Brief for the Respondent — Southern Steamship Co. v. National Labor Relations Board
Supreme Court brief1941
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Inthe Supreme Court of the United States
OcTOBER ‘TERM, 1941
SOUTHERN STEAMSHIP COMPANY, PETITIONER
e’.
Nationa Lapork RELATIONS Boarp
ON PETITION FOR A WRIT GE CERTIORARI TO 1 WE UNITED
STATES CIRCUIT COURT OF APPEALS LOR 7 UE THIRD
CIRCUIT
BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD iN
OPPOSITION
~ a me eee >
Page
Opinions below - - .--------------------------0- 2-000 rrr i
Jurisdiction ~~. -.-- Se ge a ee rE Te Le 2
Questions presented. - - -- ---------------------------- one 2
Statute involved. -------.------------------ eat rita es cahcen alr 2
ere A pe SO a OT Le 3
Agmumoent..... . . - ------ 2-2-2 -- 2-2-3 - on ene ten mene ne--e- 7
CO... oa ew ccees wend Ne ae ag akin as anata we 13
Appendix. ------- PT es lis intial elias mania nana 14
CITATIONS
Cases:
Black Diamond Steamship Corp. v. National Labor Relations
Board, 94 F. (2d) 875, certiorari denied, 304 U. 8. 579-. 8
Blake, The, W. Rob. 73, 166 Eng. Rep. 500_..----------- 8
Buddington v. Smith, 13 Conn. 333- - -- ------ rata ona s
Losmar, The, 20 F. Supp. 887- - ---- -------------------- 9
Marlin-Rockwell Corp. v. National Labor Relations Board,
116 F. (2d) 586, certiorari denied, No. 1032, last Term - 12
National Labor Relations Board v. American Mfg. Cv., 106
F. (2d) 61, mod. and aff'd, 309 U. S. 629_--- 10
National Laber Relations Board v. Coiten, 105 F. (2d) 179 10
National Labor Relations Board v. Falk Corp., 308 U. 5. 453- 11
National Labor Relutions Board v. Fansteel Metallurg:cal
Yorp., 306 U. 8. 240... ------------------------- 9, 10
National Labor Relations Board v. Reed & Prince Mfg. Co.
118 F. (2d) 874. certiorari denied, No. 1052, last Term- 10
National Labor Relations Board v. Stackpole Carbon Co.,
105 F. (2d) 167, certiorari denied, 308 U. S. 605------- 10
National Labor Relations Board v. Waterman Steamship
Corp., 309 U. 8. 206. ..-----.----------------------- 8,11
Newark Morning Ledger Co. v. National Labor Relations
Board, No. 307, this Term-------------------------- 6
Oakmar, The, 20 F. Supp. 650- - - - ----------- 9
Oughton v. National Labor Reletions Board, Ke. 98, “this s
i dete eeeUneteneuecseossoe 6
Peninsular & Occidental S. S. Co. v. National Labor Relations
Board, 98 F. (2d) 411, certiorari denied, 30€ U. S. 653- 8
Phelps Dodge Corp. v. National Labor Relations Board, Nos.
387, 641, last Term_....---------------------------- 12
Rees v. United States, 95 F. (2d) 784-------------------- s
409227—41——-1 (1)
Il
Cases—Continued.
Republic Steel Corp. v. National Labor Relations Board,
107 F. (2d) 472, certiorari denied on this point, 309
a Wa anniad emake eee ceed APEA sted gaeenaed
Texas Co. v. National Labor Relations Board, 120 F. (2d)
icacdtinnis + hcecedud ack det Gunns acebuaa dwn de mass
Textile Mills Securities Corp. v. Commissioner of Internal
Revenue, No. 34, this Term, certiorari granted, March
UU: anh cca wae wale wa cuban wureaiaeat aula wa olalee ai ens
South Atlantic S. S. Co. v. National Labor Relations Board,
116 F. (2d) 480, certiorari denied, No. 969, last Term. -
South Portland, The, 111i Fed. 767_--.-.-- We chaaesslact ueape av oo res ae an
Weisthoff vy. American-Hawauian S. S. Co., 79 F. (2d) 124,
certiorari denied, 206 U. S. 619...............-.-...-.-
Statutes:
National Labor Relations Act (Act of July 5, 1935, c. 372,
49 Stat. 449; 29 U. 8. C., owe. V., sec. 151 et seq.):
OE a a oo re woken nace a seceaWaeccauwewe en
IE a aanweuia leew amare an Pua uae oe
PREIS ween wig cn sec Gee daauwen sank eee
Miscellaneous:
Employee Misconduct Under the Wagner Act: Developments
Since the Fansteel Case, 39 Col. L. Rev. 1369... .----
First Annual Report of the National Mediation Board (1935),
ee
Lorwin & Wubnig, Labor Relations Boards (Brookings
Institution, 1935), pp. 150-161_................-.----
Rothschild, The Legal Implications of a Strike by Seamen,
OD FUR Pe. de Bienen deudiisdctcesvcgeevisecasedons
Sapiro and Frank, Mutiny at the Dock, 25 Calif. L. Rev. 41_-
Third Annual Report of the Board (1938), p. 147_...------
Gnthe Supreme Court of the Wnited States
OcToBER TERM, 1941
No. 320
SOUTHERN STEAMSHIP COMPANY, PETITIONER
v.
NATIONAL LABOR RELATIONS BcCARD
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES CIRCUIT COURT OF APPEALS FOR THE THIRD
CIRCUIT
BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD IN
OPPOSITION
OPINIONS BELOW
The opinions of the Circuit Court of Appeals (R.
769-785) * are reported in 120 F. (2d) 505. The
findings of fact, conclusions of law, and order of the
National Labor Relations Board (R. 14-44) are
reported in 23 N. L. R. B., No. 2.
1 Pursuant to stipulation of the parties (R. 790-791), the
printed record herein for purposes of the petition for a writ
of certiorari consists of the appendix to the brief of peti-
tioner, filed in the court below, and the proceedings before
the United States Circuit Court of Appeals for the Third
Circuit.
(})
2
JURISDICTION
The decree of the Circuit Court of Appeals (R.
786--789) was entered on May 20, 1941. The peti-
tion for a writ of certiorari was filed on July 30,
1941. The jurisdiction of this Court is invoked
under Section 249 (a) of the Judicial Code, as
amended by the Act of February 13, 1925, and
under Section 10 (e) and (f) of the National Labor
Relations Act.
QUESTIONS PRESENTED
1. Whether under the National Labor Relations
Act seamen may be discharged for having engaged
in a peaceful strike on board a vessel on which they
worked and which was safely moored in a domestic
port but not the home port.
2. Whether there is substantial evidence to sup-
port the Board's finding that the signing off of
shipping articles did not terminate the tenure of
employment of petitioner’s seamen.
3. Whether the Board abused its discretion in
refusing tc pe:mit the presence of representatives
of the empioyer at an election held under Section 9
of the National Labor Relations Act to determine
collective bargaining representatives.
STATUTE INVOLVED
The pertinent provisions of the National Labor
Relations Act are set out in the Appendix.
~*~
3
STATEMENT
In proceedings under Section 9 of the Act in
which petitioner, the National Maritime Union of
America (herein called the Union), and the Inter-
national Seamen’s Union of America participated,
the Board on July 16, 1937, issued its Decision and
Direction of Election (R. 19, 671). Pursuant
thereto, an election to determine collective
bargaining representatives was conducted by the
Board’s Regional Director. On January 3, 1938,
the Regional Director issued a report finding that
the results of the election showed that a majority of
the eligible employees had voted for the Union (R.
759-761). Petitioner filed objections to the eleec-
tion and to the Regional Director’s report on the
ballot ; the objections were grounded on the refusal
to permit the presence of company representatives
at the balloting on one of the vessels (R. 76-78,
762-764). On January 26, 1938, the Board dis-
missed petitioner’s objections and certified the
Union as exclusive representative of petitioner’s
employees within the appropriate unit (R. 671-
674).
Susequently, upon charges filed by the Union
alleging that petitioner had engaged in unfair
labor practices in violation of Section 8 (1), (3),
and (5) of the Act, and following a hearing and
other usual proceedings under Section 10 of the
Act, the Board on April 22, 1940, issued its find-
ings of fact, conclusions of law, and order
(R. 1444). So far as here material, the facts,
4
as found by the Poard and as shown by the evi-
dence, may be summarized as follows:*
Following the certification on January 26, 1938,
of the Union as exclusive bargaining representa-
tive, the Union repeatedly requested petitioner
to hold a collective bargaining conference with
it; petitioner did not accede to any of these
requests and did not even reply to most of them (R.
21-22; R. 92-99, 108-112, 589-592). The Board
found that on or about January 26, 1938, and at all
times thereafter petitioner thereby refused to bar-
gain collectively in violation of Section 8 (5) and
(1) of the Act (R. 22, 40).
Primarily because of petitioner’s unlawful re-
fusal to bargain with the Union, 13 unlicensed sea-
men of the City of Fort Worth, who were members
of the Union, struck on board that vessel on July
18, 1938, while she was moored to the dock at Hous-
ton, Texas, during the course of a coastal voyage
(R. 22-25, 28-29; R. 128-131, 179-181, 431-433,
093-096). At 8 a. m. the strikers failed to turn
on steam for loading cargo (R. 23; R. 182,
301-356). They withdrew to the poop deck,
which serves as the general meeting place of the
seamen when off duty, and rejected the requests
and orders of the officers and a deputy United
States Shipping Commissioner to abandon the
strike (R. 23-24; R. 138-140, 165-169, 209-210,
*In the following statement the references preceding the
semicolons are to the Board’s findings and the succeeding
references are to the supporting evidence.
5
219-220, 269-274, 356, 369, 380-383, 431-440, 500).
They maintained sufficient steam, however, for the
operation of the ship’s sanitary and safety appli-
ances and remained seated on the poop deck
without attempting to interfere with the normal
shipboard operations performed by the officer's and
nonstriking crew members (R. 23-25, 29; R. 130-
131, 135-137, 182, 241-242, 290-293, 323, 375, 387-
388, 404, 499-502, 595, 596). The strikers were
not at any time ordered to leave the ship (R. 24,
30; R. 404, 513). At 7 p. m. the same day, after
petitioner’s local attorney promised that petitioner
would meet with the Union in an effort to nego-
tiate an agreement, the strikers resumed their
stations and the ship sailed on schedule (R. 24-25;
R. 142-149, 274-275, 292-293, 450-453, 483, 620-
621).
On July 25, at the end of the voyage and upon
the signing off of shipping articles at the home port
of Philadelphia, petitioner refused to reship five of
the seamen because of their participation in the
strike (R. 26, 32-37; R. 151-155, 185-186, 195, 201-
202, 223-225, 284, 289-290, 298, 338, 391, 394, 493-
494, 520-521, 533-534). Seven other seamen con-
sequently struck and left the ship in protest against
petitioner’s discriminatory action (K. 26, 38-39; R.
156-157, 202, 226, 244-245, 248-249, 255-256), The
* The captain and ship’s officers did not regard the strikers
as having taken possession of the ship (R. 29-30; R. 404,
499-500).
6
Board found that the five seamen were discharged
in violation of Section.8 (3) and (1) of the Act, and
that the strikes of July 18 and 25, 1938, were caused
by petitioner’s unfair labor practices (R. 25, 26,
32-39).
The Board's order required petitioner to cease
ald desist from its unfair labor practices, to bar-
gain collectively with the Union upon request, to
offer reinstatement with back pay to the five sea-
men against whom petitioner had discriminated, to
offer reinstatement upon application to the seamen
who went on strike on July 25, and to post appro-
priate notices (R. 40-44).
Thereafter, petitioner filed in the court below its
petition to review and set aside the Board’s order
(R. 1-13); the Board requested enforcement (R.
45-52). The case was argued on October 8, 1940,
before three judges (R. 767-768) ; on February 7,
1941, the case was restored to the argument list for
rehearing before the court en bane (R. 768). The
‘vase Was heard and decided by the court en banc
(R. 768-769)... On May 6, 1941, the court below
* The question Whether a circuit court of appeals may be
composed of all the circuit judges in active service, sitting
en banc, is now before this Court in 7ertile Mills Securities
Corp. v. Commissioner of Internal Revenue, No. 34, this
Term, certiorari granted, March 31, 1941. It has also been
raised in Oughton v. National Labor Relations Board, No.
98, this Term, petition for writ of certiorari filed May 22,
1941, and Vewark Morning Ledger Co. v. National Labor
Relations Board, No. 307, this Term, petition for certiorari
filed July 24. 1941. Petitioner in the instant case does not
raise the question.
7
handed down its opinion directing entorcement of
the Board’s order with a modification not here ma-
terial (R. 769-780). The court’s decree was
entered on May 20, 1941 (R. 786-789).
ARGUMENT
1. Petitioner contends (Pet. 2, 7-8, 11-18) that
seamen who engage in a peaceful strike on board
a vessel moored in a safe domestic harbor are guilty
of revolt and mutiny, and therefore forfeit their
rights to the protection of the National Labor Rela-
tions Act against discharge for concerted union ac-
tivity. Neither logic nur law supports this conten-
tion. As the court below held (R. 774-780), and as
students of the subject have recognized (Roth-
schild, The Legal Implications of a Strike by Sea-
men, 45 Yale L. J. 1181; Sapiro and Frank, Mutiny
at the Dock, 25 Calif. L. Rey. 41), modern indus-
trial conditions require that seamen, no less than
workers on land, have the right in port to
withhold their collective services in order to
achieve their economic demands or, as here, in
order to enforce the right of collective bargaining
unlawfully denied them by their employer. With-
out reference to the wisdom of the policy suggested
by the petitioner, it is clear that the Act does not
provide for the exception which petitioner now
urges. On the contrary, Congress, by the terms of
the Act, has broadly guaranteed the right to ‘‘any
employee”’ “‘to engage in concerted activities, for
the purpose of collective bargaining ‘or other
409227—41—_—_2
§
mutual aid or protection’? (Sections 2 (3), 7,
8(1)).
Even apart from the clear terms of the Act, it is
plain that seamen in a harbor of safety neither are
denied the right te strike nor ary they guilty of re-
volt or mutiny if they withhold their services.
Weisthoff v. American-Hawatian 5. S. Co., 79 F.
(2d) 124 (C. C, A. 2), certiorari denied, 296 U.S.
619; Black Diamond Steamship Corp. v. National
Labor Relations Board, 94 F. (2d) 875 (C. C. A.
2), certiorari denied, 304 U.S. 579; The Biake, W.
Rob. 73, 166 Eng. Rep. 500, 506; The South Port-
land, 111 Fed. 767 (D. Wash. N. D.) ; Buddington
v. Smith, 13 Conn, 333. None of the cases cited by
petitioner (Pet. 14-18) is tothe contrary. In Rees
v. United States, 95 F. (2d) 784 (C. C. A. 4), the
court expressly pointed out-~that the question
whether ‘‘the crew of a vessel which is moored to
a dock or is at anchor in a safe harbor have the
right to strike * * * is not presented for de-
cision in this ease’? (95 F. (2d) at 792). In
Peninsular & Occidental S. 8S. Co. v. National
Labor Relai.cns Board, 98 F. (2d) 411 (C. C.
A. 5), certiorari denied, 305 U. S. 653. it was not
the act of striking which afforded lawful ground
*The only workers excluded from the category of “em-
ployee” are “any individual employed as an agricultural
laborer, or in the domestic service of any femily or person at
his home, or any individual employed by his parent or
spouse” (Section 2 (3)). In National Labor Relations
Board vy. Waterman Steamship Corp., 309 U. S. 206, this
Court upheld the application to seamen of the protective
guarantees of the Act.
se ae ees Oe
PPA See ee eee PEN ae
9
for discharge, but since the strikers unlawfully
took possession of the vessel, committed sabotage,
and threatened to renew such wnlawful acts, the
discharges were regarded by the court as ‘‘a neces-
sary measure for the safety of the ships’’ (98
F. (2d) at 414415).° Similarly, in both The Los-
mar, 20 F. Supp. 887 (D. Md.), and The Oakmar,
20 F. Supp. 650 (D. Md.), the strikers had re-
fused to leave the vessel when ordered to do so
by the master and consequently were found by
the court to be trespassers.’ At most, in the in-
stant case the strikers were merely ordered to
abandon the strike, not to leave the ship (R. 24,
30).
Petitioner’s further contention (Pet. 8, 12-13,
18) that the strike was an unlawful ‘‘sit-down’”’
strike and the discharge of the strikers therefore
justified under the doctrine of National Labor Re-
lations Board v. Funsteel Metallurgical Corp., 306
U.S. 240. is also without merit. The concurrent
findings of the Board (R. 23-24, 25, 29-30) and of
* Petitioner suggests thet although no damage to the ship
was occasioned by the strike, the ship's safety was imperiled
because “serious consequences might have resulted” ( Pet. 13).
But the Board (R. 23, 25) and the court below (R. 775)
-expressly foun | that sufficient steam had been maintyined to
operate the ship’s sanitary and safety devices and that the
ship was admittedly not in danger at eny time. Petitioner
does not attack these findings as without substantial support-
ing evidence.
* Wholly inapposite is Teras Co. v. Naticiwl Labor Reta-
teuns Board, 120 F. (2d) 186 (C. C. A. 9) in which the court
held merely that to reinstate an habitual drunkard as boat-
swain would not effectuate the policies of the Act (p. 190).
10
the lower court (R. 774) establish that the strikers
did not engage in violence or other unlawful con-
duct and did not take or hold possession of the ship
against the authority of their employer ; on the con-
trary they simply remained seated on the poop
deck, their usual place to meet when off duty. and
were at no time ordered to leave the ship which was
their home. The quantitative and qualitative dif-
ferences between the employee conduct in the Fan-
steel case and the conduct involved here are
apparent. In similar cireumstances, the Fansteel
rule has been held inapplicable. National Labor
Relations Board v. American Mfg. Co., 196 F. (2d)
61, 68 (C. C. A. 2) modified and affirmed 309 U. S.
= F
. Petitioner urges (Pet. 3, 7, 8, 19-20) that the
Boara’ s finding that the tenure of employment of
petitioner’s seamen did not terminate by the sign-
ing off of shipping articles (R. 27-28) is not sup-
ported by substantial evidence. The court below
sustained the finding (R. 773-774). The evidence
amply sustains the concurrent holdings of the
*See also Nationai Labor Relations Board v. Reed &:
Prince Mfa. Co.. 118 F. (2d) 874, 888 (C. C. A. 1), certiorari
denied, No. 1052, October 1940, Term; Vational Labor Re/a-
tions Board v. Stackpole Carbon Co., 105 F. (2d) 167, 176
(C. C. A. 3), certiorari denied, 308 U. S. 605; Republic Steel
(orp. Vv. National Labor Relations Board, 107 F. (2d) 472,
479 (C. C. A. 3), certiorari denied on this point, 309 U. S.
