Southern SS Co. v. NLRB, 316 U.S. 31 (1942)

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Filed: 1942-04-06Precedential Status: PrecedentialCitations: 316 U.S. 31Docket: 320

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316 U.S. 31
62 S.Ct. 886
86 L.Ed. 1246

SOUTHERN S.S. CO.
v.
NATIONAL LABOR RELATIONS BOARD et al.
No. 320.
Argued Feb. 9, 10, 1942.
Decided April 6, 1942.

Messrs. Joseph W. Henderson and Randolph W. Childs, both of
Philadelphia, Pa., for petitioner.
Mr. Robert B. Watts, of Washington, D.C., for respondent N.L.R.B.
Mr.Wm. L. Standard, of New York City, for respondent, National
Maritime Union of America.
Mr. Justice BYRNES delivered the opinion of the Court.

1

Upon the petition of a union not a party to the present suit, the National Labor
Relations Board ordered an election among petitioner's unlicensed employees to
determine their collective bargaining representative. The elections were held on
board seven of petitioner's vessels during October, 1937. In the case of the
election on board the S.S. City of Houston, the labor organizations involved
objected to the presence of any representative of the petitioner during the
voting, and consequently none was admitted by the Board. No such objection
was raised with respect to the subsequent balloting, and petitioner's
representatives were present while the vote was taken on board the remaining
six vessels. The National Maritime Union obtained a clear majority of all the
votes cast. Because of the exclusion of its representative from the voting on the
S.S. City of Houston, petitioner objected to the certification of the N.M.U. as
the exclusive bargaining representative of the employees in the unit. On
January 26, 1938, the Board rejected petitioner's contention, and issued a
certification order. 4 N.L.R.B. 1140.

2

Six months later, on July 26, the N.M.U. filed charges against petitioner, which
it amended on November 22. On November 23, the Board issued a complaint
in which it accused petitioner of violations of Sections 8(1), (3) and (5) of the
National Labor Relations Act. U.S.C., Title 29, Section 158(1), (3)(5), 29
U.S.C.A. § 158(1, 3, 5). The allegations of the complaint were that the N.M.U.
had been certified in January as exclusive bargaining representative, that
petitioner had consistently refused since that time to bargain with the Union,
that as a result of this refusal to bargain a strike had occurred on July 18 aboard
petitioner's S.S. City of Fort Worth while docked at Houston, Texas, that upon
the City of Fort Worth's return to Philadelphia on July 25 five members of the
crew1 were discharged because of their membership and activity in the Union
and particularly because of their participation in the strike, and that as a result
of these discharges other members2 of the crew of the Fort Worth had gone on
strike while the vessel was at home dock in Philadelphia. In its answer to this
complaint, petitioner generally denied these allegations and chiefly contended:
first, that it had been under no obligation to bargain with the N.M.U. because
the Board's refusal to permit petitioner to be represented at the election aboard
the S.S. City of Houston rendered the entire certification proceedings void; and
second, that the discharge of the five members of the City of Fort Worth was
not an unfair labor practice because it was based upon their misconduct in
striking on July 18 while under Shipping Articles, away from home port, and
on board ship.

3

After the usual proceedings, on April 22, 1940, the Board issued its findings of
fact, conclusions of law, and order. 23 N.L.R.B. 26. Its findings, which must be
set out in some detail, follow:

4

After the election and the certification of the N.M.U. in January, 1938, the
Union made persistent efforts through its representatives to arrange a
bargaining conference with officials of the petitioner. Every such attempt was
frustrated by the latter, who refused even to answer the requests until August. In
that month the Union was notified that petitioner would not undertake to
bargain with it 'until the validity of the Board's certification was settled by the
Board and the courts.'

5

On July 17, while the City of Fort Worth was docked at Houston, thirteen
unlicensed members of the crew met in a union hall. They decided to strike the
next day to compel petitioner to recognize the Union and to issue to the Union's
shore delegates the passes without which they could not board petitioner's
vessels. At 8 o'clock the following morning the strike began. One of the men,
Tracey, failed to turn the steam 'on deck' for use in loading the cargo. He was
then asked by the first assistant engineer why he had failed to do so, and
answered that a strike was on, explaining the strikers' demands. When the first
assistant engineer turned on the steam himself, Tracey persuaded Braun, the
fireman, to leave his post. And Ferguson, who came on duty just at that
moment to replace Braun as fireman, also refused to tend the fires. The second
assistant engineer then undertook to tend the fires himself, and Tracey,
Ferguson and Braun went to the poop deck where the rest of the strikers were
sitting. The poop deck is the usual meeting place of the crew when not on duty.

