National Labor Rel. Bd. v. National Maritime Union
Decision Date | 01 July 1949 |
Docket Number | No. 189,Docket 21099.,189 |
Citation | 175 F.2d 686 |
Parties | NATIONAL LABOR RELATIONS BOARD v. NATIONAL MARITIME UNION OF AMERICA et al. |
Court | U.S. Court of Appeals — Second Circuit |
Robert N. Denham, David P. Findling, A. Norman Somers and Fannie M. Boyls, Washington, D. C., for petitioner.
William Standard, Herman Rosenfeld, Herman E. Cooper, New York City (H. Howard Ostren, New York City, of counsel), for respondent.
Before L. HAND, Chief Judge, and CLARK and FRANK, Circuit Judges.
1. Respondents contend that the Board violated the Administrative Procedure Act, 5 U.S.C.A. §§ 1001-1011, in this respect: The Board's complaint issued on June 2, 1948. At the opening of the hearing before the Trial Examiner on June 14, respondents requested an adjournment on the ground that they and their counsel were engaged in court, and in other administrative hearings, relative to the very same matters. This request was refused. Respondents then withdrew from the hearing which continued on June 14, 15 and 16. After the issuance of the Trial Examiner's Intermediate Report, respondents on July 2 filed a motion before the Board requesting that the hearing be reopened to give them an opportunity to present their case, or, in the alternative, that the Board incorporate as part of the record in this case the evidence to be introduced by the respondents in another proceeding, then scheduled to be heard at New York before a Trial Examiner of the Board on July 12, which, the respondents stated, involved issues identical with those in the instant proceeding. The Board denied this motion. Subsequently, at the oral argument before the Board, counsel for respondents stated that he did not want the case reopened or any further hearing held because of the Trial Examiner's failure to grant an adjournment, and that he was requesting only that the Board incorporate as a part of the record the evidence regarding the hiring hall which respondents were introducing in another case then being heard in New York. The Board granted this request, and all evidence which respondents assert they would have presented at the hearing in this case, had they not walked out, was incorporated as a part of the record in this case. In these circumstances, at least, there is no merit to respondents' procedural objections.
2. Most of the other contentions made by respondents in this court were considered and satisfactorily answered in the Board's Decision.1 There is no need to discuss the Board's answers in detail. Suffice it to say that the Board did not hold violative of the Act the mere hiring-hall provisions of the agreement which respondents demanded of the employers. In its decision, the Board said: 2
3. There is ample record evidence to support the Board's findings of fact. And the statute, in the light of its clear legislative history relative to hiring-halls, justifies the Board's legal conclusions.3 Like the Board, we see no rational basis for respondents' argument that Section 8(b) (2) does not make it an "unfair labor practice" to attempt to cause an employer to discriminate against a group of employees or potential employees but only against some specified employees or potentional employees.
4. In its Decision, the Board said:
We, too, take that position. Sometimes, to be sure, the nature of a statute is such that impliedly it delegates to the courts, in interpreting it, the power and duty to round out the legislative legislation by judicial legislation4 which involves considerations of social policy.5 But where, as here, the legislature's purpose is plain, there is no room for such judicial "law-making." Wherefore (passing for the moment the question of constitutionality) we must give effect to that purpose, without regard to our own beliefs, no matter how strong they may happen to be, as to the social undesirability of the resultant return to the so-called shape-up in the employment of seamen.6 Otherwise we would be setting ourselves up, unlawfully, as a super-Congress.7
5. As a result of negotiations, respondents entered into new bargaining agreements with the several employing companies on June 21, October 16, October 21, and November 1, 1948. We think those agreements do not call for non-enforcement of the Board's order of August 17, 1948. True, the new agreements with three of the companies modify the hiring-hall provisions of the 1947 agreements by permitting non-union seamen in the employ of those companies at the time of the execution of the new agreements to remain in such companies' employ, and by permitting the companies at the beginning of a new shipping season to recall such non-union men, who may be in their employ at the end of the previous shipping season. But these new agreements provide that, in other respects, the "employment practices" — i. e., the hiring-hall practices requiring the companies to give preference to union members in hiring applicants — shall be continued until the expiration date of the new agreements or until such practices shall "receive final judicial determination."8
6. Respondents contend that the pertinent provisions of the Act, so far as they apply to the facts here found, violate the First, Fifth and Thirteenth Amendments to the Constitution.9 In carefully considering those contentions, we have had in mind that the unusual power of the American judiciary to veto judicially, as unconstitutional, a Congressional enactment10 should be exercised by an intermediate appeal court with an especially watchful eye on the decisions of the Supreme Court,...
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