Black Diamond SS Corp. v. National Labor R. Board

• Decision Date: 14 February 1938
• Docket Number: No. 135.,135.
• Citation: 94 F.2d 875
• Parties: BLACK DIAMOND S. S. CORPORATION v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Second Circuit

94 F.2d 875 (1938)

BLACK DIAMOND S. S. CORPORATION v. NATIONAL LABOR RELATIONS BOARD.

No. 135.

Circuit Court of Appeals, Second Circuit.

February 14, 1938.

Hunt, Hill & Betts, of New York City (John W. Crandall, Frank J. Zito, and Allen G. Miller, all of New York City, of counsel), for Black Diamond Steamship Corporation.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, both of Washington, D. C., and Laurence A. Knapp, of Washington, D. C., and Samuel Edes, of Philadelphia, Pa., for National Labor Relations Board.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

On November 26, 1935, the Black Diamond Steamship Corporation (hereafter to be called the Black Diamond) made a contract with U.L.O., a union of licensed officers affiliated with the American Federation of Labor, relating to rates of pay, hours and conditions of employment. The contract took effect on December 1, 1935, and remained in force for one year and, in making it, the U.L.O. acted as the representative of the deck and engine room officers of the Black Diamond. Prior to signing the agreement the U.L.O. had checked the licensed officers of the latter and had found that more than a majority of them were among its members. Before the signing of the agreement Local 33 of M.E.B.A., a union claiming to represent a majority of the engineers of the Black Diamond, had asked the latter to enter into an agreement with it. In April, 1936, some negotiations with reference to making such an agreement occurred which fell through and, on July 2, 1936, the M.E.B.A. Local 33 filed a petition with the Regional Director of the National Labor Relations Board for an investigation and certification of representatives of petitioner's licensed engineers pursuant to section 9(c) of the National Labor Relations Act, 29 U.S.C.A. § 159(c). The U.L.O. was made a party to those proceedings and the Board conducted a hearing in which Black Diamond, U.L.O. and M.E.B.A. were represented. The International Union of Operating Engineers was also allowed to file a brief as amicus curiæ. As a result, on September 24, 1936, the Board rendered a decision that the licensed engineers constituted an appropriate unit for collective bargaining within section 9(b) of the Act, 29 U.S.C.A. § 159(b), but found that it was impossible from the proofs offered to determine which union represented a majority of such engineers without an election which was accordingly ordered to be had among the engineers by secret ballot under the supervision of the Director of the Second Region to determine which of the two unions should represent them. The election having been had, the Board, on December 11, 1936, certified that M.E.B.A. Local 33 was the exclusive bargaining agent for the engineers.

Prior to the decision of the Board as to the election and its certification on December 11, 1936, and about November 10, 1936, the chief engineers of three vessels of the Black Diamond refused to sail their ships on the ground that the personnel of the crews was unsatisfactory. Various labor disputes arose about this time. The first controversy was between the Black Diamond and the rank and file of its unlicensed men who belonged to the Curran wing of an organization known as the International Seamen's Union (hereafter called I.S.U.) comprising only unlicensed seamen. These men, without authority from the officers of their union, went on strike because of sympathy with a strike on the Pacific Coast by the Maritime Federation of the Pacific. They were persuaded to do this through the activities of Joseph Curran. The second controversy was with the men of Local 33 of the M.E. B.A. which contained only engineers. The engineers asserted that they would not sail unless the unlicensed crews accompanying their ships were men competent for their work and asserted that at that time only Curran men, in contradistinction to those still loyal to the International Seamen's Union, were competent and available. The Black Diamond refused to take Curran seamen because it was already under contract with the regular I.S.U., and Brown, the leader of the National M.E.B. A., had approved of taking any men holding regular membership in I.S.U. It was because of this controversy that the three chief engineers we have mentioned refused to sail. They remained on board, however, for a time and kept up steam. Two of these chief engineers with their assistants, making eight chief and assistant engineers, left their ships when they sailed on November 18, and 22, 1936, respectively. The third chief engineer and his three assistants remained on board refusing to sail until November 23 when a strike was called and they left their ship. There was a further labor dispute precipitated by Brown, the leader of the National M.E.B.A., who wrote to the Black Diamond a letter dated November 13, 1936, which was not replied to, demanding collective bargaining with his organization as to wage scales and working conditions of the engineers. As a result of these various controversies the engineers of the Black Diamond ships were all on strike by November 23, 1936. It was on that date that the National M.E.B.A. ordered all engineers to strike. In January, 1937, the strike was called off and prior to that, on December 31, 1936, a demand was made to reinstate the engineers on strike. The foregoing matters are set forth in order to show the general background of the issues here involved.

In January and February, 1937, Trainer as the representative of M.E.B.A. Local 33, the bargaining agent of the engineers, filed charges with the Regional Director at New York claiming that the Black Diamond had refused to bargain and also had refused to reinstate the striking engineers. The Board thereupon filed its complaint against the Black Diamond, which resulted in a decision sustaining the charges of refusal to bargain and to reinstate the engineers. It apparently was thought that not only the refusal to bargain was an unfair labor practice but that the failure to reinstate was also one because such failure was equivalent to a discharge of persons whose work had ceased as a consequence of a "current labor dispute" and an employment of other engineers discriminated against the first group contrary to section 8(3) of the National Labor Relations Act, 29 U.S.C.A. § 158(3). The Board ordered the Black Diamond to cease and desist from refusing to bargain collectively with M.E.B.A. and from refusing to reinstate and ordered respondent to offer to 35 named engineers "reinstatement in their former positions, without prejudice to their...