6

From that time until evening the strikers sat quietly by, engaging in no violence
and not interfering with the officers of the ship or the non-striking members of
the crew who proceeded with the loading of the cargo. The strikers did not
'claim to hold the ship in defiance of the right of possession of the owner'. 3 But
when the captain ordered them to return to work, they refused. They continued
to refuse after a deputy United States Shipping Commissioner came aboard and
read to them that provision of their shipping articles in which they had
promised 'to be obedient to the lawful commands' of the master. Late in the
afternoon, although he had not been authorized to do so, petitioner's attorney in
Houston promised the Union's attorney in that city that he would meet with the
latter during the following week to negotiate an agreement and that he would
recommend to petitioner that passes be granted to shore delegates. As a result of
this promise, the strike was ended at about 7 p.m. and the ship sailed on
schedule at about 9 p.m.

7

The return voyage to Philadelphia was marked by no further difficulty.
However, during the course of it the captain decided not to reship five of the
strikers.4 When the ship reached port on July 25 and the men signed off the
shipping articles, these five were informed that they would not be reshipped.
Most of them had been members of the City of Fort Worth's crew continuously
for a considerable length of time.5 It was the custom of petitioner to have the
seamen sign new articles for the next voyage when signing off the old, but even
when this was not done the men considered themselves employed for the next
voyage unless notified to the contrary. Under these circumstances the Board
found that the five men in question had actually been discharged and that their
employment had not simply ended as of course when the shipping articles
expired. Seven6 of the other men who had engaged in the Houston strike
immediately struck again in protest against the discharge of their fellows. On
the basis of this evidence the Board found that both the strike at Houston on
July 18 and the strike at Philadelphia on July 25 were caused by petitioner's
unfair labor practices. And it made a specific finding with respect to each of the
five men that the discharge was based upon participation in the Houston strike.
It concluded that petitioner had interfered with its employees' right to organize
and bargain collectively, in violation of § 8(1); that it had discriminated with
regard to tenure of employment, in violation of § 8(3); and that it had refused to
bargain with the authorized representative of its employees, in violation of §
8(5).

8

Consequently, it ordered petitioner to cease and desist: (a) from discouraging
membership in the N.M.U. or any other labor organization by discriminating in
regard to employment; (b) from refusing to bargain collectively with the
N.M.U.; and (c) from interfering with, restraining, or coercing its employees in
any way in the exercise of their right to organize and bargain collectively. In
addition, and 'in order to effectuate the policies of the Act,' the order included
the following affirmative requirements: (a) that petitioner bargain with the
N.M.U.; (b) that it reinstate with back pay the five men discharged; (c) that,
upon application, it offer immediate reinstatement to the July 25th strikers; and
(d) that it post notices of its intention to conform to this order.

9

Petitioner sought to have this order set aside by the Circuit Court of Appeals.
The Circuit Court, however, sitting en banc, and with one judge dissenting,
entered a decree enforcing the order with a single minor modification.7 3 Cir.,
120 F.2d 505. We granted certiorari because of the importance of the matters
involved, and because of an asserted conflict with decisions of this Court and of
other Circuit Courts of Appeal.

10

Petitioner's contentions in this Court are: (1) that the refusal by the Board to
permit a company representative aboard the S.S. City of Houston during the
voting vitiated the entire election and certification proceeding and absolved
petitioner of any duty under the Act to bargain with the N.M.U.; (2) that the
employment of the seamen involved automatically terminated when they
signed off the shipping articles in Philadelphia, so that they cannot be said to
have been 'discharged'; and (3) that participation in the Houston strike by the
discharged seamen was misconduct of such a character that the Board cannot
order their reinstatement.

11

The first two of these arguments are without substance. The Board enjoys a
wide discretion in determining the procedure necessary to insure the fair and
free choice of bargaining representatives by employees. N.L.R.B. v. Waterman
Steamship Corporation, 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 704;
N.L.R.B. v. Falk Corporation, 308 U.S. 453, 458, 60 S.Ct. 307, 310, 84 L.Ed.
396. It is wholly reasonable to remove any possibility of intimidation by
conducting the election in the absence of the employer's representatives. With
respect to whether the five men in question were actually discharged upon the
ship's return to Philadelphia, petitioner concedes that the formal signing off of
the shipping articles was not conclusive. The tenure of their employment must
be determined in the light of all the evidence concerning petitioner's
employment customs and practices. N.L.R.B. v. Waterman Stteamship Corp.,
309 U.S. 206, 218, 60 S.Ct. 493, 500, 84 L.Ed. 704. The argument here
therefore comes to this, that this record does not warrant a finding that the
tenure of employment survived the termination of the shipping articles. An
examination of the record convinces us that the concurrent finding of the Board
and the Circuit Court on this question should not be disturbed.

