Bethlehem Shipbuilding Corp. v. National LR Board, 3437

Citation114 F.2d 930
Decision Date08 October 1940
Docket Number3467.,No. 3437,3437
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)


Claude R. Branch, of Boston, Mass. (John L. Hall and Choate, Hall & Stewart, all of Boston, Mass., and Hoyt A. Moore, Bruce Bromley, Albert R. Connelly, and Cravath, de Gersdorff, Swaine & Wood, all of New York City, on the brief), for Bethlehem Shipbuilding Corporation, Ltd., and others.

Robert A. Zottoli, of Quincy, Mass., for General Body, etc.

H. Gardner Ingraham, Atty., N.L.R.B., of Washington, D. C., Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, Samuel Edes and Louis Libbin, Attys., National Labor Relations Board, all of Washington, D. C., for the Board.

Before MAGRUDER and MAHONEY, Circuit Judges, and McLELLAN, District Judge.

MAGRUDER, Circuit Judge.

Bethlehem Shipbuilding Corporation, Ltd., formerly a Delaware corporation, and Bethlehem Steel Company, a Pennsylvania corporation, petition under Section 10(f) of the National Labor Relations Act, 49 Stat. 455, 29 U.S.C.A. § 160(f), for review of an order of the National Labor Relations Board dated February 10, 1939.1 These two petitioners will hereinafter be referred to collectively as Bethlehem. Consolidated with this case is a petition by the General Body of Employees' Representatives under the Plan of Employees' Representation at the Fore River Yard of Bethlehem Steel Corporation, Shipbuilding Division, asking a review of the same order, partly on the ground that the Board was in error in sustaining the trial examiner in his denial of a motion of this petitioner, hereinafter referred to as the General Body, asking leave to intervene in the complaint case relating to Bethlehem's Fore River plant. At the time of the hearing before the Board the Bethlehem Shipbuilding Corporation and the Bethlehem Steel Company were wholly-owned subsidiaries of the Bethlehem Steel Corporation, a Delaware corporation. Thereafter, but before the Board issued its order, the Shipbuilding Corporation was merged into the Bethlehem Steel Company, which has continued to carry on the business formerly conducted by the Shipbuilding Corporation. The order of the Board is directed against "Bethlehem Shipbuilding Corporation, Limited, and its officers, agents, successors and assigns". In its answer to the petitions for review the Board asks that its order be enforced by decree of this court.

The unfair labor practices complained of are alleged to have occurred at Bethlehem's Fore River plant at Quincy, Massachusetts, and at its Boston plant, consisting of the Simpson Works and the Atlantic Works which are operated as a unit.

At its Fore River plant, Bethlehem is chiefly engaged in designing and building instrumentalities of commerce, vessels of various kinds, ranging from "small steam fishing trawlers to the largest American vessels afloat", but principally destroyers and cruisers for the United States Navy. In 1936, and again in 1937, the value of ships constructed there was in excess of $23,000,000. Between 1930 and 1937 there were constructed for the United States Navy four cruisers, seven destroyers, and one seagoing hopper dredge. Between 1930 and 1938, seven freight and passenger vessels, one ferry boat, four oil barges, and two oil tankers, also numerous fishing trawlers, were constructed for other customers. At the time of the hearing Bethlehem was building at the Fore River plant three cargo and passenger vessels for the Panama Canal, and two destroyers and one aircraft carrier for the United States Government. Bethlehem also manufactures and sells, on specific order, certain articles of marine equipment, such as turbines, boilers and miscellaneous machine parts. Raw materials in excess of $6,500,000 flow into the Fore River plant annually, over fifty per cent thereof being derived from points outside Massachusetts. Bethlehem operates the Fore River Railroad which connects with the New York, New Haven & Hartford Railroad, over which is hauled most of the raw materials purchased by the respondent for the Fore River plant.

At its Boston plant Bethlehem is engaged in repairing, reconditioning and reconverting ships of all kinds. During 1937 approximately 505 vessels were repaired. Of these, 31 were public vessels, 91 were fishing vessels, and 244 were cargo and passenger vessels, the greater number of which were engaged in coastwise, intercoastal and foreign commerce. Raw materials purchased in 1936 and 1937 exceeded one-half million dollars annually, a substantial portion of which came from outside Massachusetts.

