Brown v. National Union of Marine Cooks and Stewards

• Decision Date: 20 November 1951
• Docket Number: No. 30849.,30849.
• Citation: 104 F. Supp. 685
• Parties: BROWN v. NATIONAL UNION OF MARINE COOKS AND STEWARDS et al.
• Court: U.S. District Court — Northern District of California

104 F. Supp. 685

BROWN v. NATIONAL UNION OF MARINE COOKS AND STEWARDS et al.

No. 30849.

United States District Court N. D. California, S. D.

November 20, 1951.

COPYRIGHT MATERIAL OMITTED

James F. Foley, San Francisco, Cal., for petitioner.

Gladstein, Andersen & Leonard, Brobeck, Phleger & Harrison, and Treadwell & Laughlin, all of San Francisco, Cal., for respondents.

LEMMON, District Judge.

Gerald A. Brown, Regional Director of the Twentieth Region of the National Labor Relations Board, acting for and on behalf of the Board, seeks in this proceeding an injunction under Section 10(j) of the National Labor Relations Act, 29 U.S.C.A. § 160(j), enjoining the respondents from engaging in certain alleged unfair labor practices.

The petition alleges that there are pending and undetermined charges filed by various individuals alleging, inter alia, that respondent National Union of Marine Cooks and Stewards, referred to herein under the designation given to it by the parties as MC&S, has been and is engaging in unfair labor practices within the meaning of Section 8(b) subsections (1)(A) and (2) of the Act, 29 U.S.C.A. § 158(b)(1) and (2),¹ and that respondents Matson Navigation Company and American President Lines, herein referred to as Matson and APL respectively, have been and are engaging in unfair labor practices within the meaning of Section 8(a), subsections (1) and (3) of the Act.² Following an investigation, complaints were issued by the Board pursuant to Section 10(b) charging these practices. Answers have been filed by each of the respondents. Essentially, the issues joined relate to the factual and legal quare as to respondents' conduct. There is dispute as to facts as well as to the legal consequences flowing from the facts if established.

It is conceded that the MC&A is a labor organization within the meaning of the Act. Respondents Matson and APL are ship operators and members of the Pacific Maritime Association (referred to as PMA) which is composed of West Coast owners and operators of ocean-going vessels, steam schooners and waterfront employers. MC&S is the collective bargaining representative of the employees in the cooks' and stewards' departments of vessels operated by members of PMA. Matson and APL have employed in their respective stewards' departments personnel secured through the offices of MC&S pursuant to provisions of an agreement between PMA and MC&S under which the members of PMA agree to secure all unlicensed personnel within the classification here concerned from that source. In aid of this MC&S maintains hiring halls at various ports. When help is needed, the employer notifies MC&S and men as required are then dispatched by MC&S with assignment slips to the vessel. The employees thus dispatched, if found satisfactory by the ship owner, are assigned to the jobs for which they have been dispatched. No attack is made upon the validity of the agreement, since the agreement has been approved by the Board. It contains a provision against discrimination by reason of "legitimate union activity" and between members and non-members of the union.

In the summer of 1950 certain members of MC&S, including certain of the complaints in the proceedings before the Board, formed a committee which was called "The Committee to Combat Communist Influence Within the MC&S" to oppose what they considered to be subversive forces and control therein arising subsequent to the disassociation of MC&S from the Congress of Industrial Organizations. The National Maritime Union, herein referred to as NMU, a union affiliated with the CIO, began a campaign to organize the employees in the unit represented by MC&S. The Sailors' Union of the Pacific also became active in organizing those employees. Each of the complainants was a member of MC&S at the inception of the alleged unfair labor practice against him, and an employee in the stewards' department upon a vessel operated by either one or the other of the respondent steamship companies.