12

The situation, then, is one in which an employer indulges in an unfair labor
practice, a strike results, and several men are discharged for participating in the
strike. If there were no more to the case, and the Board found that it would
serve to effectuate the policies of the Act to reinstate the strikers, an order
requiring reinstatement would undoubtedly be enforceable. National Labor
Relations Board v. Stackpole Carbon Co., 3 Cir., 105 F.2d 167. But there is
more to this case. The strike was conducted by seamen on board a vessel and
away from home port. The question is whether this circumstance renders it an
abuse of discretion for the Board to order the reinstatement of the strikers. We
think that it does.

13

Ever since men have gone to sea, the relationship of master to seaman has been
entirely different from that of employer to employee on land. The lives of
passengers and crew as well as the safety of ship and cargo are entrusted to the
master's care. Every one and every thing depend on him. He must command
and the crew must obey. Authority cannot be divided. These are actualities
which the law has always recognized. On the one hand, it has imposed
numerous prohibitions against conduct by seamen which destroys or impairs
this authority. We shall consider in a moment the nature and scope of the
criminal sanctions imposed in case of revolt and mutiny. But it is worth noting
here that the form of the 'shipping articles' which the master and every member
of the crew must sign prior to the voyage has been carefully prescribed by
Congress, and that these articles contain this promise: 'And the said crew agree
* * * to be obedient to the lawful commands of the said master * * * and of
their superior officers in everything relating to the vessel, and the stores and
cargo thereof, whether on board, in boats, or on shore * * *.' U.S.C., Title 46,
§§ 564, 713, 46 U.S.C.A. §§ 564, 713. On the other hand, workers at sea have
been the beneficiaries of extraordinary legislative solicitude, undoubtedly
prompted by the limits upon their ability to help themselves. The statutes of the
United States contain elaborate requirements with respect to such matters as
their medicines, clothing, heat, hours and watches, wages, and return
transportation to this country if destitute abroad. U.S.C.,, Title 46, §§ 651—
692, 1131, 46 U.S.C.A. §§ 651—692, 1131. It is in this setting of fact and law
that we must test the validity of the Board's order of reinstatement.

14

Petitioner contends that the strike aboard the City of Fort Worth at the dock in
Houston was mutiny and violated Sections 292 and 293 of the Criminal Code.
Those sections provide:

15

's 292. Inciting revolt or mutiny on shipboard. Whoever, being of the crew of a
vessel of the United States, on the high seas, or 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 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
unlawfully confines the master or other commanding officer thereof, shall be
fined not more than $1,000 or imprisoned not more than five years, or both.
U.S.C., Title 18, § 483, 18 U.S.C.A. § 483.

16

's 293. 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 command of such vessel from the
master or other lawful officer in command thereof, or deprives him of authority
and command on board, or resists or prevents him in the free and lawful
exercise thereof, or transfers such authority and command to another not
lawfully 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.' U.S.C., Title 18, §
484, 18 U.S.C.A. § 484.

17

The Board's defense to this contention is two-fold. It argues, first, that the
conduct of the strikers did not violate either of these sections, and second, that
even if it did the violation does not bar their reinstatement.

18

First. We think that the strike aboard the City of Fort Worth on July 18 was in
violation of §§ 292 and 293. It may hardly be disputed that each of the strikers
resisted the captain and other officers in the free and lawful exercise of their
authority and command, within the meaning of § 293, or that they combined
and conspired to that end, within the meaning of § 292. Deliberately and
persistently they defied direct commands to perform their duties in making
ready for the departure from port. It is true that they did not engage in violence
or prevent the other men and officers from proceeding with preparations for the
voyage.8 But short of that, they did what they could to prevent the ship from
sailing. In the words of the striker Tracey, had they not believed that their
demands had been satisfied, 'we would still be sitting there'. There is no doubt
that they undertook to impose their will upon the captain and officers.

19

None of these facts is denied by the respondents or by the Circuit Court.9
Indeed it is admitted that had the strike occurred on the high seas, the
participants would have been guilty of mutiny. But a distinction is said to lie
between strikes at sea and at dock. To determine the validity of this distinction
we turn first to the words of the statute. They are plain enough: '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', etc. It has long been settled that the admiralty and maritime jurisdiction
of the United States includes all navigable waters within the country. The
Genesee Chief, 12 How. 443, 13 L.Ed. 1058.10 The water in the harbor of
Houston is certainly navigable, and a boat at dock there is obviously within the
territorial limits of the United States. The words of the statute alone, therefore,
do not warrant an exception in the case of a vessel situated as the City of Fort
Worth was when the strike occurred.

