National Marine Engineers Beneficial Ass'n v. NLRB

• Decision Date: 13 January 1960
• Docket Number: Docket 25300.,No. 71,71
• Citation: 274 F.2d 167
• Parties: NATIONAL MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO, and International Organization of Masters, Mates and Pilots, Inc., AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL MARITIME UNION, AFL-CIO, Rivers Joint Organizing Committee, National Marine Engineers Beneficial Association, AFL-CIO, and International Organization of Masters, Mates and Pilots, Inc., AFL-CIO, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

274 F.2d 167 (1960)

NATIONAL MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO, and International Organization of Masters, Mates and Pilots, Inc., AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL MARITIME UNION, AFL-CIO, Rivers Joint Organizing Committee, National Marine Engineers Beneficial Association, AFL-CIO, and International Organization of Masters, Mates and Pilots, Inc., AFL-CIO, Respondents.

No. 71, Docket 25300.

United States Court of Appeals Second Circuit.

Argued November 19, 1959.

Decided January 13, 1960.

Lee Pressman, New York City (Ned R. Phillips, New York City, on the brief), for respondent National Marine Engineers' Beneficial Ass'n, AFL-CIO.

Betty H. Olchin, New York City (Marvin Schwartz, New York City, on the brief), for petitioner International Organization of Masters, Mates & Pilots, Inc.

Fannie M. Boyls, Washington, D. C. (Stuart Rothman, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Ass't. Gen. Counsel and Margaret M. Farmer, Washington, D. C., on the brief), for National Labor Relations Board.

Before MEDINA, MOORE and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

This case relates to an order of the National Labor Relations Board dated July 29, 1958, requiring petitioners National Marine Engineers Beneficial Association, AFL-CIO (MEBA), and International Organization of Masters, Mates and Pilots, Inc., AFL-CIO (MMP), and also National Maritime Union, AFL-CIO (NMU), and Rivers Joint Organizing Committee (RJOC), to cease and desist from violating the provisions of § 8(b) (4) (A) and (B) of the National Labor Relations Act, 29 U.S.C.A. § 158(b) (4) (A) and (B), that make it an unfair labor practice "for a labor organization or its agents * * * to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, * * * transport or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services" where an object thereof is (A) to force or require an employer to cease doing business with any other person or (B) to force or require an employer to recognize or bargain with a labor organization that has not been duly certified as the representative of his employees. The case comes to us on petitions of MEBA and MMP to review and set aside the order as to them and upon a cross-petition by the Board requesting enforcement of its order against all four labor unions. NMU and RJOC did not appear. We have jurisdiction because MEBA and MMP maintain offices and do business within this circuit, 29 U.S.C.A. § 160(f). The principal issue is whether there was sufficient basis for the Board's finding that the conduct of MEBA and MMP, which it held to violate § 8(b) (4) (A) and (B), was conduct by "a labor organization or its agents" to which alone § 8 (b) applies.

In August, 1954, NMU, MEBA and MMP set up RJOC. The purpose of doing this was to enable the member unions to organize the entire crews of commercial vessels on the Mississippi and its tributaries with the least organizing manpower. The policies of RJOC were determined by a committee composed of a representative of AFL-CIO, acting as coordinator, and of officials of NMU, MEBA and MMP. At least five organizers were assigned to assist in RJOC's work; two were supplied by NMU and one each by MMP, MEBA and AFL-CIO.

The subject of RJOC's organizing efforts in the instant case was the S&S Towing Company of Joliet, Illinois. S&S owned two tow-boats, the Franklin D. Roosevelt and the Sandra Marie. During April, 1957, these boats were exclusively engaged in towing barges for Standard Oil Company of Indiana between the latter's barge terminal at Chicago and its refinery at Wood River, Illinois, and from the Wood River refinery into Missouri.