684; .Vational Labor Relatiens Board v. Colten, 105 F. (2a)
179, 183 (C. C. A. 6); Note, Employee Misconduct Under
The Wagner Act; Developments Since The Fansteel Case,
39 Col, L. Rey. 1369.
11
Board and the reviewing court upon this issue of
fact. National Labor Relations Board vy. Falk
_Corp., 308 U.S, 453, 461. The discharged seamen
had worked for petitioner continuously for periods
ranging from 6 weeks to 18 months ’ (R. 27; R. 124-
125, 177-178, 196-197, 213, 278); petitioner’s sea-
men customarily signed new articles when signing
off the old and even when they did not, they never-
theless considered themselves engaged for the next
voyage unless expressly notified to the contrary (R.
27; R. 1538-154, 184-185, 199-201, 221-223, 300-
301) ; and, finally, petitioner’s officers significantly
referred to the five men as having been ‘‘dis-
charged’’ or ‘‘fired’” because of their strike ac-
tivity (R. 33, 35-386; R. 201-202, 224-225, 284, 338,
390-391, 394, 461-462, 491-492, 515). The evidence,
in short, was essentially like that before this Court
in Nutional Labor Relations Board v. Waterman
Steamship Corp., 309 U.S. 206, 213-217; see also
South Ailantic S. S. Co. v. National Labor
Relations Board, 116 F. (2d) 480 (C. C. A. 5), cer-
tiorari denied, No. 969, October Term 1940. In
any event, petitioner’s contention, even if true, is
immaterial, for if the employment relation did ter-
minate, petitioner’s refusal to rehire the men be-
cause of their strike activity was, as the Board
found in the alternative (R. 28), equally an unfair
labor practice under Section 8 (3) and (1) of the
Act. Phelps Dodge Corp. v. National Labor Rela-
* Each round trip voyage of the City of Fort Worth took
about 25 days (R. 27; R. 184, 213, 278).
on,
12
tions Board, Nos. 387, 641, October Term, 1940,
decided April 28, 1941.
3. Petitioner challenges (Pet. 3, 7, 21) the cer-
tification of the Union as exclusive representative,
and the consequent finding of refusal to bargain, on
the ground that the Board refused to permit em-
plover representatives to be present at the election.
The holding of the court below (R. 770-771) that
the Board did not thereby abuse its diseretion is in
accord with the only other decision upon the. ques-
tion. Marlin-Rockwell Corp. v. National Labor
Relations Board, 116 F. (2d) 586 (C. C .A. 2), cer-
tiorari denied, No. 1032, October Term, 1940, de-
eided June 2, 1941." While the presence of em-
ployer representatives may be helpful to Board
representatives who conduct the election in their
duty to determine the eligibility of the voters, the
presence of company representatives may have the
effect, though perhaps unitended, of inhibiting the
employees so that the election results do not reflect
ihe free and independent choice contemplated by
the Act." Accordingly, as a general rule, the Board
” The petition for certiorari in the Marlin-Rockwell case
strongly urged the point.
" As the court below stated: “* * * it [the Board] 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 iieniifying voters should be employed. The Act
confers no right upon the employer to have its representa-
tives present and it is obvious that their presence is not
essential to a fair election” (R. 770-771).
13
has not allowed employer representatives to be
present at the polls unless the labor organization
involved consents. Third Annual Report of the
Board (1938), p. 147.% Nor, as the lower court
pointed out (R. 771), bas petitioner shown any
prejudice. In these circumstances, the propriety
of the exercise of the Board’s discretion does not
present any question calling for review.
CONCLUSION
For the reasons stated, it is respectfully sub-
mitted that the petition for a writ of certiorari
should be denied.
CHARLES Fany,
Acting Solicitor General.
RicHarp 8S. SALant,
Attorney.
;
Rosert B. Warts,
General Counsel.
“ Morris P. GLUSHIEN,
RutH WEYAND,
Lovuts LIispsBin,
Attorneys,
National Labor Relations Board.
Avavust 1941.
12 Employer representatives were not permitted to be
present at elections conducted by the old National Labor
Board which administered section 7 (a) of the National In-
dustrial Recovery Act. Lorwin & Wubnig, Labor Relations
Boards (Brookings Institution, 1935), pp. 159-161. See
also, First Annual Report of the National Mediation Board
(1985), p. 4.
APPENDIX
The pertinent provisions of the National Labor
Relations Act (Act of July 5, 1935, ¢. 372, 49 Stat.
449; 29 U.S. C., Supp. V, See. 151 ef seq.) are as
follows:
Sec. 7. Emplovees shall have the right to
self-organization, to form, join, or assist
labor organizations, to bargain collectively
through representatives of their own choos-
ing, and to engage in concerted activities, for
the purpose of collective bargaining or other
mutual aid or protection.
Sec. 8. It shall be an unfair labor prac-
tice for an employer—
(1) to interfere with, restrain, or coerce
employees in the exercise of the rights guar-
anteed in section 7.
* * * * *
(3) By discrimination in regard to hire or
tenure of employment or any term or condi-
tion of employment to encourage or disceur-
age memberships im any labor organiza-
ime. > =. 4
* * ~ * *
(5) To refuse to bargain collectively with
the representatives of his employees, subject
to the provisions of section 9 (a).
Sec. 9. (a) Representatives designated
ar selected for the purposes of collective bar-
gaining by the majority of the employees in
a unit appropriate for such purposes, shall
be the exclusive representatives of all the
(14)
15
employees in such unit for the purposes of
collective bargaining in respect to rates of
pay, wages, hours of employment, or other
conditions of employment: * * *
* * * * *
(c) Whenever a question affecting com-
merce arises concerning the representation
of employees, the Board may investigate
such controversy and certify to the parties,
in writing, the name or names of the repre-
sentatives that have been designated or se-
lected. In any such investigation, the Board
shall provide for an appropriate hearing
upon due notice, either in conjunction with
a proceeding under section 10 or otherwise,
and may take a secret ballot of employees,
or utilize any other suitable method to
ascertain such representatives.
U S GOVERNMEN! PRINTING OFFIC”: 1941
Opinions below - - - - - - - - - beside neneaaemagt baaeuxdanae ves
Jeniodiation.. .«.<------ Pe Le teacene
Questions presented -.-.------------ eared gta
Statute involved -- - - - SSS eamadiaenrenaes aot dm iemakeaian aa
Statement........-------------- (iceudvoresminaadapeaned
Summary of argument. -.---------------------------- ane
Argument:
I. The discharge of seamen because they engaged in a
peaceful strike Gn a ship moored safely in a domestic
port for the purpose of inducing their employer to
comply with the National Labor Relations Act is an
unfair labor practice within the meaning of that Act.
A. The Board’s order would have been proper if a
similar strike had occurred on shore ---- ---
B. The fact that the strike involved the refusal of
seamen aboard ship to obey orders of the
master did not, in the present circum-
stances, justify the discharges or preclude
the Board from ordering reinstatement - - - -
1. In the circumstances of this case the
strikers’ conduct was not illegal. -
(a) The course of legislation -- - -
(6) The authorities. .-.....-.----
2. Even if, in a technical sense, the
strikers’ conduct were illegal, the
strikers would not have forfeited
their rights to reinstatement under
the National Labor Relations Act_-
C. The so-called breach of shipping articles con-
stituted no valid ground for the discharges -
Il. The Board's finding that the employment relationship
continued after the signing off of shipping articles
is supported by substantial evidence; in any event
petitioner discriminated against the men by failing
to rehire them. _.__. Oe ata
III. Petitioner was not improperly excluded from the
balloting for collective bargaining representatives ;
in any event peiitioner’s refusal to bargain violated
Section 8 (1) and (5) of the Act........----------
Cn a ae ee ee Te
Appeadiz.......---<--+--- Vawewdet shar ddn suas hee peetiQns
440963—42——1
eownn re =
co
18
18
= Be
62
see
A; 8
CITATIONS
Cases: Page
American France Line et al., In the Matter of, 3N. L. R. B.
ee NS eile wiolaut@e ts 3
Ayer & Lord Tie Co. v. Kentucky, 202 os Gbaceewiees 48
Black Diamond S. S. Corp. v. National Labor Relations
Board, 94 F. (2d) 875, certiorari denied 364 U. 3. 579.... 19, 23
Blake, The, 1 W. Rob. Adm. 73, 166 Eng. Rep. 500 (1839) - 45,
47, 50
Buddington v. Smith, 13 Conn. 333 (1839)_---.-.-------- 49
Calmar Steamship Corporation, In the Matter of, 18 N. L.
eS a Smeg oe 21
Carabajal v. Lucero, 22 N. Mex. 30, 158 Pac. 1088_...-.-- 68
Choisser v. York, 211 Ill. 56, 71 N. E. 940........--.---- 67
Condor, The, 196 Fed. 72__---- Se ee A i aS 45, 50
ee I ic cto cneeetenbhewees eenae 40
Dial v. Hoilandsworth, 39 W. Va. 1, 19 S. E. 557_-.-- .--- 68
Fort Orange, The, 5 Supp. 833- - - - - My a ee 48
Gilleiand v. Schuyler, 9 Kan. 560__......--.---.-------- 67
Hamilton v. United States, 268 Fed. 15, certiorari denied,
254 U. &. 645...... Sik Seee Ff FC
Hawthorne v. State, 116 Ala. 489, 22 So. Se 68
Hi. J. Heinz Co. v. National Labor Relations Board, 311
U. &. 34... ..- DEAN ee Regt t ek Se a eee Meer Ree 66
Losmar, The, 20 F. Supp. 887. Sh ger PO ih al alates ra 21
Marlin Rockwell Corp. v. National Labor Relations Board,
116 F. (2d) 586, certiorari denied, 313 UV. 8. 594______-- 64
Bs ee, Se We SA THO, Din kkn ow wie wn ccc ncecsces 45
Nuconal Federation of Railway Workers v. National Media-
tion Board, 110 F. (2d) 529, certiorari denied, 310 U. 8.
628 _. ae. oaks cee ee 67
Netional Laber Relations Board v. "American M fg. Co., 106
F. (24) Gi, wifirmed 200 U.S. 620... .......-....-....- 22, 60
National geet Relations Board v. Bradford Dyeing Ass'n,
gh RE TS a ep Pk Re a I ee ea cg a a 68
a ies Relations Beard \ v. Carlisle Lumber Co., 94
F. (2d) 138, certiorari denied, 304 U. 8. 575. -.---..--- 53
Nationa! Labor Relations Board v. Cities Service Oil Co.,
I a a aes ann 8
National Labor Relations Beard v. Colten, 105 F. (2d) 179__ 19, 53
National Labor Relations Board v. Falk Corp., 308 U. 8.
RANE Sa 2? oa UNE ge ey En CO 62, 65
National Labor Relations Board v. Fansteel Metallurgical
OE 4 ee Saar a ems OREN ye eee 20
National Labor Relations Board vy. Federal Bearings Co.,
LS AI ne ee oer a 54, 61
Ill
Cases—Continued. Page
National Labor Relations Board v. Hopwood Retinning Co.,
SE EE ha «cnc ed cometary seo ndake ensedaces 60
National Labor Relctions Board v. Jones & Laughlin Steel
SE hn ics cud aed saaeeahe seemed ou 66
National Labor Relations Board v. J ones Foundry & Machine
le EE EE on onnd watidtueabaeh chebeeeinen 66
National Labor Relations Board vy. Mackay Radio & Tele-
organ Core... G6 VU. &. GGe......+-.----.--- ee .
National Labor Relations Board v. Reed & Prince Mfg. Co.,
118 F. (2d) 874, certiorari denied, 313 U.S. 595. ___- 53
National Labor Relations Board vy. Remington Rana, /nc.,
94 F. (2d) 862, certiorari denied, 304 U. 8. 576..__..___ 19, 53
National Labor Relations Board vy. Stackpole Carbon Co.,
105 ¥. (2d) 167, certiorari denied, 308 U. S. 605__..-... 19, 53
National Labor Relations Board vy. Waterman Steamship
a EE Ee Onc cack eee hannean ce 17, 23, 66, 63, 65
National Licorice Co. v. National Labor Relations Board,
I on ee ia eae ea eenie oy Parag Bas ph eae 60
ee, See, ee eS E.G oan ies oo ebw ne vie weinee 21
Oliver v. Alexander, 6 Pet. #43_..-..-.--. -- hae 60
Peninsuiar & Occidental 8. S. Co. v. Na tional. Labor Rela-
tions Bocgrd, 98 F. (2d) 411, certiorari denied, 305 U.S.
as Se re a ee ae aes 21, 47, 60
People v. Cook, 8 N. Y. 67, 59 Am. Dee. 451_-.---. . .- 67
Phelps Dodge Corp. v. National Labor Relations Board, 313
ER RR RR ea LS ARLE ee ase Ree 17, 64
Rees v. United States, 95 F. (2d) 784._...__-_.---- 42, 43, 44, 57
Republic Steel Corp. v. National Labor Relations Board, 107
F, (2d) 472, certiorari denied on this point, 310 U. 8. 655_ 19,
53, 54
Ritzwoller Co., M. H., v. National Labor Relations Board, 114
ek ee ee wede oe we 19
Roberison v. Baldwin, 165 U. S. 275......---.------2.-- 45
Sanders v. Lacks, 142 Mo. 255, 43 8. W. 653_.-.._.-.._.- 68
ne Ue peucsbeentnwes 45
UE i ve metinwnens 38
Sonderburg, The, 47 F. (2d) 723, certiorari denied, 284 U. S.
re ne hia ai iatoate palnigt aris 45
South Atlantic Steamship Co. v. National Labor Relations
Board, 116 F. (2d) 480, certiorari denied, 313 U.S. 582__ 63
Southern Pacific Co. v. Kentucky, 222 U.S. 63_-.._._.--- 48
State ex rel. McMillan v. Sadler, 25 Nev. 131, 58 Pac. 284__- 68
Stewart Die Casting Corp. v. National Labor Relations
Board, 114 F. (2d) 849, certiorari denied, 312 U.S. 680_- 53
Tezas & N. O. R. Co. v. Brotherhood of Railway Clerks, 281
i endrtiaie aces a teliann d4 eleauesneewiwern ie 37
Tiger v. Western Investment Co., 221 U. S. 286_-__.___--- 40
United States v. Albers, 115 F. (2d) 833_-.-.-.-..------- 42, 57
Iv
Cases—Continued. Page
United States vy. Barker, 24 Fed. Cas. No. 14,516. _.-_--.- 42, 44
United States v. Cassedy, 25 Fed. Cas. No. 14,745. ------- 42, 44
United States v. Freeman, 3 How. &56__..--------------- 40
United States v. Gardner, 25 Fed. Cas. No. 15,188_ -_----- 42, 44
United States v. Haines, 26 Fed. Cas. No. 15,275__........ 42, 44
United States v. Hamilton, 26 Fed. Cas. No. 15,290_.... 42, 43, 44
United States v. Hutcheson, 312 U. 8. 219......---------- 34, 35
United States v. Lynch, 26 Fed. Cas. No. 15,648-....-.---.- 42, 56
United States v. Nye, 27 Fed. Cas. No. 15,906_........ 42, 44, 56
United States v. Roberts, 27 Fed. Cas. No. 16,173_.......- 42, 43
Uniied States v. Seagrist, 27 Fed. Cas. No. 16,245. __..._-- 57
United States v. Staley, 27 Fed. Cas. No. 16,274_..-...--- 42, 45
United States vy. Stevens, 27 Fed. Cas. No. 16,394_._____-_- 43
United States v. Stewart, 311 U. S. 60____- BR Ea a Sg REN 40
Virginia Ry. Co. v. System Federation No. 40,11 F. Supp.
621, affirmed 84 F. (2d) 641, affirmed 300 U.S. 515... _- 67
rae We Tar, Bee ahs Bs BN, Give ewan ecerewtswecds 68
Weisthoff v. American-Hawatian S. S. Co., 79 F. (2d) 124
certioragi denied 206 U.S. 619.._..............------ 45
Vestern Union Telegraph Co. v. National Labor Relations
Be, Be a Gr Oe . = wee so ow Sec eccwns Ltn ea 60
Statutes:
Act of April 30, 1790, c. 9, 1 Stat. 112-115, Sees. 8, 12 26
Act of March 3, 1835, c. 40, 4 Stat. 775-776, §§ 1, 2 _. ae
Act of June 7, 1872, c. 322, 17 Stat. 262___._- , .. 473
Act of Dec. 21, 1898, 30 Stat. 755..-........___... ; 29
Clayton Act (38 Stat. 730, 738, 29 U. S. C., Bee. 52)... 34, 80
Act of Macch 4, 1915, Sec. 7, c. 153, 38 Stat. 1164 (46
U. 8. C. See. 701)-_-- . -- 31
Home Port Act of February 26, 1925, Secs. 1 -2, €. . 235, 43
Stat. 947-948 (46 U.S. C., Sees. 18, 1012)_...-_______- 48
Norris-LaGuardia Act of March 23, 1932, 47 Stat. 70 (29
U.S. C., Sees. 101-115) ........-- A hs a3e 7 Res nie 35
Railway Labor Act, 48 Stat. 1185 (45 U. S. C., Sec. 152)
SPN as eg ee ara Ce oe oes bade cumn Seaway 66
National Labor Relations Act (Act of July 5, 1935, 49 Stat.
449, 29 U.S. C., See. 151, et seq.):
Sec. 2 (3)__.-. ap Fic SEE ol _. 20,70
_} ees uy. epee 76
ee ae uee 8 oe eines’ Late 7
fe Ge dab wids One tlie tes aha ba 71
i he oo ae i a Oe 71
~ i, 3 ee SR DI ny Sy A Peer eatin 71
we ee Ne 2 ci one NA ores Prec cy ere 71
a as 3 ig os dn a afr gd ai ho ahaa wa os 72
Vv
Statutes—Continue‘l. Page
Merchant Marine Act, 1936, 49 Stat. 1985, as amended in
52 Stat. 965, 46 U. S. C. §§ 1251-1262) Tae
Criminal Code §§ 292, 293 (18 U.S. C., §§ 484, 483)_ 26, 27, 36, 72
Revised Statutes:
eer ERS See Ne 28, 34, 35, 73, 75, 78
Secs. 5359, 5360. __- II ei Ae a ee a P 26
Miscellaneous:
I Rr dg pain oe 68
Arbitration Agreement in Shipping Industry, Labor Relations
Reporter, vol. 9, No. 18, pp. 463-464._.........-.---- 51
C. 1. O. Maritime Committee and National Maritime Union
of America, Who's Guilty (May 1940), p. 24. _..--.---- 24, 25
2 Congressional Globe 265_-.-.._. - -- RHEE DA pe ape 28
28 Cong. Rec. 6286-_-_- en ree en a eS elke 29
ech tied ocas keno dates chbewe news 30
ees ea ceaskaeendidencsmes ans 30, 38
Employee Misconduct under the Wagner Act; Developments
since the Fansteel Case, 39 Col. L. Rev. 1369__-__- _---- 53
Federal Coordinator of Transportation, Section of Labor
Relations, Hours, Wages, and Working Conditions in
Domestic Water Transportation (September 1936), pp.