20

Nor are we referred to the decision of any court in which such an exception has
been implied. Under the original Mutiny Act of 1790,11 Justice Story held
without hesitation that a refusal to work while a vessel was in an American
harbor was a violation of the statute.12 The act of 1790 was supplanted in 1835
by a statute which, with only minor changes, now appears as Sections 292 and
293 of the Criminal Code, set out above.13 Since 1835, whenever the question
has arisen, the courts have held that a mutiny may occur in a harbor, either
foreign or domestic, as well as at sea.14 It is true, however, that in none of these
cases does it expressly appear that the vessel was tied to a dock as was the City
of Fort Worth in this case. And in the Rees case, the court specifically reserved
the question of whether the Mutiny Act bars a strike on board a vessel so
situated. 95 F.2d 784, at page 792.

21

It was therefore strictly accurate for the Circuit Court of Appeals to observe that
'the question of the right of seamen to strike under the circumstances of the case
before us is still an open one.' (120 F.2d 510.) On this assumption, however, it
proceeded to conclude that the necessity for absolute authority in the master is
so considerably diminished when the ship is moored in a 'safe' port that a strike
in such circumstances should not be held to violate the Act. This theory has
been regarded with favor by a number of courts an commentators15 and is said
to conform more closely to changed conceptions with respect to the freedom of
workers on land or sea to organize, to bargain, and to use economic weapons to
enforce their demands.

22

The difficulty with the contention is that it ignores the plain Congressional
mandate that a rebellion by seamen against their officers on board a vessel
anywhere within the admiralty and maritime jurisdiction of the United States is
to be punished as mutiny. If this mandate is to be changed, it must be changed
by Congress and not by the Courts. If further proof be needed of a
Congressional belief that the requirements of discipline during a voyage do not
vary with each change in circumstance, it may be found in the shipping articles
to which we have already referred. For in those articles the members of the
crew are obliged to promise to obey lawful commands 'whether on board, in
boats, or on shore'. And before a seaman's certificate is issued by the Bureau of
Marine Inspection and Navigation the applicant must take an oath to '* * *
carry out the lawful orders of my superior officers on shipboard.'16 The lower
court expressed the opinion, 'Upon reason, however, there is no sound basis for
depriving seamen of this right (to strike) when as here their vessel is moored to
the dock in a safe domestic port.' But the soundness or unsoundness of the
reasoning is for the determination of Congress. As recently as 1939 two bills
were introduced in the House of Representatives for the purpose of limiting the
scope of Sections 292 and 293 to vessels 'under way on the high seas'. H.R.
3427, 3428, 76th Congress, 1st Session. The United States Maritime
Commission Communicated to the House Committee on Merchant Marine and
Fisheries its firm objection to the measures,17 and they were never enacted.
When the legislative purpose is so plain, we cannot assume to do that which
Congress has refused to do.

23

In any event, a sweeping requirement of obedience throughout the course of a
voyage is certainly not without basis in reason. The strategy of discipline is not
simple. The maintenance of authority hinges upon a delicate complex of human
factors, and Congress may very sensibly have concluded that a master whose
orders are subject to the crew's veto in port cannot enforce them at sea.
Moreover, it is by no means clear that a ship moored to a dock is 'safe' if the
crew refuses to tend it, as the strikers did at Houston. At the very least, steam
must be maintained to provide light and fire protection.18 The damage to the
Normandie is grim enough proof that the hazard of fire is ever present. 19 It is
not enough to say that in the case before us the strikers did not prevent these
precautions from being taken; only the efforts of others averted the dangers to
which they opened the door.

24

We conclude that the Circuit Court of Appeals erred in holding that the strike at
Houston did not violate Sections 292 and 293.

25

Second. Assuming that the strike did violate these sections, the Board contends
that the reinstatement provisions of its order were nevertheless valid. Section
10(c) of the National Labor Relations Act, 29 U.S.C.A. § 160(c) permits the
Board to require an employer who has committed an unfair labor practice to
take 'such affirmative action, including reinstatement of employees * * *, as
will effectuate the policies of the Act (this chapter).' This authorization is of
considerable breadth, and the courts may not lightly disturb the Board's choice
of remedies. But it is also true that this discretion has its limits, and we have
already begun to define them. National Labor Relations Board v. Fansteel
Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599;
Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct.
77, 85 L.Ed. 6. A complete definition of course was not and could not have
been attempted in those cases. Nor will it be attempted here. It is sufficient for
this case to observe that the Board has not been commissioned to effectuate the
policies of the Labor Relations Act so single-mindedly that it may wholly
ignore other and equally important Congressional objectives. Frequently the
entire scope of Congressional purpose calls for careful accommodation of one
statutory scheme to another, and it is not too much to demand of an
administrative body that it undertake this accommodation without excessive
emphasis upon its immediate task.

