1. Certiorari granted to determine whether there was substantial
evidence to sustain an order of the National Labor Relations Board
which the court below declined to enforce as based on mere
suspicion. Pp.
309 U. S.
207-209.
2. The requirement of the Act that "The findings of the Board,
as to the facts, if supported by evidence, shall . . . be
conclusive," must be scrupulously obeyed by the courts. P.
309 U. S.
208.
3. An employer-employee relationship within the scope of the
National Labor Relations Act may subsist through mutual
understanding between the owner of a vessel and members of its crew
after its return from a foreign voyage and after the crew,
appearing with the master before a shipping commissioner, have been
paid off and "discharged" and have executed with the master a
mutual release of "all claims for wages in respect of past voyage
or engagement," as provided by 46 U.S.C. §§ 564, 641, 644. P.
309 U. S.
211.
4. A contract between an employer and a labor union for
preferential treatment of the latter in filling vacancies
held not to require the former to discharge employees
because of their having joined another union. P.
309 U. S.
213.
5. In forbidding an employer to terminate an employee's tenure
of employment or any term or condition of employment because of
union activity or affiliation, § 8(1)(3) of the Labor Act embraces
all elements of the employment relationship which in fact
customarily attend employment and with respect to which an
employer's discrimination may as readily be the means of
interfering with employees' right of self-organization as if these
elements were precise terms of a written contract of employment. P.
309 U. S.
218.
Page 309 U. S. 207
6. For the purpose of the Act, it is immaterial that employment
is at will, and terminable at any time by either party. P.
309 U. S.
219.
7. There was substantial evidence to support the findings of the
Board:
(1) That, by custom recognized by the respondent ship company,
crews of ships returned from abroad, notwithstanding expiration of
their shipping articles, have, unless discharged for cause, a
continuing tenure or relationship with their employer entitling
them to resign for future voyages. P.
309 U. S.
213.
(2) That the employment or "tenure" of crews and of two licensed
officers was terminated because of their affiliations with a union
other than that with which the employer had made a preferential
contract. P.
309 U. S.
220.
(3) That, pending an election directed by the Board to permit
the ships' crews to select their bargaining agencies, the employer
had interfered with its employees' free right to elect a union of
their own choosing under § 7 of the Act by refusing to grant ships'
passes to representatives of the rival union, while at the same
time issuing passes to representatives of the union having the
preferential contract. P.
309 U. S.
224.
103 F.2d 157 reversed.
Certiorari, 308 U.S. 534, to review a decision declining to
enforce an order of the National Labor Relations Board and setting
it aside.
MR. JUSTICE BLACK delivered the opinion of the Court.
The Court below, upon petition of respondent to set aside an
order of the Labor Board, decided that the Board's order was not
supported by substantial evidence, said the order was based on mere
suspicion, and declined
Page 309 U. S. 208
to enforce it. Whether the court properly reached that
conclusion is the single question here.
We do not ordinarily grant certiorari to review judgments based
solely on questions of fact. In its petition, however, the Board
earnestly contended that the record before the Court of Appeals had
presented "clear and overwhelming proof" that the Waterman
Steamship Company had been guilty of a most flagrant mass
discrimination against its employees in violation of the National
Labor Relations Act, and that the court had unwarrantedly
interfered with the exclusive jurisdiction granted the Board by
Congress. The Board's petition also charged that the present was
one of a series of decisions in which the court below had failed
"to give effect to the provisions of the Act that the findings of
the Board as to facts, if supported by evidence, shall be
conclusive." [
Footnote 1]
In that Act, Congress provided, "The findings of the Board as to
the facts, if supported by evidence, shall be conclusive."
