NLRB v. Seine and Line Fishermen's Union of San Pedro, 19227

• Decision Date: 09 May 1967
• Docket Number: 19228.,No. 19227,19227
• Citation: 374 F.2d 974
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SEINE AND LINE FISHERMEN'S UNION OF SAN PEDRO, affiliated with Seafarers' International Union of North America, AFL-CIO, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Paul BIAZEVICH et al., dba M. V. LIBERATOR et al., Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

374 F.2d 974 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SEINE AND LINE FISHERMEN'S UNION OF SAN PEDRO, affiliated with Seafarers' International Union of North America, AFL-CIO, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Paul BIAZEVICH et al., dba M. V. LIBERATOR et al., Respondents.

Nos. 19227, 19228.

United States Court of Appeals Ninth Circuit.

January 6, 1967.

Rehearing Denied May 9, 1967.

COPYRIGHT MATERIAL OMITTED

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Nancy M. Sherman, Attys, N. L. R. B., Washington, D. C., Ralph E. Kennedy, Director, N. L. R. B., Los Angeles, Cal., for petitioner.

Margolis, McTernan & Branton, Hill, Farrer & Burrill, Carl M. Gould, Stanley E. Tobin, Cecil E. Ricks, Jr., Los Angeles, Cal., Robert Gilbert, Beverly Hills, Cal., for respondent boat owners and individuals.

Gilbert, Nissen & Irvin, Beverly Hills, Cal., for respondent Seine & Line Fishermen's Union of San Pedro.

Before BARNES, JERTBERG and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

These cases are before the court upon separate petitions of the National Labor Relations Board for enforcement of two separate orders, both issued March 2, 1962. This court has jurisdiction under Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), the alleged unfair labor practices having occurred in San Pedro, California, within this judicial circuit.

Respondent boat owners operate fishing vessels out of San Pedro Harbor in Southern California. In 1955 the fishermen on these boats were represented by Fishermen's Union, Local 33 ILWU. When tuna prices declined markedly in the summer of 1955, the boat owners asked the members of Local 33 to accept wages substantially lower than those to which they were contractually entitled. They refused. As a result, the boat owners, unable to operate at a profit, decided to tie up their boats for the remainder of the year.

Looking ahead to the 1956 season, the boat owners gave Local 33 timely notice of intent to terminate their contract at the end of 1955. In addition, during the last few months of that year the boat owners made it clear to their crew members that continued employment was contingent upon joining Seine and Line Fishermen's Union of Los Angeles Harbor Area, Seafarer's International Union of North America, AFL-CIO, the only other available source of labor in the area. It is noteworthy that Seine and Line members having agreed to accept lower wages, continued fishing throughout 1955.

Late in December, 1955, the boat owners sent certain "clothes letters" to their crew members instructing them to remove their belongings from the boats by December 31. In early January 1956 the boat owners, true to their warnings of the past few months, signed an exclusive collective bargaining agreement with Seine and Line. The union security provision of this contract made membership in the Seine and Line Union an express condition of employment on the boats in question. As a result, most of the Local 33 fishermen refused to fish on these boats in 1956.

On the basis of these facts,¹ the Board, in No. 19,228, made the following conclusions. First, the boat owners, by telling their crew members that they would be replaced unless they joined Seine and Line, interfered with, restrained, and coerced their employees in violation of Section 8(a) (1) of the Labor Management Relations Act, 29 U.S.C. § 158. Second, in accord with a general understanding in the industry, the "clothes letters" constituted discharges of 52 members of the 1955 crew. Because these discharges were motivated by a desire to avoid dealing with Local 33, they were discriminatory within the meaning of Sections 8(a) (3) and 8(a) (1) of the Act. Third, in early January 1956 Seine and Line was not the majority representative of the employees and, at any rate, Local 33 was vigorously maintaining its continuing majority status. Consequently, by entering into and enforcing a union-security contract with Seine and Line at that time the employers discriminated against Local 33 and rendered unlawful assistance and support to Seine and Line, all in violation of sections 8(a) (1), 8(a) (2) and 8(a) (3) of the Act. Fourth, by their participation in the above mentioned contract Seine and Line restrained and coerced employees in violation of sections 8(b) (1) (A) and 8(b) (2) of the Act. Fifth, several of the union security provisions of the Seine and Line contract were unlawful on their face. By incorporating into the contract and by enforcing such provisions, the employers violated sections 8 (a) (1), 8 (a) (2) and 8(a) (3) of the Act, and Seine and Line violated sections 8(b) (1) (A) and 8(b) (2) of the Act.

