Southern SS Co. v. National Labor Relations Board, 7435.

• Decision Date: 06 May 1941
• Docket Number: No. 7435.,7435.
• Parties: SOUTHERN S. S. CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Third Circuit

120 F.2d 505 (1941)

SOUTHERN S. S. CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 7435.

Circuit Court of Appeals, Third Circuit.

May 6, 1941.

Joseph W. Henderson and Randolph W. Childs, both of Philadelphia, Pa. (Adams, Childs, McKaig & Lukens and Rawle & Henderson, all of Philadelphia, Pa., on the brief), for petitioner.

Thomas I. Emerson, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Samuel Edes and Louis Libbin, National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before BIGGS, MARIS, CLARK, JONES, and GOODRICH, Circuit Judges.

MARIS, Circuit Judge.

This is a petition by the Southern Steamship Company to review and set aside an order of the National Labor Relations Board directing the company to cease and desist from certain unfair labor practices in which the Board found it had engaged, to bargain collectively with the National Maritime Union of America as the exclusive representative of a specified unit of its employees, to offer reinstatement with back pay to five employees discriminatorily discharged, and, upon application to reinstate certain striking employees.

Following a hearing upon a petition to certify collective bargaining representatives the Board on July 16, 1937, directed an election to be held by a unit of the company's employees consisting of the unlicensed personnel employed in the deck, engine and stewards' departments on vessels operated out of Atlantic and Gulf ports, except wireless and radio operators, chief electricians on electrically driven ships, and junior engineers who hold licenses. The election was held on the company's seven vessels in October, 1937, and disclosed a majority in favor of the National Maritime Union of America. On January 26, 1938, the Board certified the Union as the exclusive bargaining representative of the employees in the unit mentioned.

Shortly after January 26, 1938, and at various times thereafter officers of the Union sought to arrange collective bargaining conferences with the company. The company, however, at all times refused to bargain with them. This it admits, although it denies that any effort was made by the Union to open negotiations prior to August 18, 1938. The Board, however, found upon substantial evidence that such efforts were made as early as the end of January or the beginning of February, 1938.

In defense of its refusal to engage in collective bargaining with the Union the company contends that the designation of the Union was invalid because the election was improperly conducted. Its complaint is that the Board at the election held on the first of its vessels refused, in the absence of consent of the labor organizations involved, to permit the company's representatives to be present to identify voters and to see that the election was properly conducted. At the elections held on the six other vessels such consent was given and the company's representatives were present.

A certification proceeding is of a nonadversary, fact-finding character in which the Board plays the part of a disinterested investigator seeking merely to ascertain the desires of the employees as to their representation. Section 9(c) of the National Labor Relations Act, 29 U.S.C.A. § 159(c), confers a wide discretion upon the Board as to the manner in which this investigation shall be made. The Board may take a secret ballot of employees or utilize any other suitable method. It may, of course, call upon representatives of the employer to assist it in identifying employees appearing to vote. On the other hand it may take the view, as it evidently did in this instance, that since the presence of such representatives, unless consented to, might operate in some degree to coerce the employees and prevent them from expressing their free choice, some other means of identifying voters should be employed. The act confers no right upon the employer to have its representatives present and it is obvious that their presence is not essential to a fair election. Indeed it is not contended in the present instance that any person voted who was not entitled to do so, or that the election was conducted unfairly. The action of the Board in excluding the company's representatives was accordingly within its discretionary power. Marlin-Rockwell Corporation v. National Labor Relations Board, 2 Cir., 116 F.2d 586.

It follows that the company was guilty of an unfair labor practice in refusing to bargain with the Union as the chosen representative of its employees and that the Board rightly ordered the company to cease and desist from this unfair labor practice and, upon request, to bargain collectively with the Union as the exclusive representative of its employees included in the bargaining unit already described.