26

This was the kind of consideration for which the present case called. To bolster
its claim that it responded to this call, the Board relies upon what it asserts to
have been the 'technical' nature of the violation of §§ 292 and 293. Specifically,
it points to the comparative safety of the ship when moored to the dock, the
absence of volence, and the double character of the ship as the strikers' place of
employment and their home during the course of the voyage. While we have no
doubt that the danger to the vessel was considerably less than it would have
been had the strike occurred at sea, we have already indicated that it was
certainly present and that considerations other than immediate danger to the
ship require maintenance of discipline throughout the voyage. Likewise, the
absence of violence was a fortunate feature of the affair, but the flouting of the
captain's authority was nevertheless deliberate and complete. Finally, for these
strikers to remain aboard the ship was indeed an act of very different
significance than for strikers at an industrial plant to remain inside a factory.
But in one respect at least the comparison is unfavorable to the strikers here. As
a practical matter, the City of Fort Worth was definitely wrested from the
control of its officers. In an industrial plant the employer is confronted only
with the necessity of placing new men at the machines. But under the law
petitioner was required to furnish living quarters to any new crew whom it
might have hired for the return voyage to Philadelphia. This meant the removal
of the strikers from their quarters as well as their posts of duty. It is difficult to
imagine that they would have surrendered their jobs and their quarters without
a struggle. They asserted their right to occupy the quarters and to eat the food
which the master was required to furnish them as members of the crew and yet
to refuse to work or to obey his orders. See United States v. Albers, 2 Cir., 115
F.2d 833, at page 836. In fact, as we have noted, they intended, according to the
witness Tracey, to 'still be sitting there' if petitioner had not capitulated to their
demands.

27

We cannot ignore the fact that the strike was unlawful from its very inception.
It directly contravened the policy of Congress as expressed in §§ 292 and 293,
and it was more than a 'technical' violation of those provisions. Consequently,
and despite the initial unfair labor practice which caused the strike, we hold
that the reinstatement provisions of the order exceeded the Board's authority to
make such requiremens 'as wll effectuate the policies of the Act (this
chapter)'.20

28

It should be stressed that the view we have taken does not prevent the redress
of grievances under the Act. At any time following the certification of the
N.M.U. in January, 1938, the union and the Board could have secured the
assistance of the courts in forcing petitioner to bargain. The importance of
seeking such assistance promptly is strikingly illustrated in this case.21 Had the
union and the Board done so, the unfortunate occurrence at Houston might have
been averted. And what is more, nothing that we have said would prevent the
union from striking, picketing or resorting to any other means of self-help, so
long as the time and place it chooses do not come within the express
prohibition of Congress.

29

The case is remanded to the Circuit Court of Appeals with instructions to limit
its decree of enforcement to those provisions of the Board's order requiring
petitioner to bargain with the N.M.U. and to post notices to that effect, but to
eliminate the other provisions of the order.

30

Reversed.

31

Mr. Justice REED, dissenting.

32

To support its judgment of reversal this Court relies upon the employees'
violation of §§ 292 and 293 of the Criminal Code, 18 U.S.C.A. §§ 483, 484, as
justification for the Steamship Company's discharge of its seamen. If the
seamen were discharged not for labor activity but because of the commission of
serious crime, National Labor Relations Board v. Fansteel Metallurgical Corp.,
306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599, would be authority
for the Court's holding. It was there decided that § 2(3) of the Labor Act did not
preserve a striker's eligibility for reinstatement by the Board under § 10(c), if
the striker was discharged for reasons other than 'union activity or agitation for
collective bargaining,' e.g., criminal acts. 306 U.S. at page 255, 59 S.Ct. at page
496, 83 L.Ed. 627, 123 A.L.R. 599. The Court recognizes that where 'an
employer indulges in an unfair labor practice, a strike results and several men
are discharged for participating in the strike,' and nothing more appears, the
Labor Board may properly reinstate the strikers. It concludes, however, that
where the strike provoked by the unfair practices is itself unlawful, the Board,
regardless of the circumstances, loses its power to reinstate after discharge. This
position, we think, unduly expands judicial review of the Board's discretionary
power of reinstatement under § 10(c), 29 U.S.C.A. § 160(c) and is not
supported by the Fansteel decision.

33

This Court recognized in the Fansteel case that the Board had discretion over
reinstatement. 306 U.S. 