Petition for Enforcement of an Order of the National Labor Relations Board.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
This order was the result of occurrences which grew out of a largely successful attempt of the National Maritime Union of America, a labor organization affiliated with the Committee for Industrial Organization, to take into its membership the unlicensed members of the crew of the respondent's S. S. Steel Scientist who were members of the International Seamen's Union of America, a labor organization affiliated with the American Federation of Labor, with which the respondent had a preferential hiring agreement.
While the S. S. Steel Scientist was at Norfolk, Va., early in August 1937 to discharge part of a cargo from the Orient, all but two of the unlicensed members of her crew transferred their union affiliation from the I.S.U. to the N.M.U. The vessel afterwards went to Baltimore, Md., to discharge the remainder of her cargo and to be then fumigated. On August 12, 1937, while the vessel was at Baltimore, Flynn, a representative of the respondent, notified the Baltimore delegate of the I.S.U., Reese, that a fireman was needed on the ship to replace one who was leaving. That union sent a fireman to the vessel but the crew, upon learning that he was a member of the I.S.U. refused to let him work, and early on the morning of August 13, 1927 the fireman so reported to Reese who informed Flynn of that fact and warned him that the I.S.U. expected the respondent to comply with its preferential hiring contract. Flynn reported the situation to the respondent's director of labor relations in New York, Jump, and was told to report the trouble to two named agents of the I.S.U. and let them investigate. The ship was due to sail for Portland, Me., that evening and the director of labor relations told Flynn to let him know ehen it sailed.
It was after this that the respondent, as found by the Board, violated the Act by discriminating against certain members of the crew in regard to their hire and tenure of employment because of their union membership in violation of § 8 of the Act, 29 U.S.C.A. § 158. Decision, in the main, must turn upon whether or not there was substantial evidence to support that finding.
In this connection it must first be noticed that the respondent has bitterly objected to the record on the ground that it is not accurate and there is, indeed, much to indicate that in fact it is not. We have, however, been compelled to deny two motions the respondent has made to secure its correction because of a stipulation that it might be used as the basis of the Board's decision and the present attack upon it must meet the same fate because our power to deal with the record, as otherwise we might, is so curtailed.
Accepting the record as it is, we are convinced that it does show that the respondent's representatives did violate the Act as found by the Board though it must be owned that the fight between the rival unions for membership put the respondent in the equivocal position which led to that result.
After Flynn at Baltimore got in touch with the agents of the I.S.U. as he had been told to do, one of them informed him that if the respondent did not discharge the N.M.U. members of the crew of the Steel Scientist the I.S.U. would call a strike on every vessel of the respondent which docked at Baltimore. Flynn asked the agent if he would supply a new crew for the vessel and the agent told him the I.S.U. could and would do that. He, the agent, also informed Flynn that the N.M.U. members must leave the ship and that he, not Flynn, would have them removed. Flynn reported to Jump in New York who said, "all right; let the Union [the I.S.U.] handle the thing, but we have got to get the ship going; * * * that is a question for the I.S.U. to handle; we are going to live up to our agreement. Now, the next move is up to the I.S.U. It is up to them. The agreement is very clear and we have got to live up to it and that is all there is to it."
Meanwhile the ship was being fumigated and the crew had left with instructions to return early in the afternoon. They came back to the dock about two o'clock that afternoon but, because of the fumigation, could not then go aboard and were paid while on the dock. This payment of their wages at Baltimore was in accord with the respondent's usual practice and after it was done the crew went aboard. About ten minutes later the crew was ordered to assemble at the No. 3 hatch and was there addressed by Captain Marcosson of the vessel in the presence of Reese. He told the men that he had received word from New York that if they didn't transfer their membership from the N.M.U. to the I.S.U. they would be put off the ship and further said that most of the men had sailed with him for some time; that he was well satisfied with their work and would regret their going but that he had to follow the orders he had received from the respondent. An oiler who had joined the N.M.U. then asked, "Do I understand, Captain, that you are firing us for being N.M.U. men?" Marcosson replied, "Yes, that is what it looks like, son."
Reese then urged the crew to resume membership in the I.S.U. saying in part, "You fellows can change your books back. I have books right here with me. There won't be any argument, and we will give you your I.S.U. book, and you can sail with your I.S.U. books." He also told them the change could be made without charge but none accepted his proposal, though the matter was discussed. After that the crew received no orders to work and did none but remained in and about their quarters until about ten o'clock that evening. Then a group of volunteers from the I.S.U. boarded the vessel and ordered all of the N.M.U. members of the crew to leave. They took their belongings and left without resistance; were replaced by a crew of I.S.U. members who were then hired; and the ship sailed for Portland, Me., with the new crew at about two o'clock in the morning of August 14, 1937. The ship's officers had remained indifferent while the members of the N.M.U. were being removed from the ship.
These facts as found by the Board were in accord with substantial evidence and show that the respondent acquiesced in the removal of the N.M.U. men. When they returned to the ship after being paid off that afternoon they were still members of the crew and the respondent's acquiescence in their ejection from the ship and the hiring of men to replace them amounted to their discharge. Clover Fork Coal Co. v. National Labor Relations Board, 6 Cir., 97 F.2d 331; National Labor Relations Board v. J. Greenebaum Tanning Co., 7 Cir., 110 F.2d 984.
There was some disputed evidence that the discharged members of the crew engaged in a sit-down strike that afternoon but the Board found that they did not and as there was substantial evidential support for the finding we are bound by it.
Nor did the preferential hiring contract give the respondent the right to hire the new crew as it did. That merely provided in this respect that, "It is understood and agreed that, as vacancies occur, members of the International Seamen's Union of America, * * * shall be given preference of employment, if they can satisfactorily qualify to fill the respective positions; provided, however, that this Section shall not be construed to require the discharge of any ...