On July 17, 1938, one of the company's vessels, the City of Fort Worth, was at dock at Houston, Texas, in the course of a voyage from Philadelphia to Houston and return. On that day thirteen unlicensed seamen of the vessel met at the union hall in Houston to find out what had been accomplished by way of obtaining a bargaining conference with the company and passes enabling Union delegates to board its ships when in port. Upon being informed of the company's refusal to meet or bargain with the Union the men unanimously voted to go on strike the following day in order to compel the company to recognize the Union and issue boarding passes to its delegates.

At 8 o'clock A. M. on the next day, July 18th, while the vessel was moored to the dock at Houston, the strike was begun when Tracey, an oiler, failed to turn the steam "on deck" for the purpose of loading cargo. Pool, the first assistant engineer, discovered the failure of steam and was told by Tracey that the ship's unlicensed personnel was on strike for Union recognition and the issuance of boarding passes. Pool then said that he would put the steam on deck himself, and Tracey replied that in that case he would "have to take the firemen out of the fire room." When Pool turned the steam on, Tracey called upon the fireman on duty, Braun, a member of the Union, to join the strike, which he did. At this time Ferguson, a fireman, appeared to relieve Braun whose watch had ended. But Ferguson, who was also a Union member, refused to tend the fires and he and Braun promptly left to join the eleven other strikers who were seated on the poop deck, the general meeting place of the seamen when off duty. The second assistant engineer immediately took over the care of the fires and the ship's officers, with the assistance of the six unlicensed seamen who did not join the strike, then proceeded with the necessary operations for the loading of cargo.

At about 10:30 o'clock A. M. the ship's master, Captain Rudan, came on board. He at once informed the strikers that their conduct was in violation of the ship's articles which they had signed, and ordered them individually and collectively, to "turn to", which they each and all refused to do, Warren, their spokesman, telling him that they were striking for Union recognition and boarding passes. Captain Rudan then brought aboard a deputy United States Shipping Commissioner who informed the strikers that according to their articles they had agreed "to be obedient to the lawful commands of the master" and warned them that they were "subject to being logged two days for one" for not obeying orders. The men, however, refused to abandon the strike. Throughout the day they remained seated on the poop deck in an orderly manner. At no time were they ordered to leave the vessel; on the contrary they were in regular course, served their midday meal by one of their own number, Smith, a mess boy.

Late in the same afternoon, the company's local attorney, after telephoning its superintendent at Philadelphia, advised the Union's attorney that if the strike were called off he would recommend that the company issue boarding passes to the Union's shore delegates, action concededly tantamount to Union recognition. Relying upon this promise the Union's attorney advised the men to terminate the strike which they did at 7 o'clock P. M. and resumed their stations. Finding the foregoing facts upon virtually undisputed evidence, the Board properly concluded that the strike was caused by the company's unfair labor practice in refusing to recognize and bargain with the Union.

The strikers having resumed their duties with the approval and consent of Captain Rudan and the other officers, the ship sailed on schedule the same night. During the return voyage to Philadelphia they performed their duties satisfactorily. Nevertheless Captain Rudan, after consulting the ship's officers, decided not to reship five of the strikers, Warren, Tracey, Ferguson, Pfuhl and Smith. Accordingly when the vessel docked at Philadelphia on July 25th and the crew signed off the shipping articles, these five men were informed that they would not be reshipped. During the return voyage the Union members of the crew had decided to strike if any one of their number were to be discharged upon arrival at Philadelphia. Accordingly when the other Union members of the crew learned of the discharge of their five fellow members, seven of them, Crassavaz, Reeves, Latham, Burns, Hughes, Neeley and Holt, left the ship in protest. One of them, Crassavaz, subsequently reshipped.

The Board found that the five seamen were discharged because of their active participation in the strike of July 18th, that their discharge constituted a violation of the act, and that it was because of their unlawful discharge that the seven other seamen went out on strike on July 25th. The Board accordingly ordered the company to offer reinstatement with back pay to the five seamen who were discharged and, upon application, to offer reinstatement to the seamen who went out on strike on July 25th. The company strongly urges that the order should be set...