On Petition to Enforce an Order of the National Labor Relations Board.
Before BIGGS, MARIS, and GOODRICH, Circuit Judges.
On March 31, 1941, the National Labor Relations Board entered its order pursuant to Section 10(c) of the National Labor Relations Act, 29 U.S.C.A. § 160(c), requiring the respondent, Delaware-New Jersey Ferry Company to cease and desist from dominating or interfering with the formation or administration of the Engineers and Engine Committee (the Engine Committee) and Captains and Deck Hands committee (the Deck Committee), from contributing to the support of these committees, from giving effect to any agreement made by it with these committees (without prejudice, however, to any rights or benefits conferred upon individual employees under the contracts), from refusing to bargain collectively with United Marine Division, Local No. 333, affiliated with the American Federation of Labor and the International Longshoremen's Association, as the exclusive representative of the captains, mates, engineers, deck hands, oilers, firemen, bridgemen and watchmen of the New Castle-Pennsville line operated by the respondent between New Castle, Delaware, and Pennsville, New Jersey, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and from in any other manner interfering with or coercing its employees in the exercise of their right of self-organization for the purpose of engaging in concerted activities in respect to collective bargaining, as provided by Section 7 of the Act, 29 U.S.C.A. § 157.
The Board's order also requires the respondent, by way of affirmative action, to withdraw all recognition from the Engine Committee and the Deck Committee as the representatives of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, and other conditions of employment and to disestablish these committees; also upon request to bargain collectively with United Marine Division, Local No. 333, as the exclusive representative of the employees heretofore named of the New Castle-Pennsville line; upon application to offer to the employees who struck on July 15, 1940, and who have not been already reinstated, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges in the manner provided in the board's opinion; to make whole those employees for any loss of pay which they might suffer by reason of the respondent's refusal to reinstate them or to place them on a preferential list by paying to each of them a sum of money equal to that which each would have earned according to a formula prescribed by the Board and to post the usual notices to the effect that the respondent would no longer engage in the unfair labor practices prohibited by the Board's order. The case comes before this court upon a petition of the Board seeking to enforce the order referred to.
The respondent is a Delaware corporation, having its principal office and place of business in Wilmington, Delaware. This court has jurisdiction of the cause by virtue of the provisions of Section 10(e) of the Act, 29 U.S.C.A. § 160(e). The espondent operates ferry services on two routes between Delaware and New Jersey. One route, as we have indicated heretofore, is between New Castle, Delaware, and Pennsville, New Jersey. The other route is between the Marine Terminal at Wilmington, Delaware, and Pennsgrove, New Jersey. In the year 1939 nearly 3,000,000 persons and more than 1,250,000 vehicles were transported upon the two lines between Delaware and New Jersey. There is no doubt that the operations of the respondent were in interstate commerce and that the occurrence of the strike referred to did affect commerce within the meaning of Section 10(a) of the National Labor Relations Act, 29 U.S.C.A. § 160(a). These operations of the respondent in fact constitute a not unsubstantial part of the commerce between the two states.
The complaint charged that the respondent had dominated and interfered with both the formation and administration of the Engine Committee and the Deck Committee. Specifically the complaint charges and the Board found that the respondent had contributed to the support of the Engine Committee and of the Deck Committee in violation of Section 8(2) of the Act, 29 U.S.C.A. § 158(2), had refused to bargain collectively with Local No. 333 of the United Marine Division in violation of Section 8(5), 29 U.S.C.A. § 158(5), and by threats and warnings and by contracts entered into by it with the Engine Committee and the Deck Committee had interfered with and coerced its employees in the exercise of the rights guaranteed to them by Section 7, 29 U.S.C.A. § 157, in violation of Section 8(1) of the Act, 29 U.S.C.A. § 158(1).
The Board held extended hearings and found as a fact that the charges specified by the complaint were supported by the evidence adduced. We have examined carefully the transcript of the proceedings before the Board filed in this court. We conclude that there would be small point in a reiteration of the testimony. The evidence supports very fully the Board's conclusions as to the unfair labor practices of the respondent as charged in the complaint. Section 10(e) of the Act, 29 U.S.C.A. § 160(e), provides that the findings of the Board upon questions of fact, if supported by evidence, shall be conclusive. The decisions which hold that this section means what it says are so numerous as to provide little point in citing them. We think that it is of more importance to deal with other points specifically raised by the respondent in opposition to the enforcement of the Board's order.