221-223... -- a ca a ae A le ae el nd ae tn 52
Hearing before House Committee on Merchant Marine and
Fisheries, 68th Cong., 2d Sess., January 26, 1925, Home
Ports of Vessels of the United States, pp. 16-17. ....---- 48
Hearings before the House Committee on Merchant Marine
and Fisheries, 75th Cong., Ist Sess., on H. J. Res. 121
and H. J. Res. 143, Exhibit entitled Report on the Status
and Working Conditions of Seamen in the American
Moerchan@ee P. 108..........-.-.---.------------ 49
Hearings before the Senate Committee or Commerce, 74th
Cong., Ist Sess., on 8. 2582, pp. 432-434. _........--.-- 51
Hearings before Senate Committees on Commerce and
Education and Labor, 75th Cong., 3d sess., pp. 974-975 - 52
Hohman, Maritime Labour in the United States, Interna-
tional Labour Review voi. 38, (International Labor
Office, Geneva, August 1938)... - = __.-.. 25, 39
H. Doc. 392, 75th Cong., 2d Sess., U. Ss. Maritime Com-
mission, Economic Survey of the American Merchant
Marine (Nov. 10, 1937), pp. 46-49- - - - 24, 52
H. Rep. 1657, 55th Cong., 2d Sess._........-.-.- _.... 30,38
H. Rep. 645, 62d Cong., 2d Sess... _ _- & es Rie ent Bact 31
H Rep. 852, 63d Cong., 2d Sess _ - ae 32
Landis, A Note on Statutory Interpretation, 43 Harv. ee
Rev. 886... . 39
Lorwin & W ubnig, Laber Relations Boards (Brookings Insti-
Ce oe ae eee iwiteeeresséeewaiiek © 65
Maritime Arbitration, Business Week, Jan. 10, 1942, p. 69_- 51
VI
Miscellaneous—Continued Page
Maritime Labor Board, Report to the President and to the
Congress, Mar. 1, 1940... .. 51, 52
National Mediation Board, First Annual Report (1935) -. 66
"Proceedings of the Joint Shipping Industrial Conference,
SN BE paiacicdks dawews dud cds bowen bieees 51
Radin, Statutory Interpretation, 43 Harv. I. Key, ae 39
Report of the Director of Marine and Dock Industrial
Relations Division, U. 8. Shipping Board, Marine and
Dock Labor: Work, Wages, and Industrial Relations Dur-
ing the Period of the War (1918), pp. 15-27, 37, 40, 45-47,
164__ eae 51
Sen. Doe. No. 211, 63d Cong., ‘Ist Sess..... ale th aie ea 32
S. Rep. 832, 54th Cong., Ist Sess...............--.-.-..- 32
Taylor, The Sailors’ Union of the Pacific, pp. 46-49_- - _. - - 44
The Trades Unionist, American Federation of Labor,
Washington, D. C., Jan. 17, 1942, p. 8.._.-.---------- 51
Third Annual Report of the National Labor Relations Board -
(1938) - - vibes 65
U. S. Department of Labor, Bureau of Labor Statistics,
Bulletin No. 342, JI:nternational Seamen’s Union of
America: A Study of Its History ard Problems, pp. 4-6,
EER ikl eb CRITE nee A eR oe NPE 39, 44
U.S. Department of Labor, Bureau of Labor Statistics,
Laws and Agreements Governing Working Conditions
Among American Seamen, Monthly Labor Review, Vol.
10, pp. 1075, 1094 (May 1920)__.-----.---.. 25
U. S Maritime Commission, Economic Survey of ‘Coast-
wise and Intercoastal Shipping (March 15, 1939), pp.
Guthe Supreme Court of the Hnited States
OcroBeR TERM, 1941
No. 320
SoUTHERN STEAMSHIP COMPANY, PETITIONER
v.
NarionaL Lasor RELATIONS Boarp
AND
NATIONAL MARITIME UNION OF AMER‘CA, INTER-
VENOR
ON WRI’ OF CERTIORARI TO THE U*‘ ITED STATES CIRCUIT
COURT OF APPEALS FOR THE THIRD CIRCUIT
BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD
OPINIONS BELOW
The opinions of the Circuit Court of Appeals
(R. 769-785) are reported in i20 F. (2d) 505.
The findings of fact, conclusions of law, and order
of the National Labor Relations Board (R. 14-
44) are reported in 23 N. L. R. B. 26.
JURISDICTION
The decree of the Circuit Court of Appeals (R.
786-782) was entered on May 20, 1941. The peti-
(1) .
2
tion for a writ of certiorari was filed on July 30,
1941, and was granted on October 13, 1941. The
jurisdiction of this Court rests on Section 240 (a)
of the Judicial Code, as amended by the Act of
February 13, 1925, and Section 10 (e) and (f) of
the National Labor Relations Act.
QUESTIONS PRESENTED
1. Whether under the National Labor Relations
Act seamen may be discharged for having engaged,
as a result of their employer's unfair labor prac-
_tices, in a peaceful strike on board the vessel on
which they worked, which at the time of the s*trike
was safely moored to the dock in a port of the
United States.
2. Whether there is substantial evidence to sup-
port the Board’s finding that the signing off of
shipping articles did not terminate the tenure of
employment of petitioner’s seamen.
3. Whether the Board abused its discretion in
refusing to permit the presence of representatives
of the employer at an election held under Section
9 of the National Labor Relations Act to deter-
mine collective bargaining representatives.
STATUTE INVOLVED
The statutory provisions primarily involved are
Sections 8 and 9 of the National Labor Relations
Act (Act of July 5, 1935, ¢. 372, 49 Stat. 449,
29 U.S. C., See. 151, et seq.). These provisions,
and other statutes referred to in the argument, are
set forth in the Appendix, infra, pp. 70-82.
a
3
STATEMENT
Petitioner owns and operates seven vessels carry-
ing freight between the ports of Philadelphia, Penn-
sylvania, and Houston, Texas (R. 292, 669-670).
On June 11, 1937, International Seamen’s Union of
America, affiliated with the American Federation
of Labor, filed with the Board a petition re-
questing an investigation and certification of rep-
resentatives for the unlicensed personnel of peti-
tioner and other steamship companies, pursuant to
Section 9 (c) of the National Labor Relations
Act. After a hearing in which it appeared that
both the International Seamen’s Union and the
National Maritime Union of America, affiliated
with the C. I. O. (hereinafter sometimes called the
Union), claimed to represent a majority of these
employees, the Board on July 16, 1937, ordered
that an election be held (R. 19, 671; see In the
Matter of American France Line et al., 3 N. L.
R. B. 64). An election was thereupon conducted
by the Board’s regional director on the seven ves-
sels owned by petitioner (R. 759-761). The re-
port of the regional director, issued on January
3, 1938, showed that of 134 eligible voters, 73
voted for National Maritime Union, 4 for Inter-
national Seamen’s Union, and 51 for neither
(R. 761).
Because of the refusal of the labor organizations
named on the ballot to consent to the presence of
a representative of the petitioner at the balloting,
4
the Board did not permit petitioner to have its
representative present at the balloting conducted
on the first of the seven vessels, namely, the S. 8.
City of Houston, which took place on October 13,
1937 (R. 763). Thereafter, in respect to the bal-
loting which took place at later dates on the
remaining six ships, the labor organizations with-
drew their objections to the presence of petitioner’s
representatives at the election and petitioner’s
representatives were permitted to be present (R.
673). Petitioner filed objections to the election
and to the Regiona! Director’s report on the ballot,
alleging that such election should be declared null
and void because its representative was excluded
from the balloting on the 8. S. City of Houston
(R. 76-78, 762-764). On January 26, 1938, the
Board dismissed petitioner’s objections and certi-
fied the Union as the exclusive representative of all
employees of petitioner within the appropriate
unit (R. 671-674).
Subsequently the Union filed charges that the
company had refused to bargain with it, had ter-
minated the employment of a number of employees
_because of their membership in and activity on
behalf of the Union, and had thereby violated See-
tions 8 (1), (3), and (5) of the Act (R. 60-63).
The Board issued a complaint (R. 63-67), held a
hearing, and made findings in which it held these
charges to be substantiated (R. 14-39). The per-
o
tment facts as found by the Board and as disclosed
by the evidence are as follows:
The refusal to bargain.—After the Board’s cer-
tification of January 26, 1938, the Union made
futile efforts to get petitioner to bargain with it.
Shortly after the issuance of the certification the
Union representatives in Houston and in Philadel-
phia requested a collective bargaining conference
(R. 21, 590-592, 92-94). The representative in
_ Houston was informed that the matter would be
transmitted to Philadelphia; the representative at
Philadelphia was informed by Sherry, the Marine
Superintendent, that the matter was in the hands
of petitioner’s attorneys (1bid.). No further com-
munications being received in answer to these
requests, the representative in Philadelphia wrot«
Sherry (R. 21, 94, 112, 117), unsuccessfuliy sought
to reach him by telephone several times in Febru-
ary and March (R. 21, 96-97), and finally called at
his office but was refused permission to enter (R.
22, 97-99). Finally, on August 23, 1938, seven
months after the certification and a month after
the strike of July 18, to be discussed below, and
after another letter to the company (R. 22, 675),
the company replied that until the dispute arising
out of the election was settled by the Board and the
courts, the question of an agreement with the
Union ‘‘is premature”’ (R. 22, 676). Sherry testi-
fied that this had been the company’s position
since the date of the certification on January 26
6
(R. 22, 543-545).* On the basis of these facts the
Board found that since on or about January 26,
1938, the petitioner had refused to bargain col-
lectively with the Union and that it had thereby
interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in
Section 7 of the Act (R. 22).
The strikes of July 18 and July 25, 1938, and
the subsequent discharges.—On June 30, 1938, the
crew of the 8S. S. City of Fort Worth signed on
shipping articles at Philadelphia, Pennsylvania,
for a voyage to such southern coastwise ports as
the master should direct and back to Philadelphia,
for a term not exceeding six months (R. 681-683).
The shipping articles provided that (R. 681)—
the said crew agree to conduct themselves
in an orderly, faithful, honest, and sober
manner, and to be at all times diligent in
their respective duties, and to be obedient
to the lawful commands of the said Master,
* * * in everything relating to the ves-
sel * * * whether on board, in boats,
or on shore.
The ship sailed on July 1 with a crew of 27
seamen, 19 of them unlicensed personnel (R. 127,
318, 683). On Thursday, July 14, the ship docked
at Houston, Texas, and was “‘tied right up against
the dock”’ so that persons could walk directly from
‘The basis of the company’s objection was the refusal of
the Board to permit the company’s representative to be pres-
ent at the election conducted on the S. S. City of Houston
(R. 114).
7
the ship onto the dock (R. 128, 137, 144-147).
The petitioner’s Houston office building was im-
mediately adjacent (R. 146). The ship was
scheduled to remain in port several days discharg-
ing the cargo brought from Philadelphia and tak-
ing on cargo for the return trip (R. 142, 170-171,
292-293, 432, 483, 670). The actual unloading and
loading of -~rgo was performed by stevedores (R.
132, 142, 269-270, 670). ©
During the stay of the ship at Houston the crew
continued to live on board just as during.a trip at
sea, sleeping in their bunk rocme and eating in the
mess hall (R. 326, 405). They performed eight
hours of ‘‘general ship work”’ a day and otherwise
were free to enjoy themselves as they saw fit in
their bunk rooms or on the poop deck, or, with the
permission of the ship’s officers, to go on shore
(R. 143, 222, 239, 269, 272, 325, 452, 513).’
* The duties during the stay in port of the five persons dis
charged were as follows: Smith was a mess boy and as such
performed the same duties as when the ship was at sea, serv-
ing meals, washing dishes, making beds, and cleaning the
mess hall and bunk rooms (R. 205-207, 407-409, 423-425, 427,
683). Tracey and Ferguson were firemen and oilers (R. 122,
131, 134, 177, 683). They were supposed to provide the
steam necessary for the sanitary and safety appliances and
for operating the winches used in loading cargo; also to
keep the winches greased and oiled (R. 131-132, 182, 352).
Pfuhl and Warren were able seamen, and while the ship
Was in port engaged in such duties as painting the smoke-
stack or sides of the ship; cleaning the pilot house, and
other odd jobs (R. 213, 269, 271, 272, 280, 301, 683).
8
On Saturday, July 16, some members of the
crew went to the Union hall at Houston and ar-
ranged for a meeting to be held on Sunday, July
17, between the Union members of the crew and
Union representatives in Houston for the purpose
of ascertaining what progress the Union had made
towards securing collective bargaining with peti-
tioner (R. 593-594). When the crew learned at
the meeting on Sunday, July 17, that, despite the
Union's certification by the Board almost six
inonths before, the petitioner still refused to recog-
nize it, they voted to call a strike at eight a. m.
the next morning for the purpose of inducing
petitioner to recognize and bargain with the Un-
ion and issue boarding passes te its shore dele-
gates (R. 128-13], 179-181, 241, 593-596). At
the meeting it was agreed that the men would
keep watch ‘‘to see that there was no fire or any-
thing,’’ would permit the stewards’ department te
operate, and would at ail times maintain and fur-
nish sufficient steam to operate all of the ship’s
sanitary and safety devices, but not for operating
the winches fer loading cargo (R. 130-131, 595-
596).
‘The company conceded that the issuance of passes to
union delegates would have signalized recognition of the
Union (R. 541-542). Petitioner has raised no issue with
respect to the inclusion by the strikers of this demand. Cf.
Naticial Labor Relations Board vy. Cities Service Oil Co.,
122 F. (2d) 149 (C. C. A. 2).
9
About eight a. m. on Monday, July 18, while the
vesse] was still moored to the dock, the strike
began when Tracey, the fireman and oiler on the
four a.m. to eight a. m. shift and the Union dele-
gate for the engine room, failed to turn the steam
‘‘on deck’’ for the purpose of loading cargo (R.
126, 128, 131-132, 180-181, 197, 219, 269). The first
assistant engineer, Pool (or Paul), inquired of
Tracey as to why there was no steam on deck and
was told that the ship’s unlicensed personnel was
on strike for Union recognition (R. 132). Pool
stated that he would put the steam on deck him-
self, whereupon Tracey replied, ‘‘Well, if you do,
I will have to take the fireman out of the fireroom’’
(R. 132). 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
(R. 133). At this point Ferguson appeared to
relieve Braun whose watch had terminated (R.
134). Tracey told Ferguson that the strike had
begun, so Ferguson refused to fire but remained
present ‘‘to see that the steam wouldn’t get too
low so that the auxiliaries wouldn’t stop” (R. 182).
About 8: 15 or 8: 25 the second assistant engineer,
Robinson, came in to fire up enough steam for the
cargo loading, and told Ferguson, ‘‘Go on up, I will
take care of things down here’”’ (R: 184, 182,
355-356, 380-382). Tracey and Ferguson, after
securing the express statement of Robinson that he
would be responsible for maintaining the steam for
10
the safety and sanitary devices, left the engine
room and joined the eleven other strikers who
were seated on the poop deck, the general place of
meeting and recreation for the seamen when off
duty (R. 134-137, 182, 270-272, 355-356, 500).
The ship’s officers, together with the assistance of
the six unlicensed seamen who did not participate
in the strike, then proceeded with the necessary
operations for the loading of cargo (R. 317-319,
355-356, 381-382). The strikers did not make the
slightest attempt to interfere with any of the nor-
mal operations on shipboard performed by the
officers and nonstriking members of the crew
(R. 290-292, 293, 323-324, 375, 387-388, 404, 499-
502). All the men did was merely to sit on the
poop deck (R. 135-137, 241, 242, 290-291, 387-388,
500, 501-502).
The captain not being on board at the time
(ht. 431-4382), the chief mate, Helland, who was
in charge of the ship during the captain’s absence,
at once went to the poop deck to inquire what the
trouble was (R. 268-272, 286-288). Warren, the
Uiuon delegate for the deck section, acting as
spokesman for the men, complained that ‘‘the
company had not been fair to them in regards
to the election they had, they had won out, but the
eempany didn’t pay no attention to it’? (R. 127,
268-272, 286-288). Warren stated that the Union
representatives were on the docks, that Helland
shouid go dewn and talk to them, that the men
11
were not going to work until the petitioner recog-
nized the Union (R. 139, 268-272, 286-288).
When the ship’s captain, Rudan, came on board,
about 10: 30 a. m., he tried to persuade the strikers
that their conduct was unfair to him (R. 165-
166, 219-220). The strikers, however, assured
him that their action ‘‘was not taken against any
officer cf the ship, it was strictly against the com-
pany, we were striking for union recognition”’
(R. 219-220, 209-210, 165-169, 433, 483). Cap-
tain Rudan then advised the men that their con-
duct was in Violation of the ship’s articles which
they had signed, and ordered them, individually
and collectively, to resume their respective duties
(R. 138, 165-166, 273-274, 382-383, 431-435). The
strikers refused, asserting that the articles would
not bar their refusal to work where the company
had ‘‘done something that was wrong’”’ by refusing
to bargain and that they had a right to strike when
the ship was safely moored in an American port
(R. 483, 162, 219-220, 434-435, 440). Captain
Rudan then brought aboard a deputy United
States Shipping Commissioner who, reading from
the shipping articles, advised 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 cne’’ for not obeying orders
(R. 437-440, 681).
440963— 42-——2
12
The men, nevertheless, persisted in their strike
and throughout the day remained seated on the
poop deck in an orderly manner (R. 137, 241, 242,
290-291, 375, 387-388, 499-502). They did not
interfere with the work performed by the other
members of the crew or the sievedores (R. 404).
At no time were they ordered to leave the vessel
(R. 325, 404, 513). Indeed, the permission of the
master was sought and obtained before any of
them left to go on the dock (R. 143, 513). At
noentime the messboy, Smith, resumed his duties,
and the twelve other strikers, with the captain’s
permission, joined the rest of the crew in the din-
ing room where Smith served all the crew, both
strikers and non-strikers, their dinner (R. 203, 206-
207, 423-425). After diner the strikers returned
to the poop deck (R. 137, 242). It was admitted by
an officer that their refusal to work in no way
endangered the safety of the ship (R. 387).
Union representatives were present on the dock
throughout the day ready to negotiate with any
of the petitioner’s representatives, as the strikers
repeatedly pointed out to the ship’s officials (R.
137, 139, 147, 242-243, 272, 287, 589, 603-605).