The Board found that RJOC and its three sponsoring organizations, NMU, MEBA and MMP, after calling a strike against S&S, induced Standard's employees to refuse to handle articles transported by S&S in order to force Standard to refuse to deal with S&S, and to force S&S to bargain with the unions as the collective bargaining representatives of the employees of S&S although the unions had not been certified as such. The unions' activities succeeded. Their establishment of a picket line and a threat by Standard's employees not to cross it led Standard to notify S&S that Standard was arranging for another company to tow the oil barges until S&S settled its labor dispute. S&S speedily capitulated; on the next day it agreed on an election, the agreement being signed by the RJOC coordinator "For the Union." Two days later the coordinator advised Standard that the strike against S&S was settled. In the election the employees were given the choice of voting for or against the unions as a group; the unions won. Over a year later, in July, 1958, the Board entered the order here under review requiring the unions (1) to cease and desist from inducing the employees of Standard or of any employer other than S&S to engage in a strike or concerted refusal to work with the object of forcing the employer to cease doing business with S&S or to force S&S to recognize the unions as the collective bargaining representative of its employees unless certified, and (2) to post a form of notice to that effect at their respective business offices and mail it to Standard and S&S for similar posting, the companies willing.

The findings as to the unions' conduct are not challenged by RJOC or MNU, and though MEBA's and MMP's petitions for review preserved the point, they have not briefed or argued it before us. There was abundant evidence to support the findings of conduct forbidden by § 8(b) (4) (A) and (B) if petitioners come within them. Since NMU and RJOC concededly were "labor organizations," we therefore grant enforcement against them.

The facts appropriately found in the intermediate report of the Board's trial examiner, 121 N.L.R.B. at pages 219-220, make it unnecessary to discuss another ground for review asserted by MMP and not waived by MEBA although not argued by it, namely, that if there was any violation of § 8(b), it was committed by the locals rather than by the parent organizations.

We come therefore to the issue whether the action here taken by MEBA and MMP was action by "a labor organization or its agents" within the meaning of § 8(b).

The statutory background is made up of three definitions in § 2 of the Act, 29 U.S.C.A. § 152. Under § 2(5) a "labor organization" is one "in which employees participate." Section 2(3) excludes from the definition of "employee" "any individual employed as a supervisor" or any individual employed by an employer subject to the Railway Labor Act, 45 U.S. C.A. § 151 et seq. Section 2(11) defines "supervisor." We set forth in the margin these sub-sections insofar as pertinent.¹

MEBA says its membership is composed exclusively of supervisors; MMP says its members also are all supervisors, save for the membership in "Associated Maritime Workers Locals" of certain railway workers who, like supervisors, are excluded from the statutory definition of "employee." The Board denies this, and contends in the alternative that, on the facts here, since RJOC and NMU were "labor organizations," MEBA and MMP, even if not themselves "labor organizations," can be held as "agents" under the provision of § 8(b) quoted above. To this alternative contention MEBA and MMP reply that (1) the legislative history shows that § 8(b) does not impose independent liability on an "agent" of a labor organization, and (2) there was no evidence sufficient to warrant a finding that they were acting as agents for NMU and RJOC.

We see no reason why a labor union, even though not itself a "labor organization," cannot be held under § 8 (b) if it has acted as an agent for a "labor organization." We do not doubt that, as MEBA and MMP argue, a prime purpose for the inclusion of "or its agents" in § 8(b) and the specification of the standard of agency in § 2(13) was a desire of Congress to prevent application under the National Labor Relations Act of the view, stated in United Brotherhood of Carpenters and Joiners of America v. United States, 1947, 330 U.S. 395, 406, 67 S.Ct. 775, 778, 91 L.Ed. 973, that § 6 of the Norris-LaGuardia Act, 29 U.S.C.A. § 106, providing that "No officer or member of any association or organization * * * participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or ratification of such acts after actual knowledge thereof," meant "something different from corporate criminal responsibility for the acts of officers and agents in the course or scope of their employment." Undoubtedly, as Senator Taft said, 93 Cong.Rec. 6859 (1947), in a speech on which petitioners rely, the new language in the Labor Relations Act had the effect that "* * * union business agents or stewards acting in their capacity of union officers may make their unions guilty of an unfair labor practice in the bill, even though no formal action has been taken by the union to authorize or approve such conduct." But Senator Taft did not say this was its only effect.

The Board has long held that persons acting for employers can be found guilty of unfair labor practices, both under the definition of "employer" as including "any person acting in the interest of the employer" in § 2(2) of the original Act, N. L. R. B. v. Sun Tent-Luebbert Co., 9 Cir., 1945, 151 F.2d 483, certiorari denied, 1946, Merchants and Manufacturers Association of Los Angeles v. N. L. R. B., 329 U.S. 714, 67 S.Ct. 44, 91 L.Ed. 620; National Labor Relations Board v. Mylan-Sparta Co., 6 Cir., 1948, 166 F.2d...