[
Footnote 2] It is of paramount
importance that courts not encroach upon this exclusive power of
the Board if effect is to be given the intention of Congress to
apply an orderly, informed and specialized procedure to the complex
administrative problems arising in the solution of industrial
disputes. As it did in setting up other administrative bodies,
Congress has left questions of law which arise before the Board --
but not more -- ultimately to the traditional review of the
judiciary. Not by accident, but in line with a general policy,
Congress has
Page 309 U. S. 209
deemed it wise to entrust the finding of facts to these
specialized agencies. It is essential that courts regard this
division of responsibility which Congress, as a matter of policy,
has embodied in the very statute from which the Court of Appeals
derived its jurisdiction to act. And therefore charges by public
agencies constitutionally created -- such as the Board -- that
their duly conferred jurisdiction has been invaded so that their
statutory duties cannot be effectively fulfilled raise questions of
high importance. For this reason, we granted certiorari. [
Footnote 3]
Respondent, Waterman Steamship Company, of Mobile, Alabama, is
engaged in maritime transportation between this country, Europe,
and the West Indies. Upon complaint made by the National Maritime
Union, a labor organization affiliated with the Committee for
Industrial Organization, the Board held hearings and found that
respondent had, at Mobile, laid up the ships "Bienville" (27 days)
and "Fairland" (7 days) for dry-docking and repairs, and had, in
violation of the National Labor Relations Act:
(a) discharged and refused to reinstate, because of membership
in the NMU, the entire unlicensed crew and the chief steward,
Edmund J. Pelletier, of the Steamship "Bienville," and all but
three of the crew of the Steamship "Fairland;"
(b) discharged and refused to reinstate C.J. O'Conner, second
assistant engineer of the "Azalea City" because of his activities
in representing aggrieved members of the Marine Engineers
Beneficial Association, a labor organization of licensed ship
personnel affiliated with the CIO;
(c) and, pending an election directed by the Board to permit the
ships' crews to select their bargaining agencies,
Page 309 U. S. 210
had interfered with its employees' free right to select a union
of their own choosing under Section 7 of the Act by refusing to
grant ships' passes to representatives of the CIO affiliate, while
at the same time issuing passes to representatives of the
International Seaman's Union affiliated with the American
Federation of Labor. [
Footnote
4]
The Board's order in question was based on the foregoing
findings.
A clear understanding of the issues presented by the mass
discharge of the crews of the "Bienville" and the "Fairland"
necessitates initial reference to the Federal laws governing
engagement of seamen for foreign voyages. There is provision, 46
U.S.C. § 564, that a master of any vessel bound from the United
States to foreign ports (with exceptions not pertinent)
"shall, before he proceeds on such voyage, make an agreement, in
writing or in print, with every seaman whom he carries to sea as
one of the crew. . . ."
This written agreement, commonly referred to in maritime circles
as articles, must specify the nature and duration of the intended
voyage or engagement; the port or country at which the voyage will
terminate; the number and description of the crew and their
employments; the time each seaman must be on board to begin work
and the capacity in which he is to serve; wages; provisions to be
furnished each seaman; regulations to which the seaman will be
subjected on board such as fines, short allowance of provisions, or
other
Page 309 U. S. 211
lawful punishments for misconduct, and stipulations of any
advance and allotment of the seaman's wages. And the provisions of
46 U.S.C. §§ 567, 568, impose penalties for carrying seamen in
ships' crews on foreign voyages without entering into the required
articles. All seamen
"discharged in the United States from merchant vessels engaged
in voyages . . . to any foreign port . . . shall be discharged and
receive their wages in the presence of a duly authorized shipping
commissioner. . . ."
Id., § 641. The master and each seaman shall "in the
presence of the shipping commissioner, . . . sign a mutual release
of all claims for wages in respect of the past voyage or
engagement;" the release must be recorded in a book which shall be
kept by the commissioner, and such release
"shall operate as a mutual discharge and settlement of all
demands for wages between the parties . . on account of wages, in
respect of the
past voyage or engagement."
Id., § 644. (Italics supplied.)
Respondent, the Waterman Company, has taken the position that,
when the crews of the "Bienville" and "Fairland" received their
wages and signed off statutory articles in Mobile, all tenure of
employment and employment relationship of these men were at an end.
From this premise, the Company insists that vacancies were created
as the men signed off and, under an outstanding contract with the
ISU, preference in filling these vacancies had to be given to
members of the ISU unless contractual obligations were to be
violated. [
Footnote 5]
However,
Page 309 U. S. 212
the Board contends that the signing off of articles when the
ship's voyage ended at Mobile served only to end employment "in
respect of the past voyage or engagement," and therefore it
proceeded to examine the evidence to determine whether there was,
after completion of the voyages in question of the "Bienville" and
"Fairland," a continuing relationship, tenure, term or condition of
employment between the Company and its men. The Act provides
[
Footnote 6] that
"It shall be an unfair labor practice for an employer --"
"(1) To interfere with . . . [the employees' right of
self-organization]. . . ."