In No. 19,227 the Board found that Seine and Line's collective bargaining agreements entered into after September 1956 with the owners of 43 other fishing vessels violated sections 8(b) (1) (A) and 8(b) (2) of the Act by virtue of their inclusion of the identical unlawful union security provisions struck down in No. 19,228.

Respondents attack nearly every one of these findings. They claim that their statements, rather than being coercive, merely reflected the facts of labor life in San Pedro Harbor; that the "clothes letters" were not intended to be discharges but, even if they were, the critical factor of illegal intent was not proven; that Seine and Line did represent a majority of the employees but even if it did not the employers had no reasonable basis for crediting Local 33's claim of majority representation; that the union security provisions of Seine and Line's contracts, although technically deficient, were not illegal per se.

Respondents propounded these same claims to the Board, but each was rejected. The Board, in assessing the facts and the inferences to be drawn from them, made contrary conclusions about the nature and significance of the events in issue.

Our scope of review is limited. The question before us, as reviewing court, is not whether the conclusions drawn by the Board are right, but rather whether they are reasonable. See 4 Davis, Administrative Law (Treatise) § 29.06, at 143 (1958). It is not our province to displace the Board's interpretation of conflicting views with our own.

In light of these principles we conclude that the findings of the Board are supported in each case by substantial evidence considering the record as a whole and that, although different inferences might have been drawn from the facts, the Board's construction of the events herein is both reasonable and proper.

But respondents claim that even if there is substantial evidence in the record to support the findings of the Board, we should deny enforcement to the Board's order because the entire proceedings were tained by grave procedural errors.

Perhaps an outline of the procedural events is in order. This hearing was opened August 5, 1957 and closed July 9, 1958. However, for reasons to be discussed below, the hearing was reopened September 8, 1958 and not ultimately concluded until January 12, 1959.

At the original hearing the trial examiner upheld the refusal of the attorney for the general counsel to produce for purposes of impeachment the signed prehearing statements of witnesses who had testified for the general counsel. After the hearing closed, but before the trial examiner issued his intermediate report, the Board in Ra-Rich Mfg. Corp., 121 N. L.R.B. 700 (1958), under the compulsion of N. L. R. B. v. Adhesive Products Corp., 258 F.2d 403 (2d Cir. 1958) recognized that the principle announced in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), regarding the right of counsel in a criminal trial to examine pretrial statements of witnesses called by the government, was applicable to Board proceedings. Consequently, the trial examiner reopened the record and directed the general counsel to supply respondents with all pre-trial statements made by witnesses who had testified in the earlier proceeding.

At the reopened hearing, 58 of the 71 witnesses who had testified at the original hearing returned and were cross-examined on the basis of their pretrial statements. About 13 witnesses, whose statements had been handed over to respondents, failed to appear for further cross-examination. The Board, however, adequately protected respondents' rights by striking the testimony of these non-appearing witnesses from the record.²

But respondents contend that of the 58 witnesses subjected to cross-examination at the reopened hearing, over 10 testified to the existence of signed statements which were never produced. Since these statements were allegedly given to either the general counsel or to counsel for the charging party, respondents claim that the Board erred in failing to strike the testimony of such witnesses in accord with Board Rule 102.118.³

However, at the reopened hearing the attorneys for the general counsel and for the charging party, in response to questioning by counsel for respondents, repeatedly stated that they had thoroughly searched their records and had been unable to find any statements other than those which they had already handed over.⁴ Where statements have been lost or destroyed in good faith the testimony of the witnesses concerned need not be struck. See Killian v. United States, 368 U.S. 231, 239-243, 82 S.Ct. 302, 7 L.Ed. 2d 256 (1961); United States v. Tomaiolo, 317 F.2d 324, 327-328 (2d Cir. 1963), cert. denied, 375 U.S. 856, 84 S.Ct. 119, 11 L.Ed.2d 83 (1963).

Next, respondents assert that at the reopened hearing the trial examiner unduly limited the scope of cross-examination of those witnesses who did reappear. It is true that at one point he ordered respondents to limit their examination to establishing merely the fact of an omission from a witness' affidavit of facts later related by the witness at the hearing. This is contrary to the...