‘While Smith regarded himself as a striker (R. 198), the
extent to which he failed to perform his normal duties ap-
pears to have been slight. He had served breakfast and
cleaned up the breakfast dishes before he joined the strikers
on the poop deck (R. 203, 205-206). He served dinner to
the whole crew (R. 423-424). Apparently his only omis-
sion was the failure to make up three cabins (R. 206,
427-429).
13
Late that afternoon, petitioner’s local attorney,
after telephoning petitioner’s marine snperintend-
ent in Philadelphia (R. 515, 538-540, 640-642), ad-
vised the Union’s attorney that if the strike were
called off he would recommend to petitioner that
passes be issued to the shore delegates to board
petitioner’s ships (R. 616-618, 642-643). There-
upon, Captain Rudan, after conferring with the
petitioner’s local agent and the shore delegates,
gave the strikers permission to leave the ship for
the purpose of conferring with their shore dele-
gates upon the dock in order to see if the strike
could be ended (R. 142-147, 242-243, 450-452, 489-
490, 513). Relying upon the assurances given the
Union attorney by petitioner’s attorney, the strik-
ers decided to return to work at once (R. 142-147,
620-621).° The strike ended at seven p. ni. on the
same day when the employees all went back to work
(R. 147-149, 274-275, 490). The loading of the
eargo had not been delayed by the strike and at
nine p. m. that night the ship sailed on schedule
(R. 147-149, 275, 292-293, 483).
* One of the seamen stated: “He said everything was all
right, he said our lawyer and their lawyer is going to get
together, and by the time we get back to Philadelphia, every-
thing will be straightened out, we will have passes for our
delegates aboard by the time we reach Philadelphia, and by
no means no one will be discharged when they got there” (R.
147),
14
All members of the crew, including the strikers,
performed their duties on the voyage back to
Philadelphis. in a competent manner (R. 375-377,
388, 502). However, when the vessel docked at
Philadelphia on July 25, 1938, and the crew sigaed
off their shipping articles, five of the employees
who engaged in the strike, namely, Warren, the
Union delegate of the deck section; Tracey, the
Union delegate of the engine section; Smith, the
Union delegate of the steward section; Ferguson
and Pfuhl, were discharged because of their par-
ticipation in the strike (R. 126-127, 151-155, 185-
186, 195, 201-202, 223-225, 284, 289-290, 298, 338,
* 391, 394, 493-494, 520-521, 533-534).
During the voyage home the Union members,
' anticipating the possibility that some might be
discharged, had agreed that all would strike if
any were let out by the company (R. 150-151, 185,
244). Asa consequence of the discharge of the five
men above referred to, when the ship docked in
Philadelphia on July 25th all of the remaining
Union members but one struck in protest ° (R. 26,
156-158, 202, 226, 245, 248-249, 252-256, 390.
On the basis of the above facts the Board found
that the strike in Houston was caused by the peti-
tioner’s refusal to bargain with the Union (R. 25),
and that accordingly the discharge of the five sea-
*One of these men was subsequently reinstated (R. 136,
253-254, 340-341).
15
men because of their participation in such strike
was unlawful (R. 31) ; and that the strike in Phila-
delphia was likewise attributable to petitioner’s
unfair labor practices since brought on by the dis-
charge of the five men referred to (R. 26). The
Board further found that petitioner’s entire course
of conduct had interfered with the employees’ exer-
cise of the rights guaranteed by Section 7, in vio-
lation of Section 8 (1) of the Act (R. 40).
The Board’s order required petitioner to cease
and desist from its unfair labor practices, to bar-
gain collectively with the Union upon request, to
offer reinstatement with back pay to the five sea-
men whose discharge violated Section 8 (3) and
(1), to offer reinstatement upon application te
the seamen who went on strike on July 25, and to
post appropriate notices (R. 40-44).
Thereafter, petitioner filed in the court below
its petition to review and set aside the Board’s
order and the Board answered requesting en-
forcement (R. 1-13, 45-52). The case was argued
on October 8, 1940, before three judges (R. 767-
768); on February 7, 1941, the case was restored
to the argument list for rehearing before the court
en banc (R. 768-769). On May 6, 1941, the court
below handed down its opinion directing enforce-
ment of the Board’s order with a modification
not here material, Judge Clark dissenting (R.
769-780). The court’s decree was entered on May
20, 1941 (R. 786-789).
16
SUMMARY OF ARGUMENT
I
A. Since the discharges resulted from a strike
brought on by petitiorer’s refusal to bargain, an
unfair labor practice, there would clearly have
been a violation of the National Labor Relations
Act if the strike had occurred on land. The fact
that the crew vemained on the vessel, even though
in a sitting position, instead of deserting, does not
render their conduct unlawful. Since the men
were not ordered to leave the ship and there was
no illegal seizure of property or fo. 2e or violence,
but merely a use of the quarters available to the
mer, the doctrine of the Fansteel case does not
apply.
B. 1. Nor does the fact that the strike involved
the refusal of seamen on a ship to obey orders
of the master in the present circumstances justify
the discharges or preclude the Board from order-
ing reinstatement. An examination of the his-
tory of legislation relating to seamen manifests
a congressional understanding that a peaceful
strike for the purpose of compelling an employer
to obey the law while a vessel is in a safe position
in an American port is uot unlawful. The cases
are consistent with this view. The considerations
underlying the requirement of strict discipline for
seamen do not apply in such a situation.
17
2. Even if the strikers’ conduct constituted a
technical or minor violation of the law the Board
would have the power to order reinstatement.
The Fansteel decision has properly not been re-
garded as holding that all unlawful conduct, how-
ever trivial and however provoked by the employer,
forfeits an emplovee’s rights under the Labor
Relations Act.
C. Nor does the fact that the seamen signed
shipping articles requiring them to obey their offi-
cers mean that the strike was unlawful. Such a
provision, required by law for seamen, is implicit
in any contract of employment and does not con-
stitute an agreement. not to strike. In any event,
by continuing to employ the men after the strike,
petitioner waived the alleged breach of contract
by them.
II
Pexitioner’s contention that the exnployment re-
lationship terminated upon the signing off of
articles at the conclusion of the voyage is unsound.
The Board’s finding that the tenure of employment
continued is amply supported. National Labor
Relations Board v. Waterman Steamship Corp.,
309 U. S. 206. Even if the employment relation-
ship terminated, the failure to rehire the men
nevertheless was discriminatory and, therefore, an
unfair labor practice. Phelps Dodge Corp. v.
National Labor Relations Board, 313 U. 8. 177.
18
lif
Petitioner had no right to have a representative
present at the election conducted by the Board
among the seamen. Accordingly its refusal to
recognize the certification and bargain with the
union certified was unjustified and unlawfui.
|
ARGUMENT
I
THE DISCHARGE OF SEAMEN BECAUSE THEY ENGAGED
IN A PEACEFUL STRIKE ON A SHIP MOORED SAFELY
IN A DOMESTIC PORT FOR THE PURPOSE OF INDUCING
THEIR EMPLOYER TO COMPLY WITH THE NATIONAL
LABOR RELATIONS ACT IS AN UNFAIR LABOR PRACTICE
WITHIN THE MEANING OF THAT ACT
A. THE BOARD'S ORDER WOULD HAVE BEEN PROPER IF A SIMILAR
STRIKE HAD OCCURRED ON SHORE
Petitioner’s brief has not denied that it has
refused to bargain with the Union, that the strike
in Houston was brought on by its refusal to bar-
gain, or that the discharges resulted from the
strike. Nor can there be doubt that the Union
—
’ Petitioner apparently has abandoned the contentions
made before the Board, but unsupported by the record, that
the seamen were discharged for other reasons than their par-
ticipation in the strike. Petitioner still contends, however
(Br., pp. 27-32), that the seamen were not “discharged,” but
that their employment terminated automatically with the
expiration of the shipping articles at the end of the voyage.
See pp. 62-64, jnfra,
19
represented the majority of the employees,’ or that
the refusal to bargain was an unfair labor prac-
tice. These facts are established by the record
beyond the possibility of contradiction.
Petitioner does not dispute the well-established
proposition that when a strike is caused by an
unfair labor practice, the Board may require the
reinstatement of employees discharged because of
their participation in the strike. National Labor
Relations Board v. Remington Rand, Inc., 94 F.
(2d) 862 (C. C. A. 2), certiorari denied, 304 U.S.
576, 585; National Labor Relations Board v. Stack-
pole arbon Co., 105 F. (2d) 167 (C. C. A. 3),
certiorari denied, 308 U. S. 605; Republic Steel
Corp. vy. National Labor Relations Board, 107 F.
(2d) 472 (C. C. A. 3), certivrari denied on this
point, 310 U. S. 655; Black Diamond S. S. Cerp. v.
National Labor Relations Board, 94 F. (2d) 875
(C. C. A. 2), certiorari denied, 304 U. S. 579; Na-
tional Labor Relations Board v. Colten, 105 F.
(2d) 179 (C. C. A. 6); M. H. Ritewoller Co. v. Na-
tional Labor Relations Board, 114 F. (2d) 482,
437 (C. C. A. 7). Indeed, in National Labor
Relations Bourd v. Mackay Radio & Tel. Corp.,
304 U. S. 333, this Court held that, under Section
er
* Petitioner has attacked the validity of the certification cn
technical grounds but does not deny that a majority of its
unlicensed personnel desired the Union to represent them
(see pp. 64-68, infra).
20
2 (3),° the protection of the Act was available even
to persons who had struck for other reasons.
Petitioner argues (Br. p. 15), however, that the
strike“th this case was a ‘‘sit-down,’’ and that ac-
cordingly National Labor Relations Board v.
Fansteel Metallurgical Corp., 306 U. 8S. 240, is
applicable.
Apart from the fact that the strikes in each case
have loosely been characterized as ‘‘sit-downs,’’
this case differs radically from the F'ansteel case.
The Fansteel opinion shows that the Court was
not concerned with any mere ‘‘sitting-down,’’ but
with the illegal seizure and retention of the plant
by force and violence and the refusal of the strikers
to permit the owner to enter its property or to
vacate the premises after they were discharged.”
* Section 2 (3) reads, in part, as follows:
“When used inthisAct— * * *
(3) the term ‘employee’ shall include * * * any in-
ai. idual whose work has ceased as a consequence of, or in
onnection with, any current labor dispute or because of any
unfair labor practice * * *.”
*? Examination of the Fansteel opinion shows that the
Court never described the strikers’ conduct as “sitting down,”
but as “the seizure and retention of respondent’s property”
(366 U. S., at 252); illegally taking and holding posses-
sion of respondent’s property (zbid.) ; “the seizure and hold-
ing of the buildings” (d., at 253) ; the “ousting of the owner
from lawful possession” (ibid.); “resort to force” (tbid.) ;
“the seizure and holding of its buildings” (7d., at 244) ; “seiz-
ing or committing depredations upon the property of their
employer” (/bid.) ; “acts of trespass or violence against the
employer's property” (¢d., at 255); “illegal seizure of the
buildings” (id., at 256) ; “resort to force and violence” (#d.,
ut 258) ; “seizure of the plant” (éd., at 259).
21
Peninsular & Occidental S. S. Co. v. Nattonal
Labor Relations Boayd, 98 F. (2d) 411 (C. C. A.
5), certiorari denied, 305 U. S. 653, upon which
petitioner also relies (Br. p. 19), involved, the
court thought, the seizure of property, a vessel, by
strikers who did not merely sit down, but ‘‘took
possession of the ship’’ ana ‘‘contemplated
* * * sabotage’’ (98 F. (2d), at 413).”
Here the striking seamen did not seize or take
or retain possession of anything, or interfere
with the operation of the ship by other persons;
they merely remained in the quarters assigned
to them and refused to work. Petitioner did not
discharge them or order them to leave the vessel.
Indeed, petitioner inferenti° ly conceded that the
conduct of the strikers was Ic ‘s serious because they
did not leave the ship thereby becoming deserters.”
** Tt is unlawful, of course, for the men to remain on board
against the will of the owners. The cases of 7’he Oakmar,
20 F. Supp. 650 (D. C. Md., 1937), and 7’he Losmar, 20 F.
Supp. 887 (D. C. Md., 1937), cited by petitioner (Br., pp.
20-21) upheld the right of the owner of ships to recover
the ships by possessory libels where the seamen refused to
vacate. The National Labor Relations Board held that the
owner of The Oukmar and The Losmar was justified in dis-
charging the employees who refused to vacate these ships
and that such a discharge did not constitute an unfair labor
practice. Jn the Matter of Calmar Steamship Corporation,
18 N.L. R. B. 1,
'* See Transcript of oral argument before the Board, pp.
4142, and R. 30n. For the strikers to have left the ship
would have constituted desertion, punishable by forfeiture
of wages alresdy earned and clothing and effects remaining
on board (46 U. S. C., Sec. 701).
22
It would indeed be anomalous to hold that strik-
ing seamen who avoided the statutory offense of
desertion by remaining on board the vessei in ae-
cordance with the obvious desire of the master
were by reason of that very fact guilty of an un-
lawful ‘‘sit-down’’.
The ship, of course, was the home of the sailors,
even when in por‘, as petitioner’s officers admitted
(R. 326, 405) ; the master agreed (R. 500) that the
poop deck, upon which the strikers sat, was the
normal gathering place for the men when off duty.
A comparable situation ashore, which would ob-
viously not be deemed unlawful, would arise if
striking lumbermen living in company-owned
facilities remained peaceably in or just outside of
their bunkhouses, even if they spent most of the
time sitting. There would not even be a technical
trespass until and unless the company ordered
them to leave.
National Labor Relations Board v. American
Mfy. Co., 106 F. (2d) 61 (C. C. A. 2), affirmed
309 U. S. 629, is closely in point. The Cireuit
Court of Appeals there stated (p. 68):
We do not. regard the action of these or
other employees in standing around the
premises for a period of not more than
two hours, while an attempt was being made
to persuade the Company to fix a date for
collective bargaining with T. W. O. C., as
in the nature of a sit-down strike which
would permit the termination of the em-
23
ployee, relationship. They certainly were
not claiming to hold the premises in defi-
ance of the right of possession of the owner
and we regard the case as no different from
that of an ordinary strike where work has
ceased because of an unfair labor practice.
B. THE FACT THAT THE STRIKE INVOLVED THE REFUSAL OF SEA-
MEN ABOARD SHIP TO OBEY ORDERS OF THE MASTER DID NOT, IN
THE PRESENT CIRCUMSTANCES, JUSTIFY THE DISCHARGES OR
P.:SCLUDE THE BOARD FROM ORDFRING REINSTATEMENT
Petitioner’s argument stresses the fact that the
strike involved the refusal of seamen aboard a
ship to obey orders of their superiors.
It is not claimed that anything in the National
Labor Relations Act places seamen in a different
category from other employees. The Act has fre-
quently been applied tothem. E.g., National Labor
Relations Board v. Waterman Steamship Corp.,
309 U. S. 206; Black Diamond S. S. Corp. v. Na-
tional Labor Relations Board, 94 F. (2d) 875
(C. ©. A. 2), certiorari denied, 304 U. S. 579.
Indeed, the Merchant Marine Act, 1936, as
amended in 1938, expressly ratified the applica-
tion of the Labor Relations Act to seamen (52
Stat. 965, 46 U.S. C., Sec. 1252, Appendix, mfra,
pp. 81-82).
Petitioner’s contention is that because of the
necessity for discipline and obedience to the mas-
ter’s commands in order to insure the safety of the
ship, disobedience is under all circumstances un-
lawful and a discharge for such disobedience per-
24
missible."* It is claimed that because the need fer
obedience exists when a ship is at sea or is not ina
safe position in port, the authority of the master
must always be recognized, both as a matter of
general disciplinary policy and because of the diffi-
culty of determining when a ship is in a safe
position." The fact that the employees’ disobe-
dience consisted of a peaceful strike brought on
for the purpose of inducing petitioner to obey the
law, while the ship was tied to the dock and in no
8 Petitioner (Br. p. 25) states that the Department of
Commerce “considers lack of discipline the main cause of
unsafety” of American vessels, citing a Maritime Commis-
sion Survey of the Merchant Marine. This report, however,
shows that unsatisfactory labor relations in the maritime
industry, just the same as those on land, arise from suppres-
sion of the right to organize and bargain collectively ard
that the solution is not penalization of workers who seek to
achieve these rights -but insistence that employers accord
them. House Doc. No. 392, 75th Cong., 2d Sess., United
States Maritime Commission, Economic Survey of the
American Merchant Marine (November 10, 1937), pp. 46-
49.
‘It does not follow, of course, that lack of discipline at
sea will result from the assertion by seamen of their rights
whiie they are in port. Seamen’s unions themselves have
explicitly recognized this. A pamphlet published by the
C. I. O. Maritime Committee and the National Mari-
time Unien of America, dealing with safety at sea, states:
“Maritime workers, no less than shipowners, subscribe
wholeheartedly to the tradition that when a vessel is under
way or is not in a safe harbor, the seaman must obey the
orders of his superior. No seaman questions this. He has
a greater interest in safety-at-sea than the shipowner. The
operator has nothing to lose but a ship; the seaman has his
life.” (The C. I. O. Maritime Committee and the National
25
way in danger, is apparently not thought by peti-
tioner to be material.
The Government’s position is (1) that in the
circumstances of this case the strikers’ conduct
was not illegal, and (2) that even if in a technical
sense it were, the strikers would not have forfeited
their right to reinstatement under tbe National
Labor Relations Act.
1. In the circumstances of this case the strikers’ conuuct was
not illegal
Petitioner’s argument that the strikers’ conduct
was illegal seems to rely mainly on cases under the
statute prohibiting revolts and mutiny (4 Stat. 775,
Maritime Union of America, Who’s Guilty? (May 1940)
p. 24.)
The position of the United States at a conference of the
International Labor Office at Geneva in 1920 has been de-
scribed as follows:
“The requirements of the sea service make it necessary
that more stringent disciplinary measures be applied to sea-
men at sea than to men in other classes of industry. A dis-
tinction should be made between the service of seamen while
at sea and while in a safe harbor. In the former case suit-
able penalties should be provided to enforce obedieace and
the efficient performance of their duties by seamen, but while
in a safe harbor seamen should be subject to only such civil
liabilities as tnose to which other classes of workmen are
subject.” (Laws and Agreements Governing Working Con-
ditions Among American Seamen, Monthly Labor Review,
Vol. 20, pp. 1075, 1094 (May 1920), Government. Printing
Office.)
See Hohman, 2aritime Labour in the United States, In-
ternational! Labour Review, Vol. 38, pp. 190, 199 (Interna-
tional Labor Office, Geneva, August 1938).
26
18 U. S. C., Sees. 483, 484, Appendix, infra, pp.
72-73). The applicability of this and related laws
to the instant case may best be determined by an
examination of the history of legislation in this
field.