"
* * * *"
"By discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization. . . ."
The protection to seamen embodied in the Federal statutes which
have been referred to has existed in some form since the earliest
days of the Nation. [
Footnote
7] This statutory plan was never intended to forbid the parties
from mutually undertaking to assure a crew the right to continue as
employees and to resign if it desires after signing off articles at
a voyage's end. The design was to protect seamen from being carried
to sea against their will; to prevent mistreatment as to wages, and
to assure against harsh application of the iron law of the sea
during voyages. [
Footnote 8]
The Board therefore properly heard evidence
Page 309 U. S. 213
as to whether the crews of the "Bienville" and "Fairland" had,
unless discharged for cause, a continuing tenure or relationship
entitling them to resign when the temporary lay-ups of their ships
ended. If, as the Board found, there were such continuing tenure
and customary term or condition of employment, of course, no
vacancies occurred when the men of the "Bienville" and the
"Fairland" signed off articles in Mobile. And respondent's contract
with the ISU, which only provided preferential treatment of the ISU
(AFL) in filling vacancies, did not require the Company to
discharge the NMU (CIO) men from these ships.
If, therefore, there was substantial support in the evidence for
the findings that these crews had a continuing right to and
customary tenure, term, or condition of employment within the
purview of the Act even though their ships were temporarily laid
up, and that this relationship was terminated by the Company
because of the crews' CIO affiliation, the court below was required
to enforce the Board's order.
Evidence as to the continuing tenure, and conditions, and
relation of employment. On the basis of nine to ten years at
sea, one witness testified that a ship's crew is customarily kept
on when she goes into dry-dock and is laid up for temporary
repairs, and that both the Waterman Company and the unions had
observed that custom. Another, with a background of ten years
experience at sea, in visiting some fifty ships in dry-dock at
Mobile during the preceding few months had learned of forty-nine
which had not laid off their entire crews but had kept a
substantial number of their crews working aboard ships; the
fiftieth had laid off its entire crew after going into dry-dock,
but "the company kept the jobs open." He knew
Page 309 U. S. 214
of one vessel that had remained "in dry-dock for a period of
forty-five days and maintained its crew during that period,"
several which had done so recently for thirty-day periods, and many
for periods "from five to ten days, fifteen days." He had himself
been a member of a crew maintained in its entirety while his ship
was in dry-dock for twenty-two days.
An oiler and deck engineer with eight years in the service had
been on a Waterman ship which, as recently as 1936, spent six days
in repairs, keeping its crew on, and had "known them to stay on
fifteen or twenty days and continue working that long." Asked what
obligation an employer owes a sailor after the latter returns from
a foreign voyage, completes his contract under the ship's articles,
is paid off and discharged before a Shipping Commissioner, he
answered
"If my services are satisfactory and my work efficient, I have
the right to stay on that ship, if I have not done anything to be
discharged for. Why shouldn't I make another trip? . . ."
"Q. Is it true to state that a seaman's job is still existent,
although he may not be drawing pay while the boat is tied up for
repairs?"
"A. Yes, sir."
"Q. There is no vacancy in his job?"
"A. No; there is no vacancy."
The chief steward of the "Bienville," employed by Waterman since
1934 and a seaman since 1918, testified that crews of ships in
dry-dock -- tied up for repairs for a few days -- "have to do their
work and get paid for it by the Waterman Steamship Corporation,"
and, unless they quit or are fired "for cause," there is no
vacancy. The giving of a discharge according to the ship's
articles, he understood "to be a termination of the voyage, but not
a termination of the employment."
Although at sea but three years, a fireman and oiler testified
that he had been re-signed, upon the termination of articles, after
each of fourteen trips on a single ship, from Southern ports
including Mobile, had been kept as
Page 309 U. S. 215
a member of a crew on a ship in for repairs nine days and had
"known of one ship that was laid up [for lack of cargo] for five
weeks, and the crew went back."
