Pittsburgh SS Co. v. National Labor Relations Bd.
| Decision Date | 05 April 1948 |
| Docket Number | No. 10372.,10372. |
| Citation | 167 F.2d 126 |
| Parties | PITTSBURGH S. S. CO. v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Lee C. Hinslea and Lucian Y. Ray, both of Cleveland, Ohio (Leckie McCreary Schlitz & Hinslea, of Cleveland, Ohio, on the brief; Lee C. Hinslea and Lucian Y. Ray, both of Cleveland, Ohio, of counsel), for petitioner.
Louis Belkin, of Cleveland, Ohio (David P. Findling, Ruth Weyand, and Fannie M. Boyls, all of Washington, D. C., on the brief), for respondent.
Before SIMONS, ALLEN and MILLER, Circuit Judges.
Upon the filing of the petition to review and set aside an order of the National Labor Relations Board, the Board responds with a request for its enforcement. The petitioner assails the order on the ground that the Board made no independent findings; that the findings and conclusions of the trial examiner, which it adopted, were arbitrary and biased; and that the evidence fails to establish the unfair labor practices upon which the Board's order was based.
The petitioner operates 73 vessels on the Great Lakes and their tributary waters, engaged in carrying iron ore, coal and limestone. They are manned by approximately 600 licensed officers and 2,000 unlicensed men. Prior to 1943 the petitioner's employees had never been represented by any labor organization. In that year the National Maritime Union undertook to organize its unlicensed personnel and pursuant to a stipulation between the petitioner and the union for the certification of an election, one was held in June, 1944, which resulted in the union's defeat. It became the contention of the Board that in the two month period between the start of the 1944 sailing season and the date of the election, the petitioner engaged in a course of conduct which was designed and calculated to insure the defeat of the union and to frustrate its organizational efforts; that this was done by the petitioner's distribution to employees of letters and literature relating to the union and its campaign, statements and activities of licensed officers upon its vessels of a threatening and disparaging character, interrogation of its employees concerning union membership, abuse of employee organizers and the discharge of an organizer named Shartle, for union activities.
Our first consideration must be given to the so-called Ferbert letters. These were two signed by the petitioner's president, A. H. Ferbert, and addressed to the unlicensed men, in which he stated that they would be better off if they remained unorganized for reasons therein detailed, but in which he advised the men that they were free to join the union; that this would not affect their position and that the company would continue to afford the right to work to qualified seamen whether or not they joined or did not join a labor union. The Ferbert letters contain no threats or suggestion of coercion and on their face seem clearly to be within the right of an employer to express his views upon labor relations, — a right found, in many cases, to be within the protection of the constitutional right of free speech. The trial examiner found them of sinister character designed to discredit the union and its objectives, mainly because of alleged inaccuracies in respect to the effect of the "rotary hiring" practices of the union and the extent of government control over wage changes exercised by the War Labor Board. We have not heretofore thought that the right of free speech depends upon the accuracy of the ideas expressed. N. L. R. B. v. Brown-Brockmeyer Co., 6 Cir., 143 F.2d 537. However, it becomes unnecessary for us to give detailed consideration to whether the letters themselves were in any respect coercive because of the Board's finding that they were not unlawful per se, but became so only because they constituted an integral and inseparable part of the petitioner's otherwise illegal course of conduct, and when so viewed, assumed a coercive character not privileged by the right of free speech. It becomes necessary, therefore, to give primary consideration to the alleged acts held to form the background against which the letters must be viewed in order to determine the validity of the Board's order.
Other than its finding in respect to the Ferbert letters and a specific finding that Shartle had been discharged for union activities, the Board made no independent findings of fact but adopted the findings, conclusions and recommendations of the trial examiner in what is referred to as its "short-form" order. It therein issued its cease and desist directives requiring the petitioner to refrain from discouraging membership in the union, by discharging or refusing to reinstate any of its employees, by discriminating in regard to their hire and tenure of employment, or in any other manner interfering with their right of self-organization, or their right to bargain collectively and to take affirmative action which included the reinstatement of Shartle to his former or an equivalent position, to make him whole for his loss of pay and to post the usual notices.
Its order is vigorously attacked by the petitioner on the ground that § 10(c) of the National Labor Relations Act, 29 U.S.C. A. § 160(c), requires the Board itself to find the facts upon which its orders are based, and to state them as found. This, it is urged, is a non-delegable duty of the Board and the petitioner had a right to look to the decision itself for findings upon which the order is based in respect to every material issue. It further points to the fact that the transcript consisted of approximately 1,350 pages, that 1½ months intervened between the oral argument to the Board and the announcement of its decision and that it must be apparent from the length and complexity of the record, that only lip service was rendered to the statutory requirement that the Board itself find the facts. It characterizes pro forma acceptance as an evil inherent in a "rubber stamp" approval by administrative agencies of a subordinate's work — strongly condemned by the Supreme Court of New York. New York State Relations Board v. Grief Realty Corp., 188 Miss. 549, 70 N.Y.S. 288, and urges that Federal Courts of Appeals have taken the same view. N. L. R. B. v. Elkland Leather Co., 3 Cir., 114 F.2d 221; Burk Bros. v. N. L. R. B., 3 Cir., 117 F.2d 686. Finally, it insists that due process requires not merely a...
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