(a) The course of legislation.—The first statute
punishing mutiny was the Act of April 30, 1790,
e. 9, 1 Stat. 112-115. Section 8 of that Act pro-
vided that every mariner who ‘‘shall make a revolt
in the ship”’ shall be deemed ‘‘a pirate and felon”’,
punishable by death. Section 12 provided that
any seaman who ‘‘shall confine the master * * *,
or endeavour to make a revolt’’ shall be subject to
three years’ imprisonment.
These provisions were replaced by Sections 1
and 2 of the Act of March 3, 1835, 4 Stat. 775-776,
which have since been reenacted in the Revised
Statutes of 1878," and as Sections 293 and 292 of
the Criminal Code of 1909" without substantial
change, and are still in effect (18 U. S. C., Sees.
484, 483). Since the first compilation of 1878
these sections have borne the titles “Revolt or
Mutiny on Shipboard’’ and ‘‘Inciting Revolt or
Mutiny on Shipboard.’’ They read as follows:
§ 484. REVOLT OR MUTINY ON SHIPBOARD.
Whoever, being of the crew of a vessel of
the United States, on the high seas, or on
any other waters within the admiralty and
® Rev. Stat. 5360, 5359.
® Sections 293, 292 (35 Stat. 1146).
27
maritime jurisdiction of the United States,
unlawfully and with force, or by fraud, or
intimidation. usurps the command of such
vessel from the master or other lawful
officer in command thereof, or deprives him
of authority and command on beard, or
resists or prevents him in the free and law-
ful exercise thereof, or transfers such au-
thority and command to another not law-
fully entitled thereto, is guilty of a revolt
and mutiny, and shall be fined not more
than $2,000 and imprisoned not more than
ten years. |
§ 483. INCITING REVOLT OR MUTINY ON
SHIPROARD. Whoever, being of the crew of
a vessel of the United States, on the high
seas, or on any other waters within the ad-
miralty and maritime jurisdiction of the
United States, endeavors to make a revolt
or mutiny on board such vessel, or combines,
conspires, or confederates with any other
person on board to make such revolt or
mutiny, or solicits, incites, or stirs up any
other of the crew to disobey or resist the
lawful orders of the master or other officer
of such vessel, or to refuse or neglect their
proper duty on board thereof, or to betray
their proper trust, or assembles with others
in a tumultuous and mutinous manner, or
makes a riot on board thereof, or unlaw-
fully confines the master or other command-
ing officer thereof, shall be fined not more
than $1,000, or imprisoned not more than
five years or both.
440963—42——3
28
In the debate in the Senate on the 1835 Act,
Senator Shepley ‘‘moved to strike out the words
in the bill which authorized punishment to be ex-
tended to neglect of duty’’. Senator Clayton,
who reported and explained the bill, ‘‘opposed the
motion on the ground that it was only designed to
apply to conspiracies by the crew to neglect their
duties, so as to endanger the safety of the ship and
crew’’ (2 Cong. Globe 265). [Italies supplied. ]
The motion was defeated and the bill passed with-
out change (id., at 276, 298).
The next pertinent statute dealing with the con-
duct of seamen was the Act of June 7, 1872, e. 322,
17 Stat. 262, 273, which was entitled, inter alia, an
Act “for the further Protection of Seamen’’.
Section 51 of this law, which became Section 4596
of the Revised Statutes of 1878, Appendix, infra,
pp. 73-75, nade liable to punishment seamen who
engaged in any of nine specified offenses. These
included ‘‘first, * * * desertion’’, which was
punishable by imprisonment up to three months;
‘“fourthly, * * * willful disobedience to any
lawful commands’’, punishable by imprisonment up
to two months; “fifthly, * * * continued will-
ful disobedience to lawful commands, or continued
willful negleet of duty’’, punishable by imprison-
ment up to six months; and *‘seventhly, for com-
bining with any other or others of the crew to dis-
obey lawful commands or to neglect duty
* * **' which was punishable by imprisonment
29
up to twelve months. Forfeiture-of wages and the
payment of civil penalties were also prescribed for
these offenses.
The seventh clause quoted might have been con-
strued to prohibit strikes by seamen, as a combi-
nation to disobey lawful commands. This clause
was repealed by the Act of December 21, 1898, 30
Stat. 755, 760-761, and the words ‘‘at sea’’ were
inserted in the fourth and fifth clauses prohibiting
willful disobedience. See Appendix, infra, pp.
75-78. The penalties were also lessened. The
effect of these changes was completely to eliminate
the clause which might have prohibited all strikes
and to limit the prohibition against willful dis-
obedience to situations at sea—when, of course, the
safety of the vessel might be endangered. Pre-
sumably strikes at sea would still constitute will-
ful disobedience, within the meaning of the fourth
and fifth clauses as amended.
That it was the purpose of the 1898 law to give
seamen the same rights as workers on land, except
when considerations of safety prevented, appears
from the explanation of the bill by its sponsors on
the floor of the House. Representative Payne,
who was in charge of the predecessor to the bill
which became law in the following Congress,
stated that ‘‘the committee have stricken out of
the bill every vestige of imprisonment for violat-
ing a civil contract’’ (28 Cong. Rec. 6286). Rep-
resentative McGuire, who had introduced the
30
original bill, stated that the bili ‘tis a great ad-
vance over existing laws’’ in according to sailors
the “rights that are common to American citizens
in all other trades, callings, and occupations under
the American flag,’ and that the bill ‘‘ proceeds
upou the principle that the sailors in our mereheut-
marine service should, in their personal rights, be
placed upon equality with American citizens en-
gaged in other industrial disputes’’ (23 Cong. Ree.
6288).
The discussion in the committee report (H. Rep.
1657, 55th Cong., 2d Sess.) with respect to the pro-
posed changes in the penalties for desertion,” also
throws light upon the congressional understanding
as to the right of seamen to strike. ‘The report
states (p. 4):
* * * Section 20 (4596, R. S.): The
bill itself was a great change from the pres-
ent 'iw in that it left all imprisonment for
desertion in the diseretion of the court, in-
stead of absolute as now. But your com-
mittee have gone further to relieve the mari-
time laws of tlLeir strictness, and have elimi-
nated by their amendment all imprisonment
for a violation of civil contract. They are
not unmindful of the inconvenience and loss
'* The bili as reported to the House abolished imprison-
ment as a penalty for desertion; the Act as passed eliminated
ihis penalty for desertion only in American ports, and
merely reduced the penalty for desertion in foreign ports.
See 32 Cong. Rec, 129-132. The 1915 Act (infra, p. 31)
eitminated the criminal penalty entirely.
31
that may occur to the vessel by reason of the
seaman’s disregard of the obligations of his
agreement. In the case of employers on
railroads great inconvenience and loss often
follow a strike, but no one proposes impris-
onment as a remedy. [Italics supplied. ]
The laws relating to seamen, including R. S.
4596, were again revised in the LaFollette Act of
Mareh 4, 1915, 38 Stat. 1164, 1166 (Appendix,
infra, pp. 78-80), but no change material here was
made in the specific provisions referred to above; *
although reenacted, they have remained in substan-
tially their 1898 form up to the present time (46
U.S. C., See. 701).
The object of the 1915 Act was to ameliorate
the conditions of seamen. The report of the
House committee is a definite manifestation of
what Congress thought the legislation for the
benefit of seamen had accomplished, and of what
Congress assumed the rights of seamen in port to
be. he report” states (H. Rep. 645, 62d Cong.,
2d Sess., pp. 6-7):
** The change in the penalty for desertion is described in
Note 17, supra,
** The bill which was finally passed in 1915 during the 63d
Congress was first introduced and reported in the 62d Con-
gress, and the House Report quoted was submitted to the
earlier Congress in 1912. No relevant changes were made in
these provisions of the bill Lefore final enactment. Language”
identical with that in the quoted passages from the report
also appears in a letter from the Secretaries of Commerce
and Labor to the Chairman of the Committee on Commerce
32
* * * In the judgment of your com-
mittee this bill will be more far-reaching
than any measure now pending in Congress.
There is no other portiou of our citizens or
residents who can be compelled, under pen-
alty of imprisonment, to fulfill a civil con-
tract to labor. The seamen alone remain
as the last remnant of serfdom. The sea-
man may be, and is, compelled to sign a con-
tract to labor before he can secure employ-
ment, and to fulfill such contract after he
has signed it, and the inevitable result has
followed, that the self-respecting man or
-boy prefers employment on land to that of
employment at sea, and only those accept a
of the Senate recommending that the same bill as reintro-
duced in the 68d Congress be passed (Sen, Doc. No, 211, 63d
Cong., Ist Sess.). The House report in the 63d Congress (H.
Rep. 852, 63a Cong., 2d Sess.), after referring both to the
Democratic and Republican 1912 platforms, declared (p. 25) :
“Enlightened public sentiment of the present age is opposed
to the arrest and imprisonment of any person, without ret-
erence to his occupation, for violation of his civil contract of
employment. * * * While it has been urged with great
force by the shipping interests that the repeal of the laws and
treaties providing for the arrest and imprisonment of desert-
ing seamen will lead to serious disorder and inconvenience,
and will seriously handicap them in securing efficient crews
for their vessels, this question has been agitated for many
years, and all the arguments for and against it have been
carefully weighed by the committee, and the committee is
unanimous in its opinion that such laws and treaties should
be repealed. It might be well to state that such laws, as they
apply to our coastwise vessels, were repealed many years ago,
and no serious consequence has been shown to have resulted
therefrom.”
ad Ree BPW ee NEES LF TD BLO TT ee es ae
-
-
‘<
33
seafaring life who by propinquity or neces-
sity are compelled to do so.
* * * . >
This bill relieves him from that condition.
By relieving the seaman from any criminal
proceeding for violating a contract to labor,
leaving only the civil process as a remedy,
you place him exactly in the same position
as other workmen, and the result will be to
gradually improve the standard of the men
who go down to the sea, not only of those in
our own shipping, but of those in all ships
entering our ports, until] it has reached the
same standard as that of workmen on land
* * * * *
" * * Under existing laws men may be
and are employed at the ports where the
lowest standard of living and wages ob-
tain. The wages in foreign ports are lower
than they are in the ports of the United
States; hence the operating expenses of a
foreign vessel are lower than the operating
expenses of an American vessel. It is not
proposed to prevent vessels from employing
seamen in ports where they can secure them
cheapest, but it is proposed by this bill to
give the seamen the right to leave the ship
when ina safe harbor, and in time this will
result in foreign seamen engaged o1: vessels
coming into ports of the United States be-
ing paid the same wages as obtain here, as a
means of retaining their crews for the re-
turn voyage. That will equalize the cost of
34
operation, so that vessels of the United
States will not be placed at a disadvantage.
[Italics supplied. ]
Most significantly, the report summarized Sec-
tion 6 of the proposed bill, which was the reen-
actment of R. S. 4596 as amended, as follows
(p. 8):
Section 6 amends existing law so as to
give the seaman the same freedom as lands-
men when his vessel is in a safe harbor and
to enforce proper discipline while at sea.
[Italics supplied. ]
At the same session Congress enacted Section 20
of the Clayton Act (38 Stat. 730, 738, 29 U.S. C.,
Sec. 52, Appendix, infra, pp. 80-81). That section
provides:
And no such restraining order or injunc-
tion shall prohibit any person or persons,
whether singly or in concert, from termi-
nating any relation of employment, or from
ceasing to perform any work or labor, or
from recommending, advising, or persuad-
ing others by peaceful means so to do;
* * * nor shall any of the acts specified
in this paragraph be considered or held to
be violations of any law of the United
States. [Italics supplied.]
The latter provision this Court has recently de-
clared to be a ‘‘catch-all’’ to relieve the practices
previously described in Section 20 from ‘‘all illegal
taint’? (United States v. Hutcheson, 312 U. S. 219,
230). The ‘‘publie policy of the United States’’
35
for which the Clayton Act stands has been re-
affirmed by Congress both in the Norris-
LaGuardia Act of March 23, 1932, 47 Stat. 70 (29
U. S. C., Sees. 101-115) * and in the National
Labor Relations Act itself. $
Finally, we believe it of some relevance that in
June 1928 Congress added to the Merchant Marine
Act, 1936 (49 Stat. 1985), the title on maritime
labor relations, the policy of which was to encour-
age ccllective bargaining, which expressly re-
affirmed all obligations created under the National
Labor Relations Act (52 Stat. 965, 46 U. 8. C.,
Sees. 1251-1262, Appendix, infra, pp. 81-82). The
1938 statute not only required thzt all disputes be-
tween maritime employers and employees be con-
sidered in conference between authorized repre-
sentatives of the parties, but also provided that it
should be the duty of employers to set a time for
such conferences within five days after the receipt
of a request therefor (46 U. S. C., See. 1256 (ex-
pired June 23, 1941. Pub. No. 124, 77th Cong.,
Ist Sess.) ).
It is clear from this review of the history of the
statutes bearing upon this problem that a peaceful
strike while a ship is in a safe position at the dock
no longer violates any of the clauses in Rev. Stat.
4596, and its successors (46 U. S. C., See. 701).
That statute, as has been shown, was deliberately
amended so as to eliminate the clause punishing
combining to disobey commands, and also so as to
2° Cf. United States v. Hutcheson, 312 U. S., at 231.
36
restrict the offense of willful disobedience to con-
duct at sea.
The only other statute which might be applica-
ble is the mutiny Act of 1835, now Sections 292
and 293 of the Criminal Code (18 U. S. C., sees.
483-484). Insofar as this statute might ever have
applied to a peaceful cessation of work in port, it
would seem to have been superseded by Section
20 of the Clayton Act.”* If so, that is conclusive
of the issue here.
But even apart from the Clayton Act, we be-
lieve that the language of the original statute
and the course of legislation show that Congress,
over a period of years, has not deemed the nruuny
laws to be applicable to offenses of this type. In
the first place, even though the words “solicits
* * * any other of the crew to disobey * * *
or neglect their proper duty’’* might literally be
21 Since the Clayton Act does not differentiate between
conduct at sea and on land, it might be deemed applicablo
to peaceful strikes even when the vessel is not in port.
That question, of course, need not be determined in this case.
In any event, even if the mutiny acts were held inapplicable
to such strikes at sea, Paragraphs Fourth and Fifth of Rev.
Stat. 4596, as reenacted in 1915, 38 Stat. 1166 (46 U.S. C.,
Sec. 701) after the Clayton Act (Act of October 15, 1914,
38 Stat. 730, 29 U. S. C., Sec. 52) penalize willful disobedi-
ence at ea, and still remain available for the punishment of
seamen who disobey, individually or in combination, while
not in port.
22 The Act also applies to one who endeavors or combines
to make a revolt or mutiny. These words we believe would
have to be stretched considerably to apply to situations like
that at bar.
37
deemed to cover peaceful efforts to peisuade others
to strike, the 1855 Act, read as a whole, demon-
strates that Congress had something much more
serious in mind. The emphasis is on revolt and
mutiny, as is brought out not only by the text
bit by the titles given to the sections in the Re-
vised Statutes, the Criminal Code, and the United
Scates Code. Thesc terms are defined in Section
484 (18 U. S. C.) as unlawfully and with force er
by fraud or intimidation usurping command of a
vessel or resisting officers and depriving them of
their authority (infra, pp. 72-73). Section 483,
which deals with endeavors to mutiny or the inci-
tation of others to do so, must be read in the light
of this definition of the primary offense. The
meaning to be given the concluding phrases in this
section ean best be gathered from their context.
Cf. Texas & N. O. R. Co. v. Brotherhood of Rail-
way Clerks, 281 U. S. 548, 568. The maxim
ejusdem generis also has obvious application.
That the Congress which passed the Act was of
this opinion may be inferred from the remark of
Senator Clayton that the phrase ‘“‘neglect of duty’”’
meant only that which ‘‘endangers the safety of the
ship and crew”’ (see p. 28, supra). Moreover, the
expression ‘‘solicits, incites, or stirs up * * *
to disobey or resist the lawful orders of the master
* * * or to refuse or to neglect their proper
duty,’’ read as a whole, in itself carries a connota-
tion of threatened disorder, intimidation or
violence.
38
Yhat mere combining to disobey, in the absence
of such factors, was not designed to be reached by
the 1835 act appears from the provision in the
1872 statute punishing by one year imprisonment,
instead of five, ‘‘combining * * * to disobey
lawful commands or to neglect duty.’’ This provi-
sion in the 1872 law would have been entirely un-
necessary if the 1835 Act with its heavier penalties
applied to the same offenses.”
The repeal of this provision in 1898, together
with the restriction to conduct ‘‘at sea’’ of the
penalties for wiilful disobedience, manifests a con-
gressional intention that a peaceful combination to
disobey in port is not unlawful. In view of the
expressed purpose of the framers of the 1898 Act
to ‘‘improve the condition of the American sailor,”’
and ‘‘relieve the maritime laws of their strictness’’
(H. Rep. 1657, 55th Cong., 2d Sess., p. 4),”* it would
be absurd to conclude that the repeal of the clause
had the effect of reinstating a statute penalizing
tne same conduct five times as severely.
The Acts of 1898 and 1915 were enacted in re-
sponse to efforts of organized maritime workers
2° We do not think that the 1872 Act can properly be
dez.ned to have amended, or limited the effect of, or reduced
the penalties under the 1835 enactment. The codifiers have
treated the two measures as entirely separate and unrelated,
and we think properly so. The legislative history of the 1872
act throws no light upon the problem. Cf. Jn Re Simpson
115 Fed. 620 (D. Maine, 1901).
* See, also, S. Rep. 832, 54th Cong., 1st Sess.; 29 Cong.
Rec. 548-549; 32 id. 129-132,
( 39
tu secure the same right to strike when in a safe
harbor as was enjoyed by workers on land.”
The proponents of the 1898 and 1915 statutes
plainly assumed that, except for the necessity of
insuring obedience at sea, tuey were raising the
status of seamen to that of the worker on shore.
Their failure to touch or amend the mutiny statute
can be explained only on the assumption that they
never dreamed that the conduct which they were
protecting against relatively minor penalties con-
stituted a felony under laws applicable to ‘‘ revolt
or mutiny.”’
If the entire course of legislation covering the
period from 1835 to 1915 had been compressed
into a short period, in which the personnel of
Congress had not materially changed, there could
be no doubt as to its pertinence to the construc-
tion of the 1835 Act. When evidence of congres-
sional intention is derived from legislative action
at wide intervals over a period of eighty years,
the concept of a personalized and continuing legis-
lative intent is more difficuit to sustain.” Never-
theless, it is not entirely fictional to treat Con-
* Hohman, Maritime Labour in the United States, Inter-
national Labour Review, vol. 38, pp. 190, 198-207 (Interna-
tional Labor Office, Geneva, August 1938); U. S. Depart-
ment of Labor, Bureau cf Labor Statistics, Bulletin No. 342,
International Seamen's Union of America: A Study of Its
History and Problems, pp. 4-6, 16-17, 29-39.
** See Radin, Statutory Interpretation, 43 Harv. L. Rev.
863; Landis, A Vote on “Statutory Interpretation,” id., 886.