A marine fireman, oiler, and watertender at sea since 1922 had
been on a Waterman ship in for repairs ten or twelve days, the crew
of which was retained only in part, but those laid off "were
notified when the ship went into commission, they can go out
again." He
"was on one [ship] that stayed two months in dry-dock . . . just
part of the crew . . . [were kept on, but] the whole crew was there
for their jobs when she was commissioned again."
He had never heard of a mass discharge of an entire crew such as
occurred on the "Bienville" and "Fairland." In part, the testimony
of this former ISU member was:
"Q. Do the unions consider that there is no vacancy until a man
resigns?"
"A. Yes; they do not figure it is any vacancy until they call
the [Union] Hall for another man."
A seaman in the employ of the Waterman Company intermittently
since 1924 had been on a Waterman boat which kept its whole crew
during six or seven days in dry-dock. It had been his experience
that a crew was kept on ships in dry-dock or being repaired, unless
a ship was to be laid up indefinitely --
i.e., for two or
three months -- in which event only a skeleton crew would be
maintained. But, he added, the Waterman Company itself follows the
custom of "calling back to the ship" men who have been laid off
indefinitely and "are still around," and men standing idly by
without pay at the end of a voyage still regard themselves in the
employ of the shipowner.
One witness had served as a fireman on a Waterman ship that
spent the period between the first of November and Thanksgiving of
1932 in dry-dock and undergoing repairs; she kept "approximately
all of" her crew aboard ship working during this period; a few were
permitted to go home in the interim, but returned when she
started
Page 309 U. S. 216
her voyage. On another occasion, he testified, the same Waterman
boat stayed in dry-dock about sixty days, retaining approximately
the entire crew; although, after five days in dry-dock, he was
called out of town to appear as a witness, he later got his job
back. In his capacity as a shipyard worker in which he was employed
at Mobile at the time of this hearing, this same witness
observed:
"we have boats coming in from twenty-five up to thirty days . .
. , and the crew works in there, and they may want to lay off part
of the crew, or work a major part, or maybe they will be
discharged, but those that want to go back, their jobs is open if
they wish them."
Of some six hundred ships he had seen or worked on in dry-dock
or being repaired, he had seen but one complete discharge of an
entire crew, but even that crew were told they could come back "if
they wanted their jobs." According to his understanding and that of
seamen as he knew it, articles
"were protection to the seamen by the United States Government
for a certain voyage, and to a certain port, or your final port of
discharge or first loading port. That is a termination of the
articles to the seaman, but not the end of the employment."
A witness who had worked for the Waterman Company since 1929,
who had been a marine engineer for fourteen years, and at sea
twenty years, testified that a crew which is laid off is
customarily reemployed when a ship emerges from dry-dock, unless
laid off "for cause." A Waterman ship on which he had been at the
time serving laid up in Mobile from December, 1936, to about
January 25, 1937, "and the engineers were kept on her, and to the
best of my knowledge the firemen and watertenders and oilers were
kept on there."
The executive vice-president of the Waterman Company recalled
that recently the crew of only one other vessel going in for
repairs had been discharged, and that this particular crew also had
been affiliated with the
Page 309 U. S. 217
NMU (CIO). Of the several Waterman vessels which he mentioned as
having been put up in Mobile for dry-docking or repairs during the
previous year, he could note only the one that had not kept its
entire crew (other than the "Bienville" and "Fairland"); the one
other crew that was discharged
en masse, he admitted, was
the one other also affiliated with the CIO
The witness who had been captain of the "Fairland" when she went
into dry-dock had served the Waterman Company continuously since
1924, with the exception of one year, in capacities ranging from
ordinary seaman to ship's master. Yet, in all his experience with
the Company, he had never heard of a ship in dry-dock that had laid
off her entire crew. And Waterman's port captain, a veteran of
twenty-four years, had taken perhaps a half dozen of Waterman ships
into dry-dock, never staying more than twenty-four hours in
dry-dock but with a total of eight to ten days in port, and his
crews were never laid off; he preferred to retain a crew for a
succeeding voyage.