In respect to its business at both the Fore River and the Boston plants, Bethlehem is clearly subject to the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Virginian Ry. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Newport News Shipbuilding & Dry Dock Co. v. National Labor Relations Board, 4 Cir., 101 F.2d 841, on certiorari, 308 U.S. 241, 60 S.Ct. 203, 84 L.Ed. 219; National Labor Relations Board v. Norfolk Shipbuilding & Drydock Corp., 4 Cir., 109 F.2d 128. All that was necessarily decided by this court in Myers v. Bethlehem Shipbuilding Corp., 1 Cir., 89 F.2d 1000, was that considering the doubt as to the Board's jurisdiction, on the record then before the court, the district court was not in error in temporarily restraining the holding of a Board hearing, pending final hearing on Bethlehem's application for an injunction. Since then, however, we have had the benefit of subsequent decisions emphasizing the broad extent of the Board's jurisdiction as conferred by Congress under the commerce power. Now the question of jurisdiction is presented to us, not on affidavits of Bethlehem in support of an application for an injunction, but after an administrative hearing in which there was a full development of the facts as to Bethlehem's business and its interstate implications, and a finding by the Board as follows:

"We find that the respondent is not only engaged in commerce to a substantial degree but is also engaged in the construction, repairing, and overhauling of instrumentalities of commerce. A stoppage of the respondent's operations would burden commerce by depriving commerce of its instrumentalities and by depriving its instrumentalities of the repairs necessary to their continued operation. We further find that the activities of the respondent set forth hereinafter, occurring in connection with the operations of the respondent described in this section, have a close, intimate and substantial relation to trade, traffic, transportation and commerce among the several States and between the several States and foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce."

We cannot say that "such finding was without adequate evidence to support it." Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 49, 50, 58 S.Ct. 459, 463, 82 L.Ed. 638. See also National Labor Relations Board v. Fainblatt, 306 U.S. 601, 608, 59 S.Ct. 668, 83 L.Ed. 1014.

The Board's original complaint in this case was issued April 13, 1936. It alleged that Bethlehem was dominating and interfering with the Employees' Representation Plan at the Fore River plant, and contributing financial and other support to it in violation of Section 8(2) and Section 8(1) of the National Labor Relations Act.2 Bethlehem thereupon obtained from the United States District Court an injunction against the scheduled Board hearing, which injunction this court declined to vacate, Myers v. Bethlehem Shipbuilding Corp., 1 Cir., 88 F.2d 154; Id., 1 Cir., 89 F.2d 1000, but which the Supreme Court ultimately directed to be vacated as having been improvidently issued. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. The delay occasioned by this injunction would not, of course, impair the power of the Board to give such relief as was appropriate on the facts as they existed when the complaint was issued.

On February 18, 1938, the Board issued a separate complaint against Bethlehem in respect to its Boston plant, alleging (1) that Bethlehem was dominating and interfering with the formation and administration of the Plan of Employees' Representation at the Boston plant, and contributing financial and other support to it, in violation of Section 8(2) and Section 8(1) of the Act, and further alleging (2) that Bethlehem had refused to bargain collectively with the Industrial Union of Marine & Shipbuilding Workers of America, the designated representative of a majority of the employees in an appropriate unit at the Boston plant, in violation of Section 8(5) and Section 8 (1) of the Act.

These two complaint cases were consolidated by the Board for hearing before a trial examiner, along with petitions filed under Section 9 of the Act, 29 U.S.C.A. § 159, by Local 5 and by Local 25 of the Industrial Union of Marine & Shipbuilding Workers of America, asking for investigation and certification of collective bargaining representatives at the Fore River and Boston plants, respectively. The two complaint cases were argued orally before the Board upon exceptions to the intermediate report of the trial examiner. The Board disposed of the four cases in a single "decision, order and direction for election." In addition to asking us to review the Board's order in the complaint cases, the petitions now before us also ask this court to review and set aside the Board's direction for an election at the Fore River plant. We have no jurisdiction to review such direction for an election. National Labor...

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