This Court is called upon to determine whether there has been a sufficient showing calling for the granting of a restraining order or other appropriate temporary relief. A preliminary injunction is not predicated upon an anticipated determination of issues of fact which may be involved. The determining criteria is 1 — whether the Board had reasonable cause to believe that the charges of unfair labor practices were true, and 2 — that injunctive relief is just and proper under the facts in evidence³. As to the first factor, the test is whether a reasonable person would believe the facts to constitute a violation of the law. The facts are not required to be sufficient to constitute such violation⁴, or to establish that the charges are true⁵. A prima facie case⁶, or a probability of violation⁷, is all that is required.

Under the seniority plan as applied in the stewards' departments, which plan was worked out by MC&S and PMA under the contract and put into operation with the knowledge of the steamship companies, seniority is determined by length of service. A senior waiter has the choice of stations over his junior. If a member of the stewards' department is to be laid off, the junior in service is laid off. A man may remain in continuous service if he has seniority and a man with less seniority may be replaced by a man with greater seniority.

What is named the "swing plan" was instituted by MC&S. Under that plan, in effect until recently, a man who at the end of a voyage had been on the next preceeding three voyages did not sail on the fourth. His place on the fourth was filled by the swing man. Thus the plan afforded employment for four men on three jobs. The other two respondents disapproved of it. They knew, however, that it had been put into effect and that an employee off the vessel on which he was employed on what has been referred to as a "swing trip" was entitled to return to his old job on the following trip. The men who are to be "off on swing" signed off just prior to or shortly following the end of the voyage and they were replaced by men who were sent at the request of the ship from the hiring hall and presented assignment slips issued by the union. A swing trip was not considered by MC&S to be either a break in service or a break in seniority. A man "on swing" had his card marked by the dispatcher "reship" on the ship on which he had been employed. This entitled him to assignment to his old job on the following voyage if he presented himself to the dispatcher's window within a certain period of time prescribed by the union shipping rules. APL and Matson were kept informed by the Union delegate and the yeoman through the chief steward as to those of the ship's personnel who would not make the next voyage. Some of the complainants were served with charges charging violation of the union constitution while they were off on swing and were thereafter refused assignment slips by the union either because of a union rule which requires that a member against whom charges are lodged remain on shore until the charges are heard and determined or because of suspension from the union following the determination of the charges.

During the period involved the Coast Guard refused for security reasons to permit certain of the men dispatched to a ship to sail. This is referred to as "screening off". Many men who were screened off were later cleared by the Coast Guard. The MC&S adopted a rule under which a man screened off and later cleared was entitled to his old job and the man replacing him was considered to be a relief man, filling the position only until the one whom he relieved had been cleared and dispatched to the job. Both respondent steamship companies knew of this rule. There is evidence that two of the complainants, employees of APL, were screened off and later cleared but when they presented themselves to the hiring hall for assignment slips were denied admittance to the hall and refused slips.

There is creditable evidence that the respondent MC&S, its officers and agents, have, through a regular and planned course of conduct, engaged in acts designed to violate the National Labor Relations Act as alleged in the petition. They have used the hiring hall and the assignment slip requirement in a concerted plan to discourage by intimidation and coercion opposition to its leadership as well as to discourage its members from joining or giving support to NMU. This result has been sought through the means of refusing to give to these dissidents, or by force or intimidation preventing them from obtaining, assignment slips to the jobs to which they were entitled, thus depriving them of their livelihood.

These complainants have the right of self organization, which includes the right to attempt to change the leadership and policies of a union. They have the right to bargain collectively through representatives of their own choosing, to join or not to join a union, to assist a union in furthering its purposes to be substituted for another union as their bargaining representative, and to engage in concerted activities for their mutual aid or protection though no union activity is involved or collective bargaining contemplated⁸. I believe that to give effect to the broad purposes of the Act the activities of the employees here mentioned are within the range of rights which Congress intended to protect.

Knowledge on the part of the employer of unfair labor practices practiced by the union alone is not ordinarily sufficient to charge the employer under the Act, since mere knowledge does not give rise to an inference that the person with such knowledge acquiesces therein for...