In the very contract which the Waterman Company made with the
ISU, there are terms providing that, "[i]n Home Port, all men may
be required to work eight (8) hours daily . . . [with provision for
overtime]." And the section of the contract covering preference for
ISU men "shall not be construed to require the discharge of any
employee who may not desire to join the [ISU]. . . ." That the
contract contemplated an employment independent of the articles and
subject to termination in a manner other than by the mere
expiration of articles is apparent from the provision that "Nothing
in this agreement shall prevent . . . [the Company] from
discharging any member of the crew who is not satisfactory to the
Company."
All the evidence on this issue which the Board had before it
has, of course, not been set out. In summary, it
Page 309 U. S. 218
is glaringly apparent that men who had in various capacities
followed the sea in the aggregate for roughly a hundred years
offered testimony that a seaman's tenure and relationship to his
ship and employer are not terminated by the mere expiration of
articles when his ship lays up in dry-dock or for repairs, and that
the Waterman Company -- and maritime people generally -- have
recognized and followed this custom. Even the Waterman Company's
executive vice-president could cite only one instance in the
Company's recent past in which this custom had been departed from,
but that particular mass firing of the crew of a ship headed for a
temporary lay-up was directed against the only CIO crew, other than
those of the "Bienville" and "Fairland," with which the Waterman
Company apparently had been asked to deal. And the master of the
"Fairland," with personal knowledge of the Company's practice
reaching back to 1924, had never heard of "another case where the
entire crew was laid off."
In the words of the Act, an employer cannot terminate his
employees' "tenure of employment or any term or condition of
employment" [
Footnote 9]
because of union activity or affiliation. These words are not
limited so as to outlaw discrimination only where there is in
existence a formal contract or relation of employment between
employer and employee. They embrace, as well, as elements of the
employment relationship which in fact customarily attend employment
and with respect to which an employer's discrimination may as
readily be the means of interfering with employees' right of
self-organization as if these elements were precise terms of a
written contract of employment. The Act, as has been said,
recognizes the employer's right to terminate employment for
Page 309 U. S. 219
normal reasons. [
Footnote
10] No obstacle of legal principle barred the Board from
finding that there was, even after the ships were temporarily laid
up, a relationship of employment or tenure between the Waterman
Company and its men. That there may be a tenure or term of
employment determinable at will is a recognized principle of law.
[
Footnote 11] For the
purpose of the Act, it is immaterial that employment is at will and
terminable at any time by either party. [
Footnote 12] A large part of all industrial employment
is of this nature. For illustration, factory workers are
customarily employed at will, without obligation of employer or
employed to continue the relationship when the day's work is done,
or, if there is an agreement fixing salary or wages per unit of
service at so much per day, week, or month, there may be an
indefinite employment terminable by either party at the end of any
unit period. But when such employees are customarily continued in
their employment with recognition of their preferential claims to
their jobs, it cannot be doubted that their wholesale discharge at
the end of the day or other unit period, in order to favor one
union over another, would be discrimination in regard to the
"tenure" or "condition" of their employment in violation of the
Act. And employees under such tenure of employment as these seamen
were have a right guaranteed by the Act that they will not be
dismissed because of affiliation with a particular union.
Page 309 U. S. 220
Since the Board justifiably found that an employment
relationship protected by the Act continued after the "Bienville"
and "Fairland" were temporarily laid up, it becomes unnecessary to
consider the additional finding of the Board that the
"dates and durations of the particular lay-ups were arranged for
the purpose of making it possible to discharge the crews because
they had joined the NMU."
The sole question remaining is whether the evidence supported
the findings of the Board that the employment or tenure of the
crews and of O'Conner and Pelletier were terminated because they
had joined or engaged in the activities of the CIO
Evidence of discrimination because of CIO affiliation.