40
gress, like a court, as acc . inuing entity, despite
changes in personnel, and te determine what its
pronouncements mean by looking at them as an
integrated whole even over a period of years.
“The correct rule of interpretation is, that if
divers statutes relate to the same thing, they ought
all to be taken into consideration in construing
any one of them, and it is an established rule of
law that all acts in pari materia are to be taken
together, as if they were one law. * * * and if
it can be gathered from a subsequent statute in
part materia, what meaning the legislature at-
tached to the words of a former statute, they will
amount to a legislative declaration of its meaning,
and will goverit the construction of the first stat-
ute.”” United States vy. Freeman, 3 How. 556, 564;
Cope v. Cope, 137 U. S. 682, 688; Tiger v. Western
Investment Co., 221 U. S. 286, 309; United States
v. Stewart, 311 U. S. 60, 64. Uncertainties as to
the interpretation of the 1835 Act in the light of its
eentemporaneous history thus may reasonably be
resoived hy heeding what subsecuent Congresses,
which might otherwise have amended it, under-
stood it to mean.
_ In this ease, moreover, we need not be primarily
concerned with what the 23rd Congress intended
in 1835 but with what the 74th Congress intended
in 1935. The issue to be decided is whether par-
ticular discharges violated the National Labor
Relations Act, or, more specifically, whether they
41
were justified because of the policies proclaimed in
earlier legislation. In determining wh«ther the
Congress which passed the Labor Relations Act
would have deemed discharges justified because of
acts which might have violated a law enacted in
1835, we should give effect to what those who
passed the Labor Relations Act would have as-
sumed the earlier statute to mean. We believe
that there can be no dovbt that, at least for the
iast fifty years, Congress has assumed that the
peaceful cessation of work, while a vessel was in
a safe position in port and in order to attain a
lawfui objective, did not come within the pur-
view of the statutes prohibiting mutiny.
(b) The authorities —The petition for certiorari
(p. 7) declared that the question here pre-
sented had not been settled by this Court, and
referred to the statement by the court below that,
upon authority, the question was an ‘‘open one”’
(R. 777). We can go further and state that, de-
spite the numerous cases zited in petitioner’s brief,
there are no authorities involving a precisely
similar question. |
The essential facts in this case are as follows:
1. The men ceased work in order to induce their
employer to obey the law. ;
2. The strike occurred not merely in an Ameri-
can port, but while the ship was moored to the
dock in a safe position, and while the men re-
mained on board and were willing to do anything
essential to the safety of the vessel.
42
3. The strike was entirely peaceful; the men did
not seize control of or otherwise interfere with
the operation of the ship.
The cases upon which petitioner relies should be
examined with these considerations in view.
Although many cases under the mutiny act have
applied that statute to ships in port or in a harbor,
none have involved vessels moored to the dock
or in a definitely safe place in an American port.”
A ship anchored in a harbor some distance from
land is not necessarily safe. The modern decisions
involve ships in foreign ports. Hamilton v.
United States, 268 Fed. 15 (C. C. A. 4, 1920),
certiorari denied, 254 U. S. 645 (three miles out,
in Bermuda); Rees v. United States, 95 F. (2d)
784 (C. C. A. 4, 1938) (Montevideo) ; United States
v. Albers, 115 F. (2d) 833 (C. C. A. 2, 1940)
(Culombo, India). In the Hamilton and Rees
eases the vessels were not in a safe place in
* The cases involving vessels in American ports are:
United States v. Haines, 26 Fed. Cas. No. 15275 (C. C. D.
Mass., 1818); United States v. Hamilton, 26 Fed. Cas. No.
15,290 (C. C. D. Mass., 1829); United States v. Gardner, 25
Fed. Cas. No. 15,188 (C. C. D. Mass., 1829) ; United States v.
Barker, 24 Fed. Cas. No. 14,516 (C. C. D. Mass., 1829) ;
United States v. Lynch, 26 Fed. Cas. No. 15,648 (C. C. S. D.
N. Y. 1843) ; United States v. Staley, 27 Fed. Cas. No. 16,374
(C.C,D. R. L., 1846) ; United States v. Nye, 27 Fed. Cas. No.
15,906 (C. C. D. Mass., 1855).
Different considerations may well apply to vessels in for-
eign ports. Cf. United States vy. Roberts, 27 Fed. Cas. No.
16,173 (C. C. S. D. N. Y., 1843) (Havre, France); United
States v. Cassedy, 25 Fed. Cas. No. 14,745 (C. C. D. Mass.,
1837) (St. Helena) ; and cases cited in text.
43
the harbor; the position of the ship in the Albers
case does not appear. In the Rees case the Circuit
Court of Appeals declared (p. 792) :
The defendants contend that the crew of a
vessel which is moored to a dock or is at
anchor in a safe harbor have the right to
strike and that the Mutiny Act, 18 U. 8.
C. A., § 483, has no application to seamen in
such a situation. But that question is not
presented for decision in this case. As we
have already pointed out, the A/gic was not
in fact moored to the dock or at anchor in a
safe harbor, but was in such a position that
the obedience of the crew to the orders of
the master was essential to her safety. In
such a case, the same rule is applicable as
though the vessel were at sea, as this court
decided in Hamilton v. United States, 4 Cir.,
268 F. 15.
It is true that a number of the early cases, most
of which were decided prior to 1835 and all before
1860, held or assumed that the mutiny act applied
to ships in port without any discussion as to
whether the vessel was in a safe place.** Some of
these cases involved violent resistance to the mas-
ter’s orders,” but others held that the law was vio-
lated by a peaceful refusal to work while a vessel
** See Note 27, supra, p. 42.
** United States v. Hamilton, United States v. Roberts,
both supra, Note 27; United States y. Stevens, 27 Fed. Cas.
No, 16,394 (C. C. E. D. Pa., 1825) (St. Domingo).
440953—42——4
44
was ina harbor.” These cases differ from the in-
stant case, not only in that the vessels involved were
not moored to the dock, but in that the court in each
deemed the reason for the refusal to work to be
illegal. In a number of them the crew refused to
work under a different master than was specified
in the articles.” In another the crew was insist-
ing upon a one-day watch below deck.” In others
the crew was claiming erroneously that the voyage
had terminated and that its obligation to work had
expired.”
Moreover, the early cases arose before unions
for maritime labor were organized and before the
right of labor to bargain collectively was recog-
nized by employers or accorded legal protection.”
*° United States v. Haines, United States v. Nye, United
States v. Barker, United Statea y. Gardner, all supra, Note
27, p. 42: United States v. Cassedy, 25 Fed. Cas. No, 14,745
(C. C. D. Mass., 1837) (St. Helena); Hamilton vy. United
Staies, 268 Fed. 15 (C. C. A. 4th, 1920), certiorari denied,
254 U. S. 645 (Bermuda).
8! Wnited States v. Hamilton, United States v. Haines,
Vnited States v. Nye, United States vy. Cassedy, ali supra,
Note 27, p. 42.
United Ntates v. Gardier, supra, Note 27, p. 42.
* T'nited States vy. Barker, supra, Note 27, p. 42: Hamil-
ton v, United States, supra, p. 42.
** Paul S. Taylor, The Sailors’ Union of the Pacific (Ron-
ald Press, 1923), pp. 4649; United States Department of
Labor, Bureau of Labor Statistics, Bulletin No. 342, //er-
national Seamen's Union of America: A Study of its History
and Problems (1923), pp. 3-5.
The only case under the mutiny act which mentions a
union is the Avex case, decided in 1938 (see pp. 42-43.
supra), which expressly refrains from passing on the pres-
ent question,
45
Indeed, scamen during the nineteenth century
were regarded even by this Court “as deficient in
that full and intelligent responsibility for their
acts which is accredited to ordinary adults
* * *" (Robertson v. Baldwin, 165 U. S. 275,
287).
In none of the eases was the crew seeking to com-
pel the employer to cease disobeying a statutory
command, as is the ease here. The analogy of the
authorities which hold that a crew may rightfully
refuse to opdey orders if it reasonably believes a
vessel to be unseaworthy ™ suggests that the lawful-
ness of the demand has always been an important
factor.
Another group of cases which indicate that
strikes when a vessel] is safe in port are not illegal
have arisen out of attempts by employers te use
such strikes as a defense to suits by seamen for
wages. Although mutinous conduct works a for-
feiture of all wages due,* the right of the men to
recover in such eases has been upheld. Weisthoff
v. American-Hawatian S. S. Co., 79 F. (2d) 124
(C. C, A. 2), certiorari denied, 296 U.S, 619; The
Sonderburg, 47 F. (2d) 723 (C. C. A. 4), certiorari
denied, 284 U. S. 618; The Blake, 1 W. Rob. (:dm.
73, 166 Eng. Rep. 500 (1839). The Weisthoff
* United States y. Staley, supra, Note 27, p. 42; The Con-
dor, 196 Fed. 72 (S. DLN. Y., 1912) and cases cited.
* The Shawnee, 45 Fed. 769 (E. D. Wis. 1891): Tie Men-
tor, 17 Fed. Cas. No. 9427 (C. C. D. Mass., 1825).
46
ease involved a strike on a ship tied up in New
York harbor. The Circuit Court of Appeals for
the Second Circuit stated (79 F. (2d), at 125):
The allegations that they attempted to
make a revolt and deserted so as to forfeit
their wages under 46 U. 8S. C., § 701 were
not sustained in the District Court, and we
do not find more than the making of de-
mands, some of which were ill-advised and
called for action they should have known
the master could not take, instead of putting
their case to him on tenable statutory
grounds which entitled them to their dis-
charge and pay. It was rather a case of
poor judgment and misunderstanding of
their rights than the gross misconduct
which will forfeit wages.
In The Sonderburg case the crew went on strike
on board the ship while it was safely moored in
Halifax. The master had the crew arrested and
charged with mutiny, but the Canadian court dis-
missed the mutiny charges. The crew thereafter
sailed the ship back to the United States. The
master: refused to pay them any but trifling
amounts, claiming a forfeiture on account of their
conduct at Halifax, but the court without ques-
tion aliowed them to recover their full wages.
In The Blake, supra, Dr. Lushington, in refus-
ing to forfeit the wages of intoxicated seamen
who had refused to work, declared:
47
It is also to be observed, that the occur-
rence took place in port, where the ship was
exposed to no hazard; and I draw a strong
line of distinction between disobedience of
orders in port, and any insubordination
whatever when the vessel is on the high
seas, where it might expose to destruc-
tion, the ship, cargo, and lives of all on
board.
We are not suggesting that offenses on a ves-
sel safely moored in port are not within the juris-
dictional limits of the mutiny statute, which ap-
plies to acts ‘‘within the admiralty and maritime
jurisdiction of the United States’’, but that a
peaceful refusal to work for a valid reason while
the ship is so located does not constitute a mutiny
or other violation of the statute’s substantive pro-
visions. A forceful usurpation of authority, even
when the vessel is tied to a dock, might come
within the statute. Cf. Peninsular and Occidenial
S. S. Co. v. National Labor Relations Board, 98
F. (2d) 411, 414 (C. C. A. 5), certiorari denied,
305 U. 8. 653.
Viewed as a whole, we think it fair to state that
the judicial authorities support our construction
of the maritime statutes as not outlawing peaceful
strikes by seamen on a vessel safely moored in an
American port, at least when the object of the
strike is clearly lawful. The modern cases appear
to recognize such a right, and the older ones all
deal with different situations.
48
This view of the statutes and cases is supported
by the reasons which underlie the stringent rules
of discipline applicable to seamen and the heavy
penalties imposed for disobedience. The basic
consideration is, of course, the safety of the vessel,
the passengers, the cargo, and the crew itself. In
addition there is the absence of civil authority
when the ship is at sea. Neither of these factors
is present when the vessel is safely * moored in an
American harbor,” and they certainly do not ap-
ply when the crew of a ship so situated is merely
* A vessel, even when moored to the dock, is not of ‘ourse
absolutely safe, any more than a factory, railroed train -or
automobile on shore is immune from all danger of fire or
accident. But since the chance of mishap does not differ
substantially in kind or degree from that on land, the need
for a special and different standard of discipline does not
exist.
* Petitioner's contention (Br., pp. 15-16, 23) that in es-
tablishing the legality of a strike a distinction must be
drawn between the “home port” of a ship and other ports in
the United States is without any basis. While the statutes
require each ship to have a “home port,” which may be
changed from time to time (Home Port Act of February
YG, 1925, «, 235, Sees, 1-2, 46 U.S. C.. $8 18 1012), the
aim of this enactment “was to simplify the previous techni-
cal ‘ifftculties surrounding the determination of the proper
place in which to record conveyances.” The Fort Orange, 5
F. Supp. 838, 842 (D.C. S. DLN. Y.).) The “home port” is
like the state of incorporation. Indeed it may be a port
which is never frequented by the ship. Hearing before the
Committee on the Merchant Marine and Fisheries, House of
Representatives, 68th Cong... 2d Sess.. January 26, 1925,
Home Ports of Vessels of the United States, pp. 16-17 (con-
cerning vessels sailing the Pacific ocean whose home port
was St. Paul, Minnesota). Cf. Ayer & Lord Tie Co. v.
Kentucky, 202 U.S. 409; Southern Pacific Co. v. Kentucky,
SAT ies RIES ACS
49
seeking to require the employer to accord them
their rights under the law.”
In Buddington v. Smith, 13 Conn. 3383, 335
(1839), the Supreme Court of Errors of Connec-
ticut, in holding that a master had no right to
imprison a seaman in port, declared :
The mariners of a ship at sea are at a
distance from all the ordinary restraints of
government, and of course, must be sub-
jected to other rules of discipline than those
who are under more immediate accountabil-
ity to law. The master, therefore, is in-
vested with absolute authority ; or, at least, a
power as great as that of a master over his
apprentice, or a parent over his child. His
orders, when not unlawful, must be obeyed ;
and he has a right to compel submission to
all reasonable requirements, by any punish-
ment not unusual or dangerous; and of
these punishments one of the most common
222 U. S. 63, 67. No case or statute has ever indicated
that labor had any different status in the ship’s “home port”
than in any other port.
** See Hearings Before the Committee on Merchant Ma-
rine and Fisheries, House of Representatives, 75th Cong., 1st
Sess., on H. J. Res. 121 and H. J. Res. 143. Exhibit entitled
“Report on the status and Working Conditions of Seamen
in the American Merchant Marine,” p. 192:
“The statutes relating to mutiny were designed to ensure
obedience to the master’s orders when the master must rely
upon his own authority to enferce obedience and when dis-
obedience may jeopardize the master’s authority and imperil
the safety of the ship. In a port of safety the master can
obtain the assistance of civil authorities, the ship is not im-
periled, and a strike by seamen is in consequence no differ-
ent from a strike by any other class of workers.”
50
is confinement on ship-board. The United
States v. Smith, 3 Wash. C. C. Rep. 523.
Michaelson v. Denison et al., 3 Day 294.
3 Kent’s Com. 181. The United States v.
Freeman, 4 Mason 412. The power is a
high power, but seems to be absolutely nec-
essary for the protection of the lives and
property entrusted to the master of a vessel,
while the mariners are removed from all
ordinary restraints. But when the ship is
in port, there is much less necessity for the
exercise of this authority; and still less for
the exercise of this authority on shore, es-
pecially in a civilized country. The master
of a vessel is, and must be, the commander,
on board; but on shore, he becomes weak as
other men.
See, also, The Blake, supra; The Condor, 196 Fed.,
at 74. |
Petitioner’s assertion (Br. pp. 26-27) that to
sustain the Board’s position ‘‘will be jeopardiz-
ing the present and future safety of our country”’
ignores the realities of the situation. Already the
shipowners and the various unions representing
ship personnel, including the Union here in-
volved, have entered into an industry-wide ar-
bitration agreement for the settlement of all dis-
putes during the emergency. The exercise of
the right to strike or lock-out is unconditionally
renounced by all parties for the duration of the
war. A Maritime War Emergency Board has
been set up, with a pledge that its decisions will
51
be accepted.” During the First World War a
similar development took place and the unions
earried out their end of the arrangemeut without
a single strike.” The fact that Congress had
given the seamen the status of free men by pass-
ing the Act of 1915 was used by the unions, when
a shortage of seamen appeared imminent, in issu-
ing calls to ‘‘all seafaring men ashore or afloat”’
‘“‘to prove that no enemy on the seas can stop the
ships of the Nation whose seamen bear the re-
sponsibility of liberty.’’“’ In connection with the
present war effort the Union here involved has
already issued a call to former seamen who have
taken land jobs to return to the sea tc fill a
* Arbitration Agreement in Shipping Industry, Labor
Relations Reporter, vol. 9, No. 18, pp. 463-464 (December
29, 1941); Maritime Arbitration, Business Week, January
10, 1942, p. 69; The Trades Unionist, American Federation
of Labor, Washington, D. C., January 17, 1942, p. 8.
“Proceedings of the Joint Shipping Industrial Confer-
ence, June 1919, p. 15; Keport of the Director of Marine
and Dock Industrial Relations Division, United States
Shipping Board, Marine and Dock Labor: Work, Wages,
and Industrial Relations During the Period of the War
(1918), pp. 15-27, 37, 40, 45-47, 164; Maritime Labor Board,
Report to the President and to the Congress, March 1, 1940,
pp. 33-34; Hearings before the Senate Committee on Com-
merce, 74th Cong., Ist Sess., on S. 2582, A Bill to Develop a
Strong American Merchant Marine, te Promote the Com-
merce of the United States, to Aid National Defense, and
For Other Purposes, pp. 482-434.
“” Hearings before the Senate Committee on Commerce,
74th Cong., 1st Sess., on S. 2582, p. 432.
52
‘growing shortage of sailors.“ All government
investigations dealing both with the experiences
of the last war and conditions since point to the
need for the development of ‘‘self-respecting
equality’? between employer and seamen rather
than the ‘‘traditional disciplinary roie’’ as a pre-
requis te for a stable and sound merchant ma-
rine.“
2. Even if, in a technical sense, the strikers’ conduct were
legal, the strikers would not have forfeited their right
to reinstatement under the National Labor Relations Act
This case arises under the National Labor Rela-
tions Act, not under the statute relating to revolt
and mutiny. The mutiny statute is relevant only
by way of justification for a refusal to reinstate
which otherwise would plainly have been required
under the Labor Relations Act.
It does not foliow, however, that all conduct
which is unlawful under some other statutory pro-
* New York Times, January 10, 1942.
** Maritime Labor Board, Report to the President and to
the Congress, March 1, 1940, pp. 26, 28-30: H. Doc.
