumentalities.
At the time of the filing of the charge in this case, the employees of
respondent contemplated calling a strike in order to assert their
rights. Hart, Secretary of the District Council, advised.against such
action and told them that he could take up their grievances with
the Regional Office of the National Labor Relations Board. He
pursued such a course and thus the strike was averted.
Several of the witnesses testified that the employees here involved
worked at different times for all the boat building and repairing
companies in the Harbor. In view of the large proportion of union
men in this trade in the Harbor the effect of a strike on the opera-
tions of these boat building companies, including respondent, is
obvious. Moreover it was testified by Woods that a strike called
by this local would involve every connected carpenters' local, thus
affecting construction of buildings, wharves, studios and ocean liners
including the men in all the lumber and material yards in the vicinity,
who number about 1,000 men in the Harbor district alone. The
longshoremen might also strike in sympathy, thus directly causing a
stoppage of interstate and foreign commerce. Evidence was adduced
to the effect that respondent's failure to bargain collectively through
the union might involve a walk-out of all the carpenters' unions, long-
shoremen, seamen on barges and tug boat unions, which might result
in 50,000 men leaving their work, thus creating an interruption of
all commerce to and from Los Angeles Harbor as well as dislocating
DECISIONS-AND ORDERS 357
industrial operations generally in Southern California. Such a
strike would practically paralyze shipping out of Los Angeles' Har-
bor and perhaps out of other ports on the Pacific Coast.
Interference with the activities of employees in forming or join-
ing labor organizations results in strikes and other forms of in-
dustrial unrest which in the ship-building industry have the effect
of impeding the servicing of instrumentalities of foreign and inter-
state commerce. In 1934 and in January to July, inclusive, 1935, such
interference by employers in the ship-building industry resulted in
strikes and lockouts involving 8,740 workers and 460,588 man-days
of idleness.
' The refusal of respondent to bargain collectively with the repre-
sentatives of the employees in its woodworking department burdens
and obstructs commerce and the free flow of commerce and tends to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
CONCLUSIONS OF LAW
Upon the basis of the foregoing the Board finds and concludes as
a matter of law :
1. Ship Carpenters, Caulkers and Joiners Local 1335 is a labor
organization, within the meaning of Section 2, subdivision (5) of
the Act.
2. The carpenters, caulkers and joiners in respondent's plant con-
stitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. By virtue of Section 9 (a) of the Act, Ship Carpenters, Caulkers
and Joiners Local 1335, having been duly designated on or about
September 12, 1935 by a majority of the employees in the unit'as their
representative for the purposes of collective bargaining, has been at
all times thereafter the exclusive representative of all the employees
in such unit.
4. By its refusal to bargain collectively with the duly designated
representative of its employees, respondent has engaged in and is
engaged in unfair labor practices within the meaning of Section 8,
subdivisions (1) and (5) of the Act.
5. Such unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2, subdivisions (6) and (7)
of the Act.
ORDER
On the basis of the findings of fact and conclusions of law, and
pursuant to Section 10, subdivision (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
358 NATIONAL LABOR RELATIONS BOARD
respondent, Harbor Boat Building Co., and its officers and agents,
shall :
1. Cease and desist from refusing to bargain collectively with the
Ship Carpenters, Caulkers and Joiners Local No. 1335 as the exclusive
representative of the carpenters, caulkers and joiners employed in
such capacity by respondent, in respect to rates of pay, wages, hours
of employment and other conditions of employment.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act: Upon request, bargain collectively
with the Ship Carpenters, Caulkers and Joiners Local No. 1335 as the
exclusive representative of the carpenters, caulkers and joiners em-
ployed in such capacity by respondent, in respect to rates of pay,
wages, hours of employment, and other conditions of employment.