About July 1, 1937, the entire crew of the "Bienville" and all but
three of the "Fairland," previously ISU (AFL), joined the NMU (CIO)
in Tampa, Florida. Such action had been decided on in June by the
crew of the "Bienville" while she was in Le Havre, France. After
the crew of the "Bienville" changed to the CIO at Tampa and before
she reached Mobile, the AFL representative at Tampa informed the
AFL representative at Mobile, by telephone, that the change had
taken place. And the Mobile AFL representative "at that time"
notified the Waterman Company of the change. Intervening scheduled
stops of the "Bienville" were cancelled by a memorandum purporting
to have been written on July 1 and ordering her to Mobile to "go on
inactive status for a period of about twenty days." The port
captain of the Waterman Company, who signed this memorandum, stated
that it was written on July 1, "to the best of . . . [his]
knowledge." He added that it had not been written until after the
"Bienville" was on her return voyage from Le Havre. That was after
the ship's crew had, in assembly, determined to turn CIO. No such
cancellation was directed to the
Page 309 U. S. 221
"Fairland." The "Fairland," he testified, was laid up because
periodic repairs "were due." On the other hand, her master had no
knowledge of any contemplated lay-up until she reached Mobile, and
understood, according to advice given him, that she was laid up
because "she was behind schedule . . . and they put her back to the
next sailing." The Waterman port captain thought she was laid up
because repairs "were due;" he had no knowledge that it was because
she was behind schedule. Her master's testimony showed,
"Q. The laying up plan, then, had been something that was
contemplated in Tampa? "
"A. No, Sir."
"Q. It was something that came into existence after you sailed
from Tampa and before you came to Mobile, is that right?"
"A. Yes."
The "Fairland" is equipped with radio.
The ships were in Mobile by July 6. There was testimony that a
member of the crew of the "Bienville," on the sixth, was asked by
the executive vice-president of the Company why the change of
unions was made and was told by that official "a man has to use his
own head." This same witness testified that several of the
discharged crew were given some work ashore and that
"on a Saturday afternoon we collected three days pay, they held
back two days in the week, and about three o'clock in the afternoon
the first assistant came around there and I was working on some
safety valves on the boilers, and . . . [the assistant port
engineer of Waterman Company] said, 'Well, I got a chance to fire
you at last,' and I said, 'What is that?' And he said, 'Well, you
can get the rest of your money when you are finished,' and I said,
'What's the matter, aren't we going to sail the ship?' And he said,
'No, not unless you go back to the other place,' and I said, 'What
other place?' And he said, 'The ISU' "
Page 309 U. S. 222
Pelletier, the steward on the "Bienville" worked for Waterman
from 1934 until discharged after joining the NMU (CIO). When the
"Bienville" arrived at Mobile, Waterman's port steward went to the
boat, and talked with the mate, who informed him that some of the
men had joined the NMU. According to the port steward's testimony,
he then asked the mate, "How is the Steward's Department?" and the
mate replied,
"Well some of them joined the N.M.U . . . , and later on I [the
port steward] found the steward in his room. . . . I asked
Pelletier did he join the NMU, and he said 'Yes,' and I said 'What
about the rest of your crew?' and he said 'Well, they all did.' I
asked him did they have any reason for it, and he said, 'Yes,
everybody did,' so I said 'All right,' and I left the ship."
He returned to the Company's office. Two hours later, he came
back to the ship, charged Pelletier with incompetency, and
discharged him. Pelletier testified that the port steward, when
told that the crew and Pelletier had turned NMU said, "Well I have
got orders to lay you all off." Pelletier had been promoted just
prior to the voyage in question. A new ISU man was put on to finish
up his work and remained on as watchman practically the full time
the "Bienville" was laid up.
Although her captain had, prior to the coming aboard of a
Company official, expressed a desire to keep the "Fairland's" crew,
as one of her crew testified, the crew was informed by this
official that they could not sail, "but if you take your books and
give them to . . . the ISU you can keep your jobs;" another
Waterman official "told me I could not sail on any Waterman
steamship as long as I was an NMU man." According to this witness,
he had left his clothes on the "Fairland" and slept aboard ship
when she was in dry-dock with the understanding he would re-sign;
he was, however, ordered off the ship.
Page 309 U. S. 223
An engineer on the Waterman vessel "Azalea City," eight years
with the Company, O'Conner, a member of the M.E.B.A. (also
affiliated with the CIO) testified that he acted as spokesman for
other engineers on his ship in complaining about working
conditions, hours of employment, and rates of pay; when he
discussed the complaint with the Company's representative during
July, he was told to take a vacation, and left the ship on a
promise of a more desirable job; neither the vacation, the promised
job, nor reemployment of any kind was ever given him. Waterman's
executive vice-president had never had an engineer act in such a
representative capacity relative to asserted violations of a union
contract. And the assistant port engineer stated that it was the
custom to call a man of O'Conner's rank when not on vacation; that
O'Conner had been promised and then denied a vacation, but had not
been called although work had been available; and, in addition that
O'Conner had in conversation with him asked "[w]ould Waterman give
me employment."
