National Labor Rel. Board v. Sun Shipbuilding & Dry D. Co.

• Decision Date: 31 March 1943
• Docket Number: No. 8106.,8106.
• Citation: 135 F.2d 15
• Court: U.S. Court of Appeals — Third Circuit
• Parties: NATIONAL LABOR RELATIONS BOARD v. SUN SHIPBUILDING & DRY DOCK CO.

135 F.2d 15 (1943)

NATIONAL LABOR RELATIONS BOARD v. SUN SHIPBUILDING & DRY DOCK CO.

No. 8106.

Circuit Court of Appeals, Third Circuit.

Argued December 11, 1942.

Decided March 31, 1943.

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David Findling, of Washington, D. C. (Robert B. Watts, General Counsel, Ernest A. Gross, Associate General Counsel, Gerhard P. Van Arkel, Asst. General Counsel, and Sanford H. Bolz, Attorney, National Labor Relations Board, of Washington, D. C., on the brief), for petitioner.

Sylvan H. Hirsch, of Philadelphia, Pa. (Joseph S. Conwell, Robert John Brecker and Pepper, Bodine, Stokes & Schoch, all of Philadelphia, Pa., on the brief), for respondent.

Guy W. Davis, of Chester, Pa., for intervenor, Sun Ship Employees Ass'n.

Before MARIS, JONES, and GOODRICH, Circuit Judges.

JONES, Circuit Judge.

This matter is here on the petition of the National Labor Relations Board for a decree enforcing its order against the respondent, the Sun Shipbuilding and Dry Dock Company, entered in a complaint proceeding instituted upon charges filed by the Industrial Union of Marine and Shipbuilding Workers of America, a C.I.O. affiliate (hereinafter referred to as the "Union").

The order is based upon the Board's conclusions that the respondent was guilty of unfair labor practices as defined by Sec. 8 (1), (2) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158 (1-3), in that it (1) interfered with, restrained and coerced its employees in the exercise of their right to self-organization as guaranteed by Sec. 7 of the Act, 29 U.S. C.A. § 157; (2) dominated and interfered with the formation of the Sun Ship Employees Association, an unaffiliated union (hereinafter referred to as the "Association"); and (3) discriminated in regard to the hire and tenure of five employees for the purpose of discouraging membership in the Union and of encouraging membership in the Association. The order directs the respondent to cease and desist from the unfair labor practices found and to take affirmative action (a) by withdrawing recognition from the Association as the representative of any of the respondent's employees and by disestablishing it as such representative; (b) by offering reinstatement to and making whole four of the five employees found to have been discriminated against; and (c) by posting notices of intention to comply, etc.

The respondent has answered denying its guilt of the unfair labor practices found and praying that the Board's order be not enforced. No jurisdictional question is involved, the parties having stipulated in advance of the hearing that the respondent's business is such as to make it amenable to the provisions of the Act within the intendment of Sec. 2 (6) and (7), 29 U.S.C.A. § 152 (6, 7). The Association, which was granted leave by the Board to intervene and thereafter participated in the hearing upon the complaint, has also filed an answer to the pending petition in which it denies that it was dominated, influenced or assisted by the respondent and prays that the order be denied enforcement in respect of the disestablishment provision.

Among the Labor Board cases which have come to our attention this case appears to be sui generis. The Board's findings disclose that the Association, which the respondent is ordered to disestablish as bargaining agent, was the choice of a substantial majority of the respondent's employees expressed by secret ballot at a consent election conducted under the supervision of the regional director of the National Labor Relations Board pursuant to the rules and regulations of the Board and whereat the Association and the now complaining Union were the nominees. No other instance has been brought to our attention where the Board has seen fit to disestablish a bargaining agent which was the duly certified choice of a majority of the employees in a designated unit as the result of an election conducted by the Board. This is by no means intended to imply that the Board may not disestablish a bargaining representative so chosen and so certified. Of course, where the unfair labor practices are committed after the certification of the bargaining agent, they may quite appropriately require the disestablishment of the certified agent. See Humble Oil & Refining Co. v. National Labor Relations Board, 5 Cir., 113 F.2d 85, 88. And even where the practices complained of have occurred before the certification, if the Board in the exercise of its discretion deems disestablishment to be an appropriate remedy under the circumstances, its right so to order may be conceded. But, manifestly, the possibilities inherent in the exercise of such power, upon a complaint filed long after a theretofore unquestioned certification and for matters which allegedly occurred in the formation of the bargaining agent prior to the election, are so vast in their implications as to require an especially detailed scrutiny of the evidence in order that it may be determined with reasonable certainty whether the findings whereon the Board directs disestablishment in such circumstances are justified. After all, the fundamental purpose of the Act is to secure to employees, entitled to its protection, the right to bargain collectively through representatives of their own choosing. Obviously, therefore, once a majority choice has been competently polled and authoritatively certified, it is not to be avoided lightly. Otherwise, the employees' right may actually be infringed and the purpose of the Act thereby thwarted.