No. 392, 75th Cong., 2d Sess.. U. S. Maritime Commission,
Economic Survey of the American Merchant Marine (No-
vember 10, 1937), pp. 46-49; U. S. Maritime Commission,
Economic Survey of Coastwise and Intercoastal Shipping
(March 15, 1929), pp. 61-64; Federal Coordinator of Trans-
portation, Section of Labor Relations, Hours, Wages, and
Working Conditions in Domestic Water Transportatien
(September 1936), pp. 221-223; Testimony of Secretary of
Labor Perkins, Hearings before the Committee on Com-
merce and the Committee on Education and Labor, U. S.
Senate, 75th Cong., 3rd Sess., on S. 3078, pp. 974-975
(February 4, 1938).
53
vision affords an employer such _ justification.
Both before and since the Fansteel decision it has
been held repeatedly that technical or minor vio-
lations of law by employees on strike because of
an unfair labor practice do not prevent the Board
from ordering reinstatement. National Labor
Relations Board v. Remington Rand, Inc., 94
F. (2d) 862, 872 (C. C. A. 2), certiorari denied,
304 U.S. 576, 585; National Labor Relations Board
v. Carlisle Lumber Co., 94 F. (2d) 138, 146 (C. C.
A. 9), certiorari denied, 304 U. S. 575; National
Labor Relations Board v. Reed & Prince Mfg. Co.,
118 F. (2) 874, 888 (C. C. A. 1), certiorari denied,
313 U. S. 595; National Labor Relations Board v.
Stackpole Carbon Co., 105 F. (2d) 167, 176 (C. ©.
A. 3), certiorari denied, 308 U. S. 605; Republic
Stcel Corp. v. National Labor Relations Board, 107
F. (2d) 472, 479 (C. C. A. 3), certiorari denied on
this point, 310 U. 8. 655; National Labor Relations
Board v. Colten, 105 F. (2d) 179, 183 (C. C. A. 6);
see also Stewart Die Casting Corp. v. National
Labor Relations Board, 114 F. (2d) 849, 855
(C.C. A. 7), certiorari denied, 312 U.S. 680; Note,
Employee Misconduct under the Wagner Act; De-
velopments since the Fansteel Case, 39 Col. L.
Rev. 1369. Thus, in the Reed & Prince ease, the
court declared that the Fanstcel decision ‘‘is not
applicable to bar a Board order reinstating em-
ployees guilty of minor breaches of peace on the
picket line”’ (118 F. (2d), at 888).
o4
Since both major and minor offenses are unlaw-
ful, these cases inticate that the fact that an em-
ployee has violated a law does not in itself always
bar reinstatement. The proper criterion for
differentiation is, we submit, to be found in the
Labor Relations Act itself. That act authorizes
the Board to order “such affirmative action, in-
cluding reinstatement of employees * * *, as
will effectuate the policies of this Act’’ (Section
10 (c)). The policy of the Act is to preserve in-
dustrial peace by preventing employers from inter-
- fering with the choice of representatives by
employees or from refusing to bargain collectively.
It is not the purpose of the Act, of course, to pro-
tect employees who violate other laws, whether the
violation be petty or gross. Cf. National Labor
Relations Board vy. Federal Bearings Co., 109
F, (2d) 945 (C. C. A. 2).
But it would not be consistent with the policy
of the Act for employers who provoke their work-
men to strike by unfair labor practices te escape
the normal consequences of their conduct because
the employees committed those minor offenses
which all employers know frequently accompany
strikes. We believe this to be the rationale of
the cases cited. In the Republic Steel case the
Cireuit Court of Appeals declared (107 F. (2d),
at 479) :
ow)
In the Fansteel case the court was dealing
with a case which involved a sit-down strike
in which the strikers forcibly and unlaw-
fully deprived their employer of possession
of his plant. The court made it clear that
unlawful conduct of that character deprived
the participant of the right of reinstate-
ment. We think it must be conceded, how-
ever, that some disorder is unfortunately
quite usual in any extensive or long drawn
out strike. A strike is essentially a battle
waged with economic weapons. Engaged in
it are human beings whose feelings are
stirred to the depths. Rising passions call
forth hot words. Hot words lead to blows
on the picket line. The transformation
from economic to physical combat by those
engaged in the contest is difficult to prevent
even when cool heads direct the fight. Vio-
lence of this nature, however much it is to
be regretted, must have been in the contem-
plation of the Congress when it provided in
Sec. 13 of the Act, 29 U.S. C. A., § 163, that
nothing therein should be zonstrued so as to
interfere with or impede or diminish in any
way the right to strike. If this were not so
the rights afforded to employees by the Act
would be indeed illussry. We accordingly
recently held that it was not intended by the
Act that minor disorders of this nature
should deprive a striker of the possibility of
reinstatement. National Labor Relations
Board vy. Stackpole Carbon Co., supra.
56
‘he court there held that strikers who had been
convicted of offenses which would not normally
accompany a strike, such as discharging firearms,
earrying concealed weapons, obstructing railroad
tracks and telephone messages, malicious destruc-
tion of property, and serious assault and battery
should not be reinstated but that (p. 480) :
As to the remaining offenses proved te
have been committed we are satisfied from
their character and from the small penalties
imposed that they were all sufficiently minor
to come within our decision in the Stack-
pole case and the order of the Board direet-
ing the reinstatement of the persons in-
volved in them will be enforced.
In the ins'aut case, as we have shown (supre,
pp. 25, 52), the conduct of the strikers was prob-
ably not unlawful at all. But even if the refusal
to obev orders which, of course, occurs in every
strike, should be deemed unlawful under the
mutiny statute, the violation would be at most
a technical one. Indeed, the penalties imposed in
eases of mere refusal to work by seamen, even
when the vessel was not tied up safely in an Amev-
iean port, show that violations of the mutiny law
in such circumstances are not regarded as more
serious than minor breaches of the peace.”
“The penalties disclosed in reported cases dealing with
peaceful cessation of work, whether in American or ——
harbors, were as follows:
United States v. Lynch, 26 Fed. Cas. No. 15,648 (C. C.
D. N.Y.) (NX. Y., 60 days plus $1); United States v. Nye, 27
57
In this case the conduct of the employees was
provoked and caused by petitioner’s unlawful re-
fusal to bargain. Petitioner’s persistent refusal to
acknowledge communications from or to see or
speak to the chosen representative made a strike
neither unlikely nor unreasonable. The strikers
did not engage even in the minor disorders re-
ferred to in the eases cited (supra, p. 53). There
was only the refusal to work, of which a strike, by
definition, necessarily consists. The reinstatement
of strikers who sought only to force the employer
to bargain collectively ard thus comply with the
Labor Relations Act in such circumstances obvi-
ously serves to effectuate the policies of that Act.
Even if the mere act of striking might be deemed
to violate some other law, the nature of the offense
should be weighed in relation to the nature of the
rights guaranteed by the Labor Relations Act.
Where, as here, there is doubt as to whether the
mutiny statute has been violated at all, and where
the violation, if any, would be relatively trivial,
and of no greater consequence than a breach of the
peace, the policy of the Labor Relations Act rather
than of the mutiny act should prevail.
Fed. Cas. No. 15,906 (C. C. D. Mass. 1855) (Boston, 30
days); United States v. Seagrist, 27 Fed. Cas. No. 16,245
(C.C.S. D. N. Y. 1860) (Palermo, Sicily, 30 days plus $19) ;
Hamilton v. United States, 268 Fed. 15 (C. C. A. 4, 1920)
certiorari denied, 254 U. S. 645 (Bermuda, 2 days plus
$50); Rees v. United States, 95 F. (2d) 784 (C. C. A. 4,
1938) (Montevideo, 2 months or $50); United States v.
Albers, 115 F. (2d) 833 (C. C. A. 2, 1940) (Ceylon, up to
3 months).
58
This does not mean that the seamen’s conduct,
should it be deemed to violate the mutiny
act, need go unpunished. If the prosecuting
officials of the Government are of opinion that that
statute has been viclated, they may institute pro-
ceedings, just as state officials have power to pun-
ish disorderly picketers for breach of the peace,
independent of anything the Labor Board may
order. But the employer, who had illegally pro-
-voked the conduct, should be required to remedy,
by reinstatement, the wrong which led to the
trouble.
For these reasons we suggest that it is unneces-
sary for this Court to determine whether or not
the strikers’ conduct here violated the provisions
of the laws against mutiny and revolt. For even
if it did, the National Labor Relations Board had
power to order the strikers reinstated.
C. THE SO-CALLED BREACH OF SHIPPING ARTICLES CONSTITUTED
NO VALID GROUND FOR THE DISCHARGES
Petitioner further maintains (Br., pp. 3, 6-8,
9-27, 34) that the seamen of the City of Fort
Worth did not have the right to strike at Houston
because at the time they were serving under ship-
Ping articles which provided that—
* * * the said crew agree to conduct
themselves in an orderly, faithful, honest,
and sober manner, and to be at all times
diligent in their respective duties, and to
be obedient to the lawful commands of the
said Master * * * in everything relat-
a —_—-- —_——
59
ing to the vessel * * * whether on
board, in boats, or on shore; (R. 681).
The articles, which are in a form prescribed by
law (46 U. S. C., See. 564), do not contain an
explicit agreement not to strike. The agreement
to be cbhedient to the directions of superiors is of
course implicit in every employment relationship.
The articles merely make explicit that implicit
obligation. As both the Board (R. 31) and the
court below (R. 778-780) held, all strikes neces-
sarily involve disobedience to this implied agree-
ment. But under the Act such disobedience can-
not justify a discharge; not only is the right to
strike guaranteed to employees by the provision
in Section 7 that ‘‘emplovees shall have the
right * * * to engage in concerted activities,
for the purpose of collective bargaining or other
mutual aid or protection,’’ but even more spe-
cifically, Section 2 (3) provides that employees
who cease work in connection with a current labor
dispute or because of unfair labor practices shall
continue to be employees, It is a necessary corol-
lary that the breach of the employment contract
involved in striking does not protect an employer
in discharging an employee. National Labor Re-
lations Board v. Mackay Radio & Tel. Corp., 304
U.S. 333, 346.
Furthermore, here the employees ceased work
because of the employer’s unfair labor practices,
and it is well established that the Board may order
440963—42——5
60
reinstatement of persons who strike in such circum-
stances regardless of whether there may be a
technical breach of the employment contract. See
eases cited supra, p.-19.
The instant situation is to be distinguished from
that presented by an agreement not to strike,
validly entered into by a bona fide labor organiza-
tion as a result of collective bargaining. Whether
breach of such a collective obligation permits dis-
charge need not be determined here. Shipping
articles are individual contracts (Oliver v. Alez-
ander, 6 Pet. 148; Peninsular & Occidental S. S.
Co. vy. National Labor Relations Board, 98 F. (2d)
411, 414 (C. C. A. 5), certiorari denied, 505 U. S.
653) and eannot lawfully be construed to include
a renunciation of the right to strike. Cf. National
Licorice Co. v. National Labor Relations Board,
309 U. S. 350, 360-361; National Labor Relations
Board y. American Mfg. Co., 106 F. (2d) 61, 66-
67 (C. C. A. 2), affirmed, 309 U. S. 629; National
Labor Relations Board v. Hopwood Retinning Co.,
98 F. (2d) 97 (C. C. A. 2); Western Union Tele-
graph Co. v. National Labor Relations Board, 113
F’, (2d) 992, 994-995 (C. C. A. 2).
That shipping articles are not to be construed
as a limitation upon the right to strike is shown
by National Labor Relations Board v. Water-
man Steamship Corp., 309 U. 8. 206, 210-212, in
which this Court indicated that the articles were
intended to give employees who yo to sea added
61
protections, not to deprive them of the rights and
incidents of employment normal to that relation-
ship on land.
Finally, even if the conduct of the seamen were
to be adjudged solely on the basis of strict con-
tract law, petitioner is not aided by the fact that
the strike may have constituted a technical breach
of contract. For petitioner waived the breach by
continuing after the strike to receive the services
of the seamen. Although the master of the ship
and petitioner’s local shipping agent in Houston
were authorized by petitioner to discharge and re-
place the crew at Houston (R. 569-573, 644, 481-
482), thev did not do so, but allowed the men to
return to their former positions and to continue
in the employ of petitioner for seven days before
the men were discharged (R. 295-297, 299-300,
375-377, 388, 502). An employer who “‘has cause
justifying * * * discharge’’ but who ‘‘never-
theless continues, with knowledge of the facts, to
receive the benefit of the servant’s service * * *
cannot afterwards make the breach ground for
discharge.’’ 3 Williston, Contracts, Rev. Ed., §
725, p. 2062; cf. National Labor Relations
Board vy. Federal Bearings Co., 109 F. (2d) 945
(C. C. A. 2).
62
IT
THE BOARD’S FINDING THAT THE EMPLOYMENT RELA-
TIONSHIP CONTINUED AFTER THE SIGNING OFF OF
SHIPPING ARTICLES IS SUPPORTED BY SUBSTANTIAL
EVIDENCE; IN ANY EVENT PETITIONER DISCRIMI-
NATED AGAINST THE MEN BY FAILING TO REHIRE
THEM |
Petitioner urges (Br., pp. 27-32) that the
tenure of employment of the seamen of the City
of Fort Worth automatically terminated when
they signed off shipping articles at the conclusion
ef the voyage at Philadelphia, and hence that peti-
tioner did not then discharge them in violation of
the Act. The Board, however, found that ‘‘the
tenure of employment of the [petitioner’s] sea-
men is not terminated by the mere expiration of
shipping articles” (R. 27-28), and the court below
sustained the tinding (R. 773-774). The evidence
amply sustains the concurrent holdings of the
Board and lower court upon this issue of fact.
Cf. National Labor Relations Board v. Falk Corp.,
308 U. S. 453, 461.
The five men here involved had worked ¢on-
tinuously for, petitioner without regard for the
expiration of articles; although each round-trip
voyage of the City of Fort Worth took about 25
days (R. 413-414, 213, 278), the men had been in
petitioner’s employ for periods ranging from 6
weeks to 18 months (R. 124-125, 177-178, 196-197,
213, 278). According to petitioner’s custom, its
63
seafnen ordinarily signed new articles when sign-
ing off the old, but even when they did not, they
nevertheless considered themselves engaged for the
next voyage unless expressly notified to the con-
trary (R. 153-154, 184-185, 199-201, 221--223, 300-
301). Indeed, petitioner encouraged continuous
employment by the payment of a bonus to each
employee who completed a year of work (R. 185).
Finally, petitioner’s officers all referred to the
men as having been ‘‘discharged”’ or “‘fired’’ upon
the arrival of the vessel at Philadelphia because
of their strike activity (R. 201-202, 224-225, 284,
338, 390-391, 394, 461-462, 491-492, 515), thus
impiicitly recognizing, as ‘“‘maritime people gen-
erally’’ have, that the ‘‘seaman’s tenure and rela-
tionship to his ship and employer are not ter-
minated by the mere expiration of articles.”’ Na-
tional Labor Relations Board v. Waterman Steam-
ship Corp., 309 U. S. 206, 218; cf. South Atlantic
Steamship Co. v. National Labor Relations Board,
116 F. (2d) 480 (C. C. A. 5), certiorari denied, 313
U. S. 582.
This Court’s decision in the Waterman case is
direetly in point. The differences in the evidence
upon which petitioner relies are matters of detail
and not of substance.
But in any event, petitioner’s contention, even
if true, is completely immaterial. For if the em-
ployment relation did terminate by the signing off
of articles, petitioner’s discriminatory refusal to
64
rehire the men because of their union activity was,
as the Board found in the alternative (R. 28n),
equally an unfair labor practice under Section
8 (3) and (1) of the Act. Phelps Dodge Corp. v.
National Labor Relations Board, 313 U. 8. 177.
ITI
PETITIONER WAS NOT IMPROPERLY EXCLUDED FROM
THE BALLOTING FOR COLLECTIVE BARGAINING REPRE-
SENTATIVES; IN ANY EVENT PETITIONER’S REFUSAL
TO BARGAIN VIOLATED SECTION 8 (1) AND (5) OF
THE ACT
Petitioner challenges (Br., pp. 32-33) the cer-
tification of the Union as exclusive representative,
and the consequent finding of re. sal to bargain,
on the ground that the Board refused to permit
employer representatives to be present at the bal-
loting conducted on one of its seven ships (see pp.
3-4, supra).
The court below (R. 770-771) held that in ex-
cluding petitioner’s representatives, the Board
acted within its discretionary power to govern the
conduct of elections. This ruling, which is in ac-
cord with the only other decision directly in point
(Marltin-Rockwell Corp. v. National Labor Rela-
tions Board, M6 F. (2d) 586 (C. C. A. 2), certio-
rari denied, 313 U. S. 594), is clearly correct.
While the presence of employer representatives
may be helpful to Board representatives who con-
duct the election in their duty to determine the
eligibility of the voters, the presence of company
65
representatives may have the effect, though per-
haps unintended, of inhibiting the employees so
that the election results do not reflect the free and
independent choice contemplated by the Act.“
Accordingly, as a general rule the Board has not
allowed employer representatives to be present at
the polls unless the labor organization involved
consents. Third Annual Report of the National
Labor Relations Board (1938), p. 147."
The dccisions of this Court recognize that the
Board has wide discretion in determining the steps
necessary to insure a fair election. ‘‘The control
of the election proceeding and the determination
of the steps necessary to conduct that election fairly
were matters which Congress entrusted to the
Board alone.’’ Nattonal Labor Relations Board v.
Waterman Steamship Corp., 309 U. 8. 206, 226; sce
also National Labor Relations Board v. Falk Corp.,
308 U. 8. 453, 458.
“As the court below stated: “* * * it [the Board]
may. take the view, as it evidently did in this instance, that
since the presence of such representatives, unléss’ consented
to, might operate in some degree to coerce the empioyees 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 representa-
tives present, and it is obvious that their presence is not
essential to a fair election” (R. 770-771).
‘* Employer representatives were not permitted to be pres-
ent at elections conducted by the old National Labor Board
which administered section 7 (a) of the National Industrial
Recovery Act. Lorwin & Wubnig, Labor Relations Boards
(Brookings Institution, 1935), pp. 159-161.
66
The Railway Labor Act, upon which the Na-
tional Labor Relations Act is modelled* specifi-
cally provides that the National Mediation Board
shall hold its elections ‘‘in such manner as shall
insure the choice of representatives by the em-
ployees without interference, influence, or coercion
exercised by the carrier.’’ Sec. 2 (9), 48 Stat.
1185 (45 U.S. C., See. 152 (Ninth)). It has been
the uniform practice under that statute not to per-
mit the representatives of employers to be present
at elections.“
' This result is consistent with, if not compelled
by, the basic theory of both the Railway Labor
Act and the National Labor Relations Act. Em-
ployees are to select their own collective bargain-
ing representatives, without interference by the
employer. Just as employees have no right to be
represented when the stockholders of a company
elect directors or directors choose personnel offi-
cers, SO it is none of the employer’s business whom
the employees choose to represent them. Cf. Na-
tional Labor Relations Board v. Jones Foundry
& Machine Co., 123 F. (2d) 552, 555 (C. C. A. 7).