The executive vice-president of the Company would not "until the
actual time came" answer the query whether he would reinstate the
NMU men even if there were no contract with the ISU. He stated that
he had received a wire from the Board's regional Director at New
Orleans on July 7, recommending and insisting on reinstatement of
NMU men dismissed at Mobile, and did not deny that he had first
told the Director that his reason for not working NMU men was the
existence of the ISU contract. He admitted, however, that later on
the same day his decision that the men were removed because the
vessels were laying up was attributable to an apparent change of
his own mind.
Additional evidence that the discharged NMU men were again
treated with discrimination in the allotment
Page 309 U. S. 224
or repair work on the "Bienville" and "Fairland;" and were laid
off in a block even from this work -- all tended to buttress and
illuminate the Board's finding that the tenure of employment of
these men of the "Bienville" and "Fairland" was cut short because
they had exercised their lawful right to join the CIO. One of the
men who was given temporary repair work -- subsequent to the
Board's telegram of the seventh -- testified:
"Q. While you were a member of the NMU, did you ever wear you
NMU badge or button?"
"A. Yes, sir; I used to wear it on my cap, on the dock while I
was working down there."
"Q. Was there anything ever said to you at the Waterman
Steamship about wearing it?"
"A. Mr. Ingram told me I would have to take that Maritime Union
button off if I wanted to stay around there, and I took it off, and
put it in my pocket."
From all this evidence, there can be no doubt of the substantial
support for the Board's finding that the crews, O'Conner and
Pelletier all lost their jobs because of CIO affiliation and
activities.
Evidence of Discrimination as to ships' passes. The
Board found
"that the respondent, by issuing passes to representatives of
the ISU and refusing to grant such passes to representatives of the
NMU for the same purpose and under the same conditions, had
interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the Act.
[
Footnote 13]"
An election to permit a choice of bargaining agency by
Page 309 U. S. 225
the crews has been directed but has not been held pending
termination of the present proceeding. [
Footnote 14]
Upon this issue of discrimination concerning passes, NMU's
representative testified that the Company's executive
vice-president, about September 24 or 25, 1937, refused his request
"for passes for the election of the NLRB" because of the ISU
contract. But no provision of the ISU contract referred to ships'
passes for representatives of other unions. The respondent's
attorney took the position that NMU representatives would not be
permitted on board under any conditions. Testifying that ISU
representatives were permitted aboard the "Bienville" at all times
to contact the men, Pelletier "did not recollect seeing anyone with
them." Waterman's executive vice-president who pointed out that ISU
delegates were given passes on certain conditions, such as taking
out insurance for delegates going aboard, did not know whether, in
fact there had been compliance by the ISU with the conditions. He
testified that he had issued instructions, July 13, to permit ISU
representatives aboard ship only to collect dues. But he also
testified that they were still permitted to contact members. The
master of the "Fairland" stated that he did not receive the
instructions of July 13 until August, and that, even after the
instructions were put in effect, he permitted ISU representatives
to board ship unaccompanied; he did not know what they said to the
men, whether they brought literature aboard, or whether they
restricted themselves to the collection of dues. Although always
present at the paying off and signing off of articles, when the ISU
representatives collected dues, the Company's port captain "did not
pay any strict attention whatever to what they were doing." Asked
whether he knew what these representatives did at such times,
he
Page 309 U. S. 226
replied, "I did not follow them around to see what they were
doing."
Enough has been shown to establish the reasons for the Board's
decision that, if the Company was to permit any opportunity for
contact with the men, a fair election required that equal
opportunities be given to both the CIO and the AFL. The control of
the election proceedings, and the determination of the steps
necessary to conduct that election fairly were matters which
Congress entrusted to the Board alone. [
Footnote 15] Interference in those matters constituted
error on the part of the court below.