The consent election in this instance was held on March 19, 1937. Of the total of 3,836 ballots cast, from among the whole of the respondent's then approximately 4,200 employees, there were 2,398 votes for the Association, 1,412 for the Union and 26 blank, void or challenged ballots. The result was promptly (March 22, 1937) certified by the regional director of the Labor Board to the employer, to the Association and to the Union. Thenceforth the respondent dealt¹ with the Association as the bargaining agent of its employees without objection from any one until the filing of the current charges by the Union on January 15, 1940, almost three years later.

In substantial part, the charges relate back to the formation of the Association and other matters antecedent to the election. And, on the basis of those charges the Board finds the respondent guilty of unfair labor practices in the particulars specified. Aid in the administration of the Association subsequent to the election was also charged and found. But, as to that, it should be borne in mind that, following the official and unimpeached certification of the Association as a result of the election, no other course was open to the respondent (if it was to comply with the requirements of the Act) than to bargain with the Association as the collective representative of its employees. Certainly, such was the case at least so long as the Association's majority status was not competently overthrown and its integrity remained otherwise unquestioned.

The Association was the direct outgrowth of a back-to-work movement by 2,200 non-striking employees in the face of a picket line then being maintained by members of the Union which was conducting a strike at the respondent's shipyard. The strike began on December 7, 1936, when from 900 to 1,000 employees, who were members of the Union, walked out because of a jurisdictional dispute, and wholly without relation to any complaint as to the wages, hours or conditions of employment obtaining at the respondent's plant. As the Board found, the production workers were prevented, because of the mass-picketing tactics of the strikers, from entering the respondent's premises. Consequently, all work thereupon ceased. For a description of what then ensued we quote directly from the Board's findings as follows:

"Since the non-union employees were anxious to return to work, feeling ran high and the situation became more tense as on December 8, 9, and 10, the union members continued to prevent ingress to the shipyard. In fact, on December 9 and 10, a clash was avoided only when Richard L. Burke, the respondent's vice president and general manager, acting on orders from the respondent's president, John G. Pew, Sr., advised the employees not to break through the picket line as the respondent was attempting to work out a peaceful solution with the Union. On December 10, Burke reported to Pew that `this is the second time I have been up there. Those people are going to force this issue. Many of the men have declared that they are going to come back tomorrow — to me it looks serious.' That evening Burke instructed the three superintendents who had supervision over various sections of the shipyard, `By all means to keep out of any movement the next day, that it was going to be serious.' On the morning of December 11, about 2,200 employees, representing all 3 shifts * * * gathered behind the pickets. Although forewarned, the respondent's officials on this occasion made no attempt to disperse its employees who broke through the picket line and succeeded in entering the shipyard. In the ensuing riot many were injured, some seriously."

The implication contained in the above-quoted finding that the respondent's officials made no attempt to disperse the non-striking workers who, desiring admission to their place of employment, broke through the picket line could not have been intended to fasten responsibility in such regard upon the respondent. As the finding indicates, the "break-through" proved to be as serious in accomplishment as it had been ominous in prospect.² Moreover, the Board expressly found, in this same connection, that "There was no evidence * * * to indicate that any of the strikers were solicited to return to work nor did the respondent in any other way interfere with the lawful activities of the strikers. While * * * several supervisory employees of the respondent capitalized upon the desire of the...