Since the employer has no legitimate interest in the
** National Labor Relations Board vy. Jones & Laughlin
Steel Corp., 301 U. 8.1, 44; H. J. Heinz Co. v. National Labor
Relations Board, 311 U.S. 514, 524-525.
National Mediation Board, First Annual Report,
(1935), p. 4. The National Mediation Board has informed
the Department of Justice that its practice is not to permit
employer representatives to be present at elections.
67
result of the election, he has no legal standing to
be represented at the election.
Moreover, petitioner has not suggested and can-
not suggest any way in which the presence of its
representative would have affected the final re-
sult of the election.” The absence of an observer,
or of the correct observer, for one of the con-
testing labor organizations has been held to be
immaterial under the Railway Labor Act in the
absence of a showing that the election was not
honestly and fairly conducted. Virginian Ry. Co.
v. System Federation No. 40, 11 F. Supp. 621,
628, affirmed, 84 F. (2d) 641, affirmed, 300 U. S.
515; National Federation of Railway Workers v.
National Mediation Board, 110 F. (2d) 529, 534—
535 (App. D. C.), certiorari denied, 310 U. S. 628.
Even where statutes require that election officers
be appointed in a certain way or be divided be-
tween opposing parties, an election is not invali-
dated if the statute is not complied with as long
as the result of the election is not shown to be
affected. Choisser v. York, 211 Ill. 56, 71 N. E.
940; Gilleland v. Schuyler, 9 Kan. 569; People v.
* Any influence which tlie presence of its representative
might have had upon the election would have been in viola-
tion of the Act. When, during the oral argument (Tr. pp.
4-5), counsel for petitioner was asked by the Chairman of
the Board whether he claimed “that there was anything
wrong about the election or about the counting of the ballots,”
he replied only that he stood on his “objection to the ex-
clusion of any representative from this election for the pur-
pose of identifying voters or of observing the election.”
68
Cook, 8 N. Y. 67, 59 Am. Dec. 451; Ward v.
Kropf, 120 N. Y. Supp. 476; Hawthorne v. State,
116 Ala. 489, 22 So. 894; Sanders v. Lacks, 142 Mo.
255, 43 S. W. 653; State ex rel. McMillan v. Sadler,
25 Nev. 131, 58 Pac. 284; Carabajal v. Lucero, 22
N. Mex. 30, 158 Pac. 1088; Dial v. Hollandsworth
39 W. Va. 1, 19 S. E. 557. See 1 A. L. R. 1535,
1536."
Petitioner’s theory seems to be that the Board’s
failure to permit its observer to be present at the
election invalidated the certification, and that in
.the absence of a valid certification petitioner was
not obligated to bargain. But under the statute
an employer must bargain with the representative
chosen by the majority of his employers irrespec-
tive of whether any certification has been issued.
E. g., National Labor Relations Board v. Bradford
Dyeing Ass’n, 310 U.S. 318. Petitioner has never
suggested that the union has not represented a
majority of the employees.”
* For example, in Carabajal vy. Luceero, supra, an-eleetion
was not set aside, although all three judges, in violation of
statute, were members of the same political party.
** We do not, read the stipulation (R. 114), in which the
parties agreed that the validity of the certification depended
upon the validity of the Board’s ruling as to the exclusien of
company representatives from the election, as challenging
the fact that the union actually did obtain the majority of the
votes cast in the election. See Note 50, supra, p. 67.
69
CONCLUSION
For the foregoing reasons it is respectfully sub-
mitted that the judgment of the court below
should be affirmed.
CHARLES FaHy,
Solicitor General.
Rosert L. STERN,
Attorney.
/
VY
Rosert B. Warts,
General Counse?,
ERNEST A, GROSS,
Associate General Counsel,
Morris P. GLUSHIEN,
RutH WEYAND,
Atiorneys,
National Labor Relations Board.
Fepsrvuary 1942.
APPENDIX
1
The pertinent provisions of the National Labor
Relations Act (Act of July 5, 1935, ¢. 372, 49
Stat. 449; 29 U. S. C., Sec. 151 et seq.) are as
follows:
Sec. 2. When used in this Act—
x . * at
(3) The term ‘‘employee’’ shall include
any employee, and shall not be limited to
the employees of a particular employer,
unless the Act explicitly states otherwise,
and shall include any individual whose work
has ceased as a consequence of, or in con-
nection with, any current labor dispute or
because of any unfair labor practice, and
who has nct obtained any other regular and
substantially equivalent employment, but
shall not include any individual employed
as an agricuitural laborer, or in the domes-
tic service of any family or person at his
home, or any individual employed by bys
parent or apron.
-« * ~ *
Src. 7. Employees shall have the right to
~ self-organization, to form, join, or assist
labor organizations, to bargain collectively
through representatives of their own choos-
ing, and to engage in concerted activities,
for the purpose of collective bargaining or
other mutual aid or protection.
(70)
71
Sec. 8. It shall be an unfair iabor prac-
tice for an employer—
(1) To interfere with, restrain, or coerce
employees in the exercise of the rights
guaranteed in section 7.
. * * * 7
(3) By discrimination in regard to hire or
tenure of employment or any term or condi-
tion of employment to encourage or discour-
age membership in any labor organization:
* * ~ 7 -
(5) To refuse to bargain collectively with
the representatives of his empioyees, subject
to the provisions of Section $ (a).
Sec. 9. (a) Representatives designated or
selected for the purposes of collective bar-
gaining by the majority of the employees
in a unit appropriate for such purposes,
shall be the exclusive representatives of all
the employees in such unit for the purposes
of collective bargaining in respect to rates
of pay, wages, hours of employment, or
other conditions of employment : 5 eg
- ” * *
(ce) Whenever a question affecting com-
merce arises concerning the representation
- of employees, the Board may investigate
such controversy and certify to the. parties,
in writing, the name or names of the repre-
sentatives that have been designated or se-
lected. In any such investigation, the Boara
shall provide for an appropriate hearing
upon due notice, either in conjunction with
a proceeding under section 10 or otherwise,
and may take a secret ballot of employees,
or utilize any other suitable method to as-
certain such representatives.
* * ” * *
72
Sec. 10. willing
(ce) aes If u n all the testimony
taken the Board shall “ of the opinion that
any person named in the phot. te has en-
gaged in or is engaging in any such unfair
labor practice, then the Board shall state
its findings of fact and shall issue and cause
to be served on such perseun an order requir-
ing such person to cease and desist from
such unfair labor practice, and to take such
affirmative action, including reinstatement
of employees with or without back pay,
as_ will effectuate the policies of this
|” he
Sec. 13. Nothing i in this Act shall be con-
strued so as to interfere with or impede or
diminish iu any way the right to strike.
2
Sections 1 and 2 of the Act of March 3, 1835,
c. 40, 4 Stat. 775-776, as reenacted in Sections 292
and 293 of the Criminal Code, 35 Stat. 1146 and
now contained in 18 U.S. C. §§ 483 and 484, read
as follows:
Sec. 483. INcrTING REVOLT OR MUTINY ON
SHTPBOARD.
Whoever, being of the crew of a vessel
of the United States, on the high seas, or
on any other waters within the admiralty
and maritime jurisdiction of the United
States, endeavors to make a revolt or
mutiny on board such vessel, or combines,
conspires, or confederates with any other
person on board to make such revolt or
mutiny, or solicits, incites, or stirs up any
other of the crew to disobey or resist the
lawful orders of the master or other officer
of such vessel, or to refuse or neglect their
)
73
proper duty on board thereof, or to betray
their proper trust, or assembles with others
in a tumultuous and mutinous manner, or
makes a riot on board thereof, or unlaw-
fully confines the master or other command-
ing officer thereof, shall be fined not more
than $1,000, or imprisoned not more than
five years or both.
Sec. 484. REVOLT OR MUTINY ON SHIPBOARD.
Whoever, being of the crew of a vessel of
the United States, on the high seas, or on
any other waters within the admiralty and
maritime jurisdiction of the United States,
unlawfully and with force, or by fraud, or
intimidation, usurps the eommand of such
vessel from the master or other lawful offi-
cer in command thereof, or deprives him of
authority and command on board, or resists
or prevents him in the free and lawful exer-
cise thereof, or transfers such authority
and command to another not lawfully en-
titled thereto, is guilty of a revolt and
mutiny, and shall be fined not more than
$2,000 and imprisoned not more than ten
years.
3
A
Section 51 of the Act of June 7, 1872, c. 322, 17
Stat. 262, 273-274, as reenacted in the Revised
Statutes in 1878, Section 4596, reads as follows:
Whenever any seaman who has been law-
fully engaged, or any apprentice to the sea-
service, commits any of the following
offenses, he shall be punishable as follows:
First. For desertion, by imprisonment for
not more than three months, and by for-
feiture of all or any part of the clothes or
effects he leaves on board, and of all or any
part of the wages or emoluments which he
has then earned.
74
Second. For neglecting and refusing,
without reasonable cause, to join his ves-
sei, or to proceed to sea in his vessel, or for
absence without leave at any time within
twenty-four hours of the vessel sailing from
any port, either at the commencement or
during the progress of any voyage; or for
absence at any time without leave, and with-
out sufficient reason, from his vessel, or
from his duty, not amounting to desertion,
or not treated as such by the master; by im-
prisonment for not more then one month,
and also, at the discretion of .:e court, by
forfeiture of his wages, of not more than
two days’ pay, and, for every twenty-four
hours of absence, either a sum not exceeding
six days’ pay, or any expenses which have
been properly incurred in hiring a substi-
tute.
Third. For quitting the vessel without
leave after her arrival at her port of deliv-
ery, and before she is placed in security, by
forfeiture out of his wages of not more than
one month’s pay.
Fourth. For willful disobedience to any
lawful commands, by imprisonment for not
more than two months, and also, at the dis-
cretion of the court, by forfeiture out of his
wages of not more than four days’ pay.
Fifth. For continued willful disobedience
to lawful commands, or continued willful
neglect of duty, by imprisonment for not
more than six months, and also, at the dis-
. eretion of the court, by forfeiture, for every
twenty-four hours’ continuance of such dis-
obedience or neglect, of either a sum not
more than twelve days’ pay, or sufficient to
defray any expensas which have been prop-
erly incurred in hiring a substitute.
4%
cF
hy
~ Wel
~~.
ov
Sixth. For assaulting any master or mate,
by imprisonment for not more than two
years.
Seventh. For combining with any others
of the crew to disobey lawful commands, or
to neglect duty, or to impede navigation of
the vessel, or the progress of the voyage, by
imprisonment for not more than twelve
months.
Eighth. For willfully damaging’ the ves-
sel, or embezzling or willfully damaging any
of the stores or cargo, by forfeiture out of
his wages, of - sum equal in amount to the
loss thereby sustained, and also, at the dis-
eretion of the court, by imprisonment for
not more than twelve months.
Ninth. For any act of smuggling of
which he is convicted, and whereby loss or
damage is oceasioned to the master or
owner, he shal) be liable to pay such master
or owner such a sum as is sufficient to re-
imburse the master or owner for such loss
or damage; and the whole or any part of
his wages may be retained in satisfaction or
on account of such liability; and he shall
also be liable to imprisonment for a period
of not more than twelve months.
4
Section 4596 of the Revised Statutes, as
amended by Section 19 of the Act of December 21,
1898, c. 28, 30 Stat. 755, 760, reads as follows:
Sec. 4596. The words ‘‘domestic trade’’
in this.section shall include trade between
ports of the United States and trade be-
tween ports of the United States and the
Dominion of Canada, Newfoundland, the
West Indies, and Mexico. The words ‘‘for-
440963—42-—-—-6
76
eign trade’’ shall include trade between
ports of the United States and foreign
ports, except as above specified, and trade
between Atlantic and Pacific ports of the
United States. Whenever any seaman who
has been lawfully engaged or any appren-
tice to the sea service commits any of the
following offenses he shall be punishable as
follows:
First. For desertion, if the offense occur
at a port of the United States, or a for-
eign port in the domestic trade, by for-
feiture of all or any part of the clothes or
effects he leaves on board and of all or any
part of the wages or emoluments which he
has then earned. If the offense occur at
a foreign port in the foreign trade, by
forfeiture of all or any part of the clothes
or effects he leaves on board and of all or
any part of tle wages or emoluments which
he has then earned; and also, at the dis-
cretion of the court, by imprisonment for
not more than one month.
Second. For neglecting or refusing, with-
out reasonable cause, to join his vessel or
to proceed to sea in his vessel, or for ab-
sence without leave at any time within
twenty-four hours of the vessel’s sailing
from any port, either at the commencement
or during the progress of any voyage, or
for absence at any time without leave and
without sufficient reason from his vessel or
from his duty, not amounting to deser-
tion or not treated as such by the master,
if the offense occur at a port of the United
States or a foreign port in the domestic
trade, by a forfeiture from his wages of
not more than two days’ pay, or sufficient
to defray any expenses which have been
properly incurred in hiring a substitute:
77
or if the offense occur at a foreign port,
in the foreign trade, by a forfeiture from
his wages of not more than two days’ pay,
or, at the discretion of the court, by im-
prisonment for not more than one month.
Third. For quitting the vessel, in what-
ever trade engaged, at a foreign or domes-
tie port, without leave after her arrival at
her port of delivery and before she is placed
in security, by forfeiture from his wages
of not more than one month’s pay.
Fourth. For willful disobedience to any
lawful command at sea, by being, at the
option of the master, placed in irons until
such disobedience shall cease, and upon
arrival in port, if of the United States, by
forfeiture from his wages of not more than
four days’ pay, or upon arrival in a foreign
port by forfeiture from his wages of not
more than four days’ pay, or, at the discre-
tion of the court, by imprisonment for not
more than one month.
Fifth. For continued willful disobedience
to lawful command or continued willful neg-
lect of duty at sea by being, at the option
of the master, placed in irons, on bread and
water, with full rations every fifth day,
until such disobedience shall cease, and upon
arrival in port, if of the United States, by
forfeiture, for every twenty-four hours’
continuance of such disobedience or neglect,
of either a sum of not more than twelve
days’ pay or sufficient to defray any ex-
penses which have been properly incurred
in hiring a substitute, or upon arrival in a
foreign port, in addition to the above pen-
alty, by imprisonment for not more than
three months, at the discretion of the court.
Sixth. For assaulting any master or mate,
in whatever trade engaged, by imprison-
ment for not more than two years.
78
Seventh. For willfully damaging the ves-
sel, or embezzling or willfully damaging any
of the stores or cargo, in whatever trade
engaged, by forfeiture out of his wages of
@ sum equal in amount to the loss thereby
sustained, and also, at the discretion of the
court, by imprisonment for not more than
twelve months.
Eighth. For any act of smuggling for
which he is convicted, and whereby loss or
damage is occasioned to the master or
owner, in whatever trade engaged, he shall
be liable to pay such master or owner such
a sum as is sufficient to reimburse the mas-
ter or owner for such loss or damage; and
the whole or any part of his wages may
be retained in satisfaction or on a‘ ount of
such liability; and he shall be lial « to im-
prisonment for a period of not m :; than
twelve months.
5
Section 4596 of the Revised Statutes, as amended
by Section 7 of the Act of March 4, 1915, ¢. 153,
38 Stat. 1164, 1166-1167, and as now contained,
with subsequent immaterial amendments, in 46
U.S. C. See. 701, reads as follows:
VARIOUS OFFENSES ; PENALTIES
Whenever any seaman who has been law-
fully engaged or any apprentice to the sea
service commits any of the following of-
fenses, he shall be punished as follows:
First. For desertion, by forfeiture of all
or any part of the elothes or effects he
leaves or board and of all or any part of
the — or emoluments which he has then
earned.
79
Second. For neglecting or refusing with-
out reasonable cause to join his vessel or to
proceed to sea in his vessel, or for absence
without leave at any time within twenty-
four hours of the vessel’s sailing from any
Dort, either at the commencement or during
the progress of the voyage, or for absence
at any time without leave and without suffi-
cient reason from his vessel and from his
duty, not amounting to desertion, by for-
feiture from his wages of not more than
two days’ pay or sufficient to defray any
expenses which shall have been properly in-
curred in hiring a substitute.
Third. For quitting the vessel without
leave, after her arrival at the port of her
delivery and before she is placed in security,
by forfeiture from his wages of not more
than one month’s pay.
Fourth. For willful disobedience to any
lawful command at sea, by being, at the
option of the master, placed in irons until
such disobedience shall cease, and upon ar-
rival in port by forfeiture from his wages
of not more than four days’ pay, or, at the
discretion of the court, by imprisonment for
not more than one month.
lith. For continued willful disobedience
to lawful command or continued willful
neglect of duty at sea, by being, at the op-
tion of the master, placed in irons, on bread
and water, with full rations every fifth day,
until such disobedience shall cease, and upon
arrival in port by forfeiture, for every
twenty-four hours’ continuance of such diso-
bedience or neglect, of a sum of not more
than twelve days’ pay, or by imprisonment
for not more than three months, at the dis-
cretion of the court.
80
Sixth. For assaulting any master, mate,
pilot, engineer, or staff officer, by imprison-
ment for not more than two years.
Seventh. For willfully damaging the ves-
sel, or embezzling or willfully damaging any
of the stores or cargo, by forfeiture out of
his wages of a sum equal in amount to the
loss thereby sustained, and also, at the dis-
cretion of the court, by imprisonment for
not more than twelve months.
Eighth. For any act of smuggling for
which he is convicted and whereby !oss or
damage is occasioned to the master or
owner, he sliall be liable to pay such mas-
ter or owner such a sum as is sufficient to
reimburse the master or owner for such
loss or damage, and the whole or anv part
of his wages may be retained in satisfaction
or on account of such liability, and he shail
be liable to imprisonment for a period of
not more than twelve months.
6
Section 20 of the Clayton Act of October 15,
1914, 38 Stat. 730, 738, 29 U. S. C. § 52, reads as
iollows:
No restraining order or injunction shal!
be granted by any court of the United
States, or a judge or the judges thereof, in
any case between an employer and em-
ployees, or between employers and employ-
ees, or between employees, or between per-
sons employed and persons seeking employ-
ment, involving, or growing out of, a dispute
concerning terms or conditions of. employ-
ment, unless necessary to prevent irrepara-
ble injury to property, or to a property
right, of the party making the application,
81
for which injury there is no adequate rem-
edy at law, and such property or property
right must he described with particularity
in the application, which must be in writ-
ing and sworn to by the applicant or by
his t or attorney.
And no such restraining order or in-
junction shall prohibit any person or per-
sons, whether singly or in concert, from
terminating any relation of employment, or
from ceasing to perform 7 work or labor,
or from recommending, advising, or per-
suading others by peaceful means so to do;
or from attending at any place where any
such person or persons may lawfully be,
fcr the purpose of peacefully obtaining or
communicating inf
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