Peninsular & Occidental SS Co. v. National Labor R. Bd.

• Decision Date: 29 July 1938
• Docket Number: No. 8781.,8781.
• Citation: 98 F.2d 411
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: PENINSULAR & OCCIDENTAL S. S. CO. v. NATIONAL LABOR RELATIONS BOARD (INTERNATIONAL SEAMEN'S UNION, Intervener).

98 F.2d 411 (1938)

PENINSULAR & OCCIDENTAL S. S. CO. v. NATIONAL LABOR RELATIONS BOARD (INTERNATIONAL SEAMEN'S UNION, Intervener).

No. 8781.

Circuit Court of Appeals, Fifth Circuit.

July 29, 1938.

Scott M. Loftin and Harold B. Wahl, both of Jacksonville, Fla., T. Paine Kelly, of Tampa, Fla., and Jno. P. Stokes, of Miami, Fla., for petitioner.

Charles Fahy, Gen. Counsel, National Labor Relations Board, Robert B. Watts, Associate Gen. Counsel, National Labor Relations Board, and Malcolm F. Halliday, all of Washington, D. C., for National Labor Relations Board.

Charlton Ogburn, of New York City, for intervener.

Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.

FOSTER, Circuit Judge.

Peninsular & Occidental Steamship Company, hereafter referred to as the company, brought this proceeding to vacate an order of the National Labor Relations Board, hereafter referred to as the Board, entered March 15, 1938, upon charges of unfair labor practices affecting commerce, filed by the National Maritime Union of America. The Board answered, praying for enforcement of the order. International Seamen's Union intervened before the Board and in this court, on the side of the company.

The Board found that certain named members of the crews of the steamships Florida and Cuba were discharged for the reason that they had joined and assisted the National Maritime Union, which was an unfair labor practice in violation of Section 8(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(1). The decision rests solely on this finding. The Board entered the usual order to cease and desist and post notices; and ordered the company to offer reemployment to some 145 members of said crews, without prejudice to their seniority or other rights and privileges, discharging if necessary those who had been hired to replace them, and to reimburse the discharged members of said crews for losses of pay and the reasonable value of maintenance on ship board.

It is unnecessary to discuss the many technical points raised by the company as the case may be more satisfactorily considered on the merits. It presents unusual features in that it arises from a fight between labor unions of which the employer is the victim. It is not a case in which there had been a strike and the employer had declined to re-employ some of the strikers; nor one in which the employer had assisted in organizing a company union. Extensive citation of authorities dealing with such cases would be superfluous.

It is settled that the Act, 29 U.S.C.A. § 151 et seq., is constitutional. Undoubtedly the Board had jurisdiction to receive and consider the complaint. In exercising its jurisdiction the Board was required to decide the case before it on all the evidence. 29 U.S.C.A. § 160(c). If it has done so its findings, if supported by relevant evidence of probative force, are conclusive.

The material facts are as follows. The company owns the steamships Florida and Cuba which operate on fixed schedules, making two or three trips a week, from Miami and Port Tampa, Florida, to Havana, Cuba, and return, carrying freight, express, passengers and the mail. All the members of their crews signed the usual shipping articles required by the navigation laws. On June 4, 1937, every member of the crews of the vessels, from the captains down, were members of labor unions, affiliated with the American Federation of Labor, with which unions the company had unexpired contracts fixing hours, wages and working conditions. These contracts were not outright closed shop agreements but they provided that the union had the right by preference to fill vacancies in the crew from its members, if competent men could be supplied. At the time these contracts were made the National Maritime Union, affiliated with the Committee for Industrial Organization, had not been organized.

On June 4, 1937, while the Florida was at dock in Miami, Marcus Elliott, a delegate of the National Maritime Union, requested permission to go on board the ship. Permission was denied by the master and local superintendent but in an hour or so was granted by superior officers of the company, when the request was brought to their attention, and he went on board and talked to the men. The members of the crew in the stewards' department and the unlicensed members of the deck and engine room crews were then members of the International Seamen's Union. In the afternoon, shortly before sailing time, certain members of the crew demanded, through Elliott that the company recognize the National Maritime Union and that Elliott be permitted to transfer the union books of the crew from the International Seamen's Union to the National Maritime Union before the ship sailed. This was denied on the ground that the company had a preferential contract with the International Seamen's Union. However, Elliott was offered a pass to go on the voyage and change the books en route but declined. There was no complaint as to hours, wages or working conditions. The company requested the crew to take a ballot to determine which union was in the majority. This was refused. The members of the crew of the Florida who desired to change their affiliation to the National Maritime Union refused to do any work, went on a sit down strike, took possession of the ship, refused to let the electrical equipment furnishing light or the pumps supplying the sanitary arrangements of the ship be used and refused to permit any food to be served to anyone but themselves. The ship was prevented from sailing and the passengers had to be sent ashore and housed at the expense of the company. This resulted in suits for damages for delay. News of this strike was communicated to the crew of the Cuba, at Port Tampa. Practically all the unlicensed members of the deck and engine rooms crews and of the stewards' department on the Cuba decided to transfer their membership from the International Seamen's Union and also went on a sit down strike for the recognition of the National Maritime Union. The company wired the Board asking it to designate the bargaining agency for the crews. The Board declined, referring the request to the Department of Labor. The strike was settled through the intervention of a conciliator of the Department of Labor, the company agreeing to not discriminate against the strikers. The ships resumed their regular schedules. However, the dispute between the rival unions was not permanently settled and friction continued on the ships between their members.

About June 19, 1937, the members of the crew of the Cuba who still adhered to the American Federation of Labor unions refused to sail with the members who had joined The National Maritime Union and those in the engine room crew went on a sit down strike. The ships were then temporarily laid up by the company and the entire crews of both vessels were discharged. The International Seamen's Union demanded the right to supply crews for the vessels under their preferential contract and were permitted to do so. The ships again resumed their regular schedules and there was no further trouble. So far the facts are undisputed.

There was also evidence by members of the crew tending to prove certain remarks of the officers of the ships derogatory to the National Maritime Union and intended to induce them to abandon that union and rejoin the International Seamen's Union, with threats as to certain men that if they did not do so they would lose their jobs. Practically all the officers of the ships denied the statements attributed to them. The officers of the company denied having suggested or approved these actions of the officers of the ships. There was no evidence at all to show that the officers of the company, who alone had authority to discharge the crews, had participated in or ratified said actions of the ships' officers. Further, there was evidence tending to show that members of the crew contemplated further sit down strikes and sabotage. There was no evidence as to what members of the crew made these threats but the evidence was not rebutted.

The Board concluded it was immaterial that the crews had signed shipping articles, on the ground that the company had not made it a practice to terminate the employment of the crew at the end of each trip. Reliance is had on the case of Black Diamond S. S. Corp. v. National Labor Relations Bd., 2 Cir., 94 F.2d 875. We express no opinion as to that...