National Labor Relations Bd. v. DELAWARE-NEW JERSEY F. CO., 6132.

• Decision Date: 18 June 1937
• Docket Number: No. 6132.,6132.
• Citation: 90 F.2d 520
• Parties: NATIONAL LABOR RELATIONS BOARD v. DELAWARE-NEW JERSEY FERRY CO.
• Court: U.S. Court of Appeals — Third Circuit

90 F.2d 520 (1937)

NATIONAL LABOR RELATIONS BOARD v. DELAWARE-NEW JERSEY FERRY CO.

No. 6132.

Circuit Court of Appeals, Third Circuit.

June 18, 1937.

Robert B. Watts, Charles Fahy, and Jerome I. Macht, all of Washington, D. C., and Samuel G. Zack, for petitioner.

Lewis Wolff & Gourlay, of Philadelphia, Pa. (Otto Wolff, Jr., of Philadelphia, Pa., of counsel), for respondent.

Before BUFFINGTON and BIGGS, Circuit Judges, and DICKINSON, District Judge.

DICKINSON, District Judge.

This is a petition to this court under the provisions of the National Labor Relations Act (29 U.S.C.A. § 151 et seq.) to enforce by its processes the findings of the Board.

The case would present no difficulties were it not for the unusual fact situation presented.

The primary purpose of the act of Congress is to obviate appeals to brute force which are too often the accompaniment of labor disputes.

The proceeding began with a complaint of unfair practices charged to the respondent. The Board has made its findings sustaining the complaint. Ordinarily nothing would remain to be done except to enforce these findings. The questions sought to be raised have become, however, practically moot. There is now no controversy; no complaint; no grievance. All which is left is the abstract question of the right of a labor union official to negotiate with the respondent employer on behalf of the engineer employees concerned, for a contract of employment. The engineers have disposed of any controversy there may have been by themselves unanimously making a contract on terms acceptable to them with the employer. This contract is for a year ahead. There is in consequence nothing to negotiate. The number of engineer employees is twelve. The sole objective of any negotiation would be to agree upon terms of employment. This agreement has already been made, and, as we have said, is entirely acceptable to the employees concerned, each of whom has made the contract agreed upon. In view of this we see no need for the intervention of this or any other court. To make the order asked of us might defeat the very purpose of the act of Congress by creating an occasion for strife which otherwise would not exist.

Petition dismissed.

BIGGS, Circuit Judge (dissenting).

The National Labor Relations Board has petitioned this court to enforce an order issued by the Board upon December 30, 1935, and reaffirmed by it upon November 20, 1936, pursuant to the provisions of section 10 of the National Labor Relations Act (29 U.S.C.A. § 160). This order provides that the respondent, Delaware-New Jersey Ferry Co., "shall cease and desist from refusing to bargain collectively with Marine Engineers' Beneficial Association, No. 13, as the exclusive representative of the licensed engineers employed in such capacity by respondent. * * * in respect to rates of pay, wages, hours of employment and other conditions of employment."

The respondent, Delaware-New Jersey Ferry Company, is a Delaware corporation and is engaged in the business of ferrying passengers and freight across the Delaware river for hire between Marine Terminal, at Wilmington, Del., and Pennsgrove, N. J., and between New Castle, Del., and Pennsville, N.J.

In operating its ferries the respondent employs the licensed engineers, twelve in number, referred to in the first paragraph of this opinion. These twelve engineers and the respondent fell into difficulties regarding wages and hours of labor, and the engineers designated and authorized Marine Engineers' Beneficial Association, No. 13 (hereafter referred to as the Association), to bargain collectively with the respondent on their behalf. The respondent refused to bargain with this designated representative, and, after hearing, the Board proceeded to declare that the respondent by this refusal had engaged and was engaging in unfair labor practice affecting commerce within the meaning of section 8, subd. 5, and section 2, subds. 6 and 7, of the National Labor Relations Act, 29 U.S.C.A. §§ 152(6,7), 158(5), and entered the order above referred to. The respondent refused to obey the order of the Board and filed its petition with this court praying that this court enforce the Board's order.

That petition was filed on April 25, 1936, but upon October 29, 1936, the respondent filed a petition of its own alleging that after the decision of the Board the licensed engineers had designated a committee consisting of three of their own number as their exclusive representatives for collective bargaining with the respondent, and that therefore the question of the enforcement of the order of the Board was no longer in issue since the Association had been superseded by the three new negotiators. The respondent prayed leave to take testimony in support of the allegations of its petition and this court granted such leave. It then appeared that a contract had been entered into between the three negotiators, acting on behalf of and for the licensed engineers, and the respondent, dealing with and disposing of questions of hours of labor, working conditions, and wages. In respect to the selection of the committee of three negotiators the Board, however, specifically found that: "* * * the designation of the committee, consisting of George Biddle, Paul Gibbons and Edgar Russel, was not the...