The respondent contends that the charge of the complaint that the respondent was guilty of unfair labor practices within the meaning of Section 8(2) of the Act, 29 U.S.C.A. § 158(2), in that it dominated both the Engine Committee and Deck Committee is already res adjudicata and was disposed of in the respondent's favor by reason of the decision of this court at No. 6132, National Labor Relations board v. Delaware-New Jersey Ferry Co., 3 Cir., 90 F.2d 520, certiorari denied 302 U.S. 738, 58 S. Ct. 141, 82 L. Ed. 571. A very brief resume of the facts of the case which was then before this court will demonstrate the error of the respondent's contention.
The complaint in the case cited was filed in October, 1935. The respondent then employed twelve licensed engineers. These engineers and the respondent got into a dispute regarding wages and hours of labor and the engineers authorized Marine Engineers' Beneficial Association, No. 13, (M.E.B.A.) to bargain collectively with the respondent on their behalf. The respondent refused to bargain and charges were filed with the Board. The Board issued its complaint and, after hearing, found that the respondent by reason of this refusal had engaged in an unfair labor practice affecting commerce within the meaning of Section 8(5) and Section 2(6) and (7) of the Act, 29 U.S.C.A. §§ 158(5), 152(6) and (7), and entered an appropriate order to compel the respondent to cease and desist from this practice.
In April, 1936, the Board filed a petition in this court seeking to have us enforce the order referred to. In October, 1936 the respondent filed its own petition stating that after the decision and order of the Board, the engineers had created a new negotiating committee and that this committee had negotiated a contract on behalf of the twelve engineers with the respondent which had been executed by them. The Ferry Company took the position before this court at No. 6132 that since each of the engineers had entered into a contract with the respondent allegedly terminating the difficulties between them, the questions raised by the Board's petition to enforce had become moot. This court agreed with this contention and accordingly the petition was dismissed.
It will be observed that our decision dealt only with the licensed engineers and had nothing to do with any other employees of the respondent. The complaint in the case now at bar was filed in September, 1940. It charges unfair labor practices to the Ferry company in that it formed and dominated the Engine and Deck Committees and refused to bargain collectively with United Marine Division, Local No. 333, allegedly in derogation of the rights guaranteed to the respondent's employees by Section 7 of the Act, 29 U.S.C.A. § 157, in violation of Sections 8(1), (2) and (5), 29 U.S.C.A. § 158 (1), (2) and (5) The Board in its decision based upon the complaint filed in October, 1935 found that the Ferry Company had been guilty of unfair labor practice in refusing to bargain with the M.E.B.A. in violation of Section 8(5), 29 U.S.C.A. § 158(5). The only similarity between the old complaint (that which was before this court as part of the record at No. 6132) and the new complaint, upon which the Board's present order is based, is that both allege violation of the same sections of the National Labor Relations Act, viz., Section 8(5), 29 U.S.C.A. § 158(5), and Section 2, subsections (6 and 7), 29 U.S.C.A. § 152(6) and (7).
While the testimony introduced before the Board in the previous proceedings was made part of the record in this cause, additional evidence was adduced before the Board in the case at bar. In the instant case neither the Board nor the respondent was concerned directly with the M.E.B.A. The status of neither the Engine Committee nor the Deck Committee was the subject of any order or adjudication by the Board or by this court in the original proceeding and, at the time of the hearings before the Board upon the original complaint, United Marine Division, local no. 333, had not entered the picture. We must conclude that the claim that the issues presented by the petition at bar are res adjudicata by reason of the previous decision of this court at No. 6132 cannot be sustained. That this conclusion is correct is made all the more apparent by the fact that this court in its previous decision did not pass upon any of the issues presented by the Board's petition then pending but declared simply the questions raised by it were moot.
The respondent also contends that the proceedings before the Board constituted a mistrial because the Trial Examiner declined to issue a subpoena for Bennett F. Schauffler, the Board's Regional Director in the Philadelphia area. The Ferry Company takes the position that it was not required to comply with the Board's Rules and Regulations (See Article II, Section 21) in respect to subpoenas which require that the applicant for a subpoena shall specify the name of the witness, and the nature of the facts to be proved. The respondent concedes that it did not comply with this rule, but contended before the Board and contends now that it was entitled to the subpoena as a matter "of right". In support of its position the Ferry Company cites the decisions of Inland Steel Company v. National Labor Relations Board, 7 Cir., 109 F.2d 9, and North Whittier Heights Citrus Association v. National Labor Relations Board, 9 Cir., 109 F.2d 76. The respondent, however, admits in its answer that it refused to bargain with the Local on ...