Agwilines, Inc. v. National Labor Relations Board

Decision Date22 December 1936
Docket NumberNo. 8171.,8171.
Citation87 F.2d 146
CourtU.S. Court of Appeals — Fifth Circuit


Howard P. Macfarlane, of Tampa, Fla., for petitioner.

Charles Fahy, Gen. Counsel, National Labor Relations Board, and Robert B. Watts, Associate Gen. Counsel, National Labor Relations Board, both of Washington, D. C., for respondent.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

Petitioner, through its operating division, the Clyde Mallory Lines, is engaged, coastwise, in the interstate transportation of freight and passengers, by steamship, to and from ports on the Atlantic and Gulf Coasts and Cuba, with agencies in some twenty-five cities of the United States. On April 24, 1936, pursuant to charges filed with him by the International Longshoremen's Association, Local No. 1402, the Regional Director for the Fifteenth Region, instituted proceedings against petitioner before the National Labor Relations Board. The complaint alleged that petitioner had engaged and was engaging in unfair labor practices affecting commerce, within the meaning of section 8, subds. (1-3) and (5), and section 2, subds. (6) and (7), of the National Labor Relations Act (29 U.S.C.A. § 158, subds. (1-3, 5), and § 152, subds. (6, 7).

Boiled down, the charges came to two. One was that on various dates between December 1, 1935, and February 24, 1936, petitioner had discharged seven named employees, the president and vice president, the secretary and treasurer, and three others who had been active in the Local, on account of their affiliation with it, and has since that time refused to reinstate them in their former positions: The other was that on or about March 26, 1936, petitioner did refuse and has at all times since refused to bargain collectively with the Local concerning the wages, hours, and working conditions of its longshoremen.

In May there was a hearing before a trial examiner, followed by briefs and arguments before the Board on the record as then made. On July 3, 1936, the Board, of the opinion that the charges had been sustained, stated its findings and issued and served on respondent its cease and desist order.1

The respondent has applied to this court under subdivision (f), section 10 of the act (29 U.S.C.A. § 160(f), by written petition, praying that the order of the Board be set aside. The Board has answered the petition to oppose the setting aside or modification of the order, and to pray that it be enforced as made. The matter then stands before us on the record as originally made, for hearing and determination as to whether the order of the Board shall be enforced as written, or set aside, or shall be modified and, as modified, enforced. Attacking it upon constitutional grounds, petitioner urges that the statute, upon the authority of which the order was based, is invalid, (a) because without any real or due relation to the commerce power upon which it purports to rest, and (b) because in undertaking to regulate petitioner's relations with its employees by compelling it to bargain collectively, and by preventing it from discharging its employees for union activities, it deprives petitioner of its property in violation of the due process clause of the Fifth Amendment. It attacks the order itself as without evidence to support it in respect to each and all of its requirements. It attacks it too, in respect of the provisions for reinstatement with back pay, as violative as to it, of the Seventh Amendment, because denying it a trial by jury, and of the Fifth Amendment, because depriving it of its property without due process of law.

With all deference to petitioner's insistence, supported by its thorough and workmanlike brief, that we treat as open and consider as res nova the constitutional questions it raises as to the authority of Congress, and the jurisdiction of the Board, over labor relations and disputes, between persons engaged in, and whose activities are a part of, interstate commerce, we must decline to do so. These questions were settled generally in favor of authority such as exerted here by Congress and the Board, by the decisions of this court and the Supreme Court in T. & N. O. R. R. v. Brotherhood of Railway Clerks (C.C.A.) 33 F.(2d) 13; Id., 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. They have been reaffirmed in this and other Circuit Courts of Appeal as to the very act in question. We have indeed held that the Board may not, by a finding that the relation of employer and employee as such existing between persons who in their relations with each other are not engaged in interstate commerce, will affect that commerce, confer upon itself jurisdiction to take cognizance of such relations. National Labor Relations Board v. Jones & Laughlin Steel Corp. (C.C.A.) 83 F.(2d) 998; Other circuit courts have made the same holding. National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 85 F.(2d) 1 (C.C.A. 2); Fruehauf Trailer Co. v. National Labor Relations Board, 85 F.(2d) 391 (C.C.A. 6). On the other hand, we have held, as other Circuit Courts of Appeal have, that where employers and employees are actually engaged in interstate commerce, the Board has jurisdiction over complaints charging unfair labor practices, in connection with their relations. Bradley Lbr. Co. v. National Labor Relations Board (C.C.A.) 84 F.(2d) 97; National Labor Relations Board v. National New York Packing & Shipping Co., 86 F.(2d) 98 (C.C.A. 2); National Labor Relations Board v. Associated Press (C.C.A.) 85 F. (2d) 56; National Labor Relations Board v. Washington, Virginia & Maryland Coach Co., 85 F.(2d) 990 (C.C.A.4); cf. Virginia Railway Co. v. System Federation, No. 40 (C.C.A.) 84 F.(2d) 641.