All of this is not to say that much of what has been related was
uncontradicted and undenied by evidence offered by the Company and
by the testimony of its officers. We have only delineated from this
record of more than five hundred pages the basis of our conclusion
that all of the Board's findings, far from resting on mere
suspicion, are supported by evidence which is substantial. The
Court of Appeals' failure to enforce the Board's order resulted
from the substitution of its judgment on disputed facts for the
Board's judgment -- and power to do that has been denied the courts
by Congress. Whether the court would reach the same conclusion as
the Board from the conflicting evidence is immaterial and the
court's disagreement with the Board could not warrant the disregard
of the statutory division of authority set up by Congress.
The cause is reversed and remanded to the Court of Appeals with
directions to enforce the Board's order in its entirety.
Reversed.
MR. JUSTICE MURPHY took no part in the consideration or decision
of this case.
[
Footnote 1]
The Board specifically referred to
Labor Board v. Bell Oil
& Gas Co., 98 F.2d 406,
rehearing denied, 98 F.2d
870 (also 91 F.2d 509; 98 F.2d 405; 99 F.2d 56);
Peninsular
& Occidental S.S. Co. v. Labor Board, 98 F.2d 411,
cert. denied, 305 U.S. 653;
Globe Cotton Mills v.
Labor Board, 103 F.2d 91.
[
Footnote 2]
49 Stat. 449, Sec. 10(e).
[
Footnote 3]
308 U.S. 534.
Cf. Federal Communications Commission v.
Pottsville Broadcasting Co., ante, p.
309 U. S. 134.
[
Footnote 4]
In outline, the Board ordered the Waterman Company to cease and
desist from issuing ships' passes to the AFL on a favored basis as
compared to the CIO; from discouraging membership in CIO affiliates
by discriminating against its members, and from interfering with
its employees' rights of self-organization and free collective
bargaining. It affirmatively ordered the Company to grant equal
passes to the CIO and the AFL, if granted to either; to make whole
and offer full reinstatement to those employees found to have
suffered discrimination, and to post appropriate notices on the
Waterman vessels.
[
Footnote 5]
In part, that contract reads:
"Section 1. It is understood and agreed that, as vacancies
occur, members of the International Seamen's Union of America who
are citizens of the United States, 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 employee who may
not desire to join the Union, or to apply to prompt reshipment, or
absence due to illness or accident."
Only the discharge of Pelletier is claimed by the Company to
have been due to incompetency. The Court below held that O'Connor
had taken a vacation and was not discharged, and was thus entitled
to vacation pay and reinstatement; the Board had ordered that
O'Conner be made whole "for any loss of pay" suffered as a result
of the Company's acts which the Board found had been
discriminatory.
[
Footnote 6]
49 Stat. 449, 452, §§ 7, 8.
[
Footnote 7]
See 1 Stat. 131.
[
Footnote 8]
See Lent Traffic Co. v. Gould, 2 F.2d 554, 556;
United States v. Westwood, 266 F. 696, 697;
The
Occidental, 101 F. 997. As to the history of this legislation,
see United States v. The Brig Grace Lathrop, 95 U. S.
527.
[
Footnote 9]
§§ 8(1), (3).
[
Footnote 10]
Labor Board v. Jones & Laughlin Steel Corp.,
301 U. S. 1,
301 U. S. 45.
[
Footnote 11]
See, e.g., Alabama Mills v. Smith, 237 Ala. 296, 186
So. 699;
Peacock v. Virginia-Carolina Chemical Co., 221
Ala. 680, 130 So. 411;
Great Atlantic & Pacific Tea Co. v.
Summers, 25 Ala.App. 404, 148 So. 332,
cert. denied,
226 Ala. 635, 148 So. 333.
Cf. United States F. & G. Co. v.
Millonas, 206 Ala. 147, 89 So. 732.
[
Footnote 12]
Cf. Morgan v. Commissioner, ante, p.
309 U. S. 78;
Lyeth v. Hoey, 305 U. S. 188,
305 U. S.
193.
[
Footnote 13]
The Board ordered, as to ships' passes, that the Company
"Cease and desist:"
"From refusing to issue passes to authorized representatives of
the National Maritime Union of America in equal numbers and under
the same conditions as it grants passes to representatives of the
International Seamen's Union of America or its successors; . .
."
[
Footnote 14]
See 12 N.L.R.B. 766, 767, 769.
[
Footnote 15]
American Federation of Labor v. Labor Board,
308 U. S. 401;
Labor Board v. Falk Corporation, 308 U.
S. 453.