Texas Co. v. National Labor Relations Board

• Decision Date: 23 May 1941
• Docket Number: No. 9518.,9518.
• Citation: 120 F.2d 186
• Parties: TEXAS CO. v. NATIONAL LABOR RELATIONS BOARD (NATIONAL MARITIME UNION OF AMERICA, Intervener).
• Court: U.S. Court of Appeals — Ninth Circuit

120 F.2d 186 (1941)

TEXAS CO. v. NATIONAL LABOR RELATIONS BOARD (NATIONAL MARITIME UNION OF AMERICA, Intervener).

No. 9518.

Circuit Court of Appeals, Ninth Circuit.

May 23, 1941.

Albert E. Van Dusen, of New York City, J. A. McNair, of Los Angeles, Cal., and James H. Pipkin, of Houston, Tex., for petitioner.

Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, Frederick M. Davenport, Jr., and Edward J. Creswell, Attys. National Labor Relations Board, all of Washington, D. C., for respondent.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

Petitioner, owning and operating a fleet of ocean going gasoline and oil tankers, admittedly engaged in interstate and foreign commerce, petitions to have set aside an order of the National Labor Relations Board (a) ordering petitioner to cease and desist from the unfair labor practice of discouraging the organization of its crew employees from collective bargaining; (b) ordering the payment of back pay to one seaman and the reinstatement with back pay of another, found by the Board to have been discharged because of their activities as representatives of the crew in attempted collective bargaining with their captains; and (c) ordering the posting of cease and desist notices on all its vessels. The Board cross-petitions for a decree enforcing its order.

Concerning the discharge of the two seamen, we consider the proceeding before the Board as conducted with a complete disregard of the body of Congressional safety legislation for the manning, navigation and management of vessels created to protect the lives of the members of the crew. The particular statutes here applicable are later considered, but the titles for the continued enactments for the last 75 years regulating officers and seamen of merchant vessels proclaim the primary purpose of Congress to be the "better Security of Life on board of Vessels," etc., "the better protection of life," "to promote safety at sea," "the further protection of Seamen" and "for the protection of such seamen."¹

The Board here seeks to have us hold that the captain of the ocean going steamer "Nevada" should have retained on his ship as boatswain, the general superintendent over the crew (under the licensed officers), one Buckless, a habitual drunkard, who had been elected one of the "Nevada's" labor leaders. The Board would have us hold this, although the Board itself holds in the same proceeding that Buckless' habitual drunkenness warranted his discharge from the steamer "Washington" less than two months after his discharge from the "Nevada."

The testimony of the "Nevada's" officers of Buckless' drunken habits was uncontradicted and the Board finds that "the evidence does not entirely support" Buckless' denial that his drunkenness interfered with the performance of his duties in superintending the sailors. Instead of giving the officers' testimony the consideration required by the principles stated in Peninsula & Occidental S. S. Co. v. N. L. R. B., 5 Cir., 98 F.2d 411, 414, certiorari denied 305 U. S. 653, 59 S.Ct. 248, 83 L.Ed. 423, apparently no consideration was had of the concept that a ship's captain should eliminate a habitually drunken seaman before his conduct could endanger all on board.

The duties and obligations of the master of the ship in making up and controlling his crew cannot be determined by the study of the management of, say, a great automobile factory. An automobile factory is not a moving mass of steel floating in the ocean, whose propulsion must be controlled by instant intelligent co-operation of commander and his seamen and engineers while driven through a storm or the obscuration of rain, fog or smoke in heavily traveled shipping lanes or in approaching and passing through narrow channels with cross tidal and river currents, or, as for four years from 1914 to 1918 in the Great War, in the zigzag maneuvers of a convoy, or, steaming alone, in avoiding a submarine or dodging a torpedo, — the latter situations not beyond the reasonable contemplation of the Board at the time of the writing of its briefs and of its argument.

Nor is the psychology of the workers in a mill, living in their comfortable homes with their families and with diversions of modern town life, the gauge for the seaman's mind, living in necessarily cramped quarters, though vastly improved now through the pressure of their labor organizations, having 16 hours unoccupied time between watches, without the recreations and diversions which come to men living ashore.