Petitioner is mistaken in saying that what we said in Bradley Lbr. Co. on this point was obiter, and not necessary to the decision of that case. We were called upon to determine whether the act was incapable of constitutional application and therefore absolutely without force and effect, or had constitutional force. We determined deliberately and definitely that within the rule of the Brotherhood Case the act had a distinct field for constitutional application, the Board a distinct constitutional function. The Courts of Appeals for the Second and Fourth Circuits in the cases cited above, upon orders in substance identical with that at bar, have in reasoned opinions taken the same view. It would be a threshing of old straw for us to write further on these points.

Here it is admitted that petitioner and the employees affected by the order are engaged generally, in fact almost exclusively, in interstate commerce, and that the labor relations with which the Board has undertaken to deal are relations having to do with actual interstate commerce, indeed, with transportation in such commerce, the loading and unloading of ships moving interstate. The matter therefore comes before us upon an admitted state of facts, which clearly gives the Board jurisdiction, and brings the record, on which it acted, before us for examination, to determine under the statute, whether, and only whether, the findings of unfair labor practices the Board has made are supported by the evidence.

Before passing to an examination of those findings and of the record which is tendered in their support, we shall briefly consider and dispose of petitioner's constitutional points against the Board's order. We shall do this briefly, because as we have seen, every point it raises except one, that the statute authorizing and the order requiring reinstatement with back pay deprives petitioner of its rights to trial by jury in violation of the Seventh, and takes its property without due process in violation of the Fifth, has been gone into in reasoned discussions and in terms decided against it, and that one has been three times though without discussion of the point, also decided against it. The Second Circuit has twice, the Fourth Circuit once, in the cases cited above, affirmed orders for reinstatement with back pay identical with the one at bar.

In support of its claim that its constitutional rights are violated, petitioner contends that in its nature the claim, the statute in question gives to the injured employee upon his unfair discharge, is a legal action for damages, an action triable at common law, and not otherwise, and that therefore an award for damages against it may not be made administratively, but only upon and pursuant to a jury trial.

A short and simple answer to this contention is found in the fact that as between employer and employee the statute confers no right of action triable by a jury or otherwise. No provision in it authorizes an employee to make claim. The act does not purport to confer, it does not confer, private rights. It is only to rights and remedies as they were generally known and enforced at common law by jury trial that the amendment applies. Kohl v. United States, 91 U.S. 376, 23 L.Ed. 449; Crowell v. Benson, 283 U.S. 22, 51 S.Ct. 353, 75 L.Ed. 1430; Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150; Shields v. Thomas, 18 How. 253, 15 L.Ed. 368. The prohibitions against interference by employers with self-organization of employees were not only unknown, they were obnoxious to the common law. Pennsylvania R. R. System & Allied Lines Federation v. Pennsylvania R. R. Co., 267 U.S. 203, 213, 45 S.Ct. 307, 69 L.Ed. 574. The procedure the statute outlines is not designed to award, the orders it authorizes do not award, damages as such. The proceeding is not, it cannot be made, a private one to enforce a private right. It is a public procedure, looking only to public ends. The statute has in mind the maintenance and furthering of industrial amity, and therefore peace, the prevention of industrial war. Viewed as administrative procedure, the proceedings and orders in question present no constitutional...

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