National Labor Relations Board v. Isthmian SS Co.

Decision Date07 March 1942
Docket NumberNo. 161.,161.
Citation126 F.2d 598
PartiesNATIONAL LABOR RELATIONS BOARD v. ISTHMIAN S.S. CO. (NATIONAL MARITIME UNION OF AMERICA, Intervenor).
CourtU.S. Court of Appeals — Second Circuit

Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, and Gerhard P. Van Arkel, Asst. Gen. Counsel, Louis Libbin and Morris P. Glushien, all of Washington, D. C., and Lester Asher, of Chicago, Ill., Attys., National Labor Relations Board, and Aaron Lewittes, of Washington, D. C., for petitioner.

Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (A. V. Cherbonnier, Robert A. Lilly, and Kenneth B. Halstead, all of New York City, of counsel), for respondent.

William L. Standard, of New York City (Edward J. Malament, of New York City, on the brief), for intervenor.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

CHASE, Circuit Judge.

This order was the result of occurrences which grew out of a largely successful attempt of the National Maritime Union of America, a labor organization affiliated with the Committee for Industrial Organization, to take into its membership the unlicensed members of the crew of the respondent's S. S. Steel Scientist who were members of the International Seamen's Union of America, a labor organization affiliated with the American Federation of Labor, with which the respondent had a preferential hiring agreement.

While the S. S. Steel Scientist was at Norfolk, Va., early in August 1937 to discharge part of a cargo from the Orient, all but two of the unlicensed members of her crew transferred their union affiliation from the I. S. U. to the N. M. U. The vessel afterwards went to Baltimore, Md., to discharge the remainder of her cargo and to be then fumigated. On August 12, 1937, while the vessel was at Baltimore, Flynn, a representative of the respondent, notified the Baltimore delegate of the I. S. U., Reese, that a fireman was needed on the ship to replace one who was leaving. That union sent a fireman to the vessel but the crew, upon learning that he was a member of the I. S. U. refused to let him work, and early on the morning of August 13, 1927 the fireman so reported to Reese who informed Flynn of that fact and warned him that the I. S. U. expected the respondent to comply with its preferential hiring contract. Flynn reported the situation to the respondent's director of labor relations in New York, Jump, and was told to report the trouble to two named agents of the I. S. U. and let them investigate. The ship was due to sail for Portland, Me., that evening and the director of labor relations told Flynn to let him know when it sailed.

It was after this that the respondent, as found by the Board, violated the Act by discriminating against certain members of the crew in regard to their hire and tenure of employment because of their union membership in violation of § 8 of the Act, 29 U.S.C.A. § 158. Decision, in the main, must turn upon whether or not there was substantial evidence to support that finding.

In this connection it must first be noticed that the respondent has bitterly objected to the record on the ground that it is not accurate and there is, indeed, much to indicate that in fact it is not. We have, however, been compelled to deny two motions the respondent has made to secure its correction because of a stipulation that it might be used as the basis of the Board's decision and the present attack upon it must meet the same fate because our power to deal with the record, as otherwise we might, is so curtailed.

Accepting the record as it is, we are convinced that it does show that the respondent's representatives did violate the Act as found by the Board though it must be owned that the fight between the rival unions for membership put the respondent in the equivocal position which led to that result.

After Flynn at Baltimore got in touch with the agents of the I. S. U. as he had been told to do, one of them informed him that if the respondent did not discharge the N. M. U. members of the crew of the Steel Scientist the I. S. U. would call a strike on every vessel of the respondent which docked at Baltimore. Flynn asked the agent if he would supply a new crew for the vessel and the agent told him the I. S. U. could and would do that. He, the agent, also informed Flynn that the N. M. U. members must leave the ship and that he, not Flynn, would have them removed. Flynn reported to Jump in New York who said, "All right; let the Union the I. S. U. handle the thing, but we have got to get the ship going; * * * that is a question for the I. S. U. to handle; we are going to live up to our agreement. Now, the next move is up to the I. S. U. It is up to them. The agreement is very clear and we have got to live up to it and that is all there is to it."

Meanwhile the ship was being fumigated and the crew had left with instructions to return early in the afternoon. They came back to the dock about two o'clock that afternoon but, because of the fumigation, could not then go aboard and were paid while on the dock. This payment of their wages at Baltimore was in accord with the respondent's usual practice and after it was done the crew went aboard. About ten minutes later the crew was ordered to assemble at the No. 3 hatch and was there addressed by Captain Marcosson of the vessel in the presence of Reese. He told the men that he had received word from New York that if they didn't transfer their membership from the N. M. U. to the I. S. U. they would be put off the ship and further said that most of the men had sailed with him for some time; that he was well satisfied with their work and would regret their going but that he had to follow the orders he had received from the respondent. An oiler who had joined the N. M. U. then asked, "Do I understand, Captain, that you are firing us for being N. M. U. men?" Marcosson replied, "Yes, that is what it looks like, son."

Reese then urged the crew to resume membership in the I. S. U. saying in part, "You fellows can change your books back. I have books right here...

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    ...Products Co., 7 Cir., 120 F.2d 567, 573; N. L. R. B. v. Suburban Lumber Co., 3 Cir., 121 F.2d 829, 833; N. L. R. B. v. Isthmian Steamship Co., 2 Cir., 126 F.2d 598, 600, 601; N. L. R. B. v. Central Dispensary & Emergency Hospital, 79 U.S.App. D.C. 274, 145 F.2d 852, 854; N. L. R. B. v. Sun ......
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