In the life of factory workers are no such dangers as require a maximum of ten years penal servitude for one who by force, fraud or intimidation resists or prevents the master in the free and lawful exercise of his authority,² nor is there need for a maximum two year sentence for assaulting a mill superintendent as there is for assaulting a ship's officer,³ nor for giving a mill superintendent authority to place his employees in irons on bread and water, with full rations only on every fifth day, for continued wilful disobedience of lawful commands or neglect of duty at sea.⁴ The mill manager fires such employees outside the yard gates. The master must have the power to compel the services of such men for the safety of all on board. This distinction between the two employments is the basis of the holding of the Fourth Circuit in Rees v. United States, 95 F.2d 784, 792.

In our opinion the Board has erred in failing to recognize that these maritime safety laws are paramount to the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., wherever the Board's proposed orders may increase the danger which the long established safety legislation of Congress seeks to prevent or lessen.⁵

It needs but an extreme illustration to make clear our views of the supremacy of the maritime safety laws to those not familiar (as the Board here appears) with the universal hazards of navigation, and particularly in this case, in the management, in port and at sea, of vessels carrying highly explosive and inflammable cargoes of gasoline and oil. Unlike general cargo vessels, the tanker is subject to the dangers of her peculiar cargo in port as well as at sea. In some respects that menace is heightened in loading and discharging.

Take, for such illustration, the situation of any steamer just leaving dock, at dusk and in hazy weather, to traverse a harbor crowded with moving vessels. There the highest vigilance is required of the lookouts in the bow to warn of the presence and movements of other vessels, the smartest and most concentrated attention of the helmsman to orders for immediate change of course and of the sailor or officer telegraphing the orders to the engine room for a change of speed or a reverse. If at that moment the two elected representatives of the vessel's labor organization should make a vigorous and disturbing appeal to the lookout, helmsman and man at the engine room telegraph to demand the righting of some claimed wrong in the treatment of the crew, it is apparent that because the two men are labor organizers there is the greater reason for their discharge the moment the safety of the vessel permits. Their organizing power and the prestige of their representative position make their appeal for the righting of grievances, at such a time, the greater menace to the lives of the crew they represent.

If a seaman without the power and prestige of such union authority were to start such a discussion at such a time he probably would be told in seamen's vernacular to "get the hell out of here" and no harm be done. Quite likely in the discipline of the ship, her captain would give such an intruder no more than a vigorous tongue lashing. However, the captain properly would be deprived of his license by the Inspectors in the course of the Congressionally created proceedings⁶ following a collision and a sinking and drowning of some of the sailors caused by such distracting interference of the labor leaders, if he failed to discharge them and log them as discharged, because of the abuse of their power as such leaders. And this, although the abused power is one the proper exercise of which is protected by the National Labor Relations Act.

It may be said that the above is an occurrence too remote in likelihood to be of illustrative value. To be sure, sober-minded men so would not risk their own lives and those of their mates. But is such a situation unlikely with a labor agitator who is a habitual drunkard and who is shown, by uncontradicted testimony, repeatedly to have boarded his vessel in various intensities of intoxication? In this proceeding it is of outstanding importance that the Board was dealing with a hundred percent labor crew furnished the Texas Company by a C. I. O. union, in which crew, the Board's brief admits, there was "repeated drunkenness" from the drinking which was "especially prevalent."

Indeed, from the condition which the Board found on the "Nevada", it would be over straining human self-control if some of its officers contemplating the command of the vessel in dangerous emergency, with the admitted combination of the unionization of his vessel and the drunkenness of his crew, which had elected a confirmed drunkard as their labor leader, did not sometimes think what one of them said: "Just a minute, there is one thing I want to tell you we don't allow on this ship, and that is getting drunk, missing watches, and we don't allow any agitation with the crew on this union business."⁷ The question here is whether a ship's captain is deprived of the power to make his ship safe for all the lives entrusted to his care by discharging a drunken boatswain con amore because he is a drunken labor leader.

It requires no straining of judicial notice to realize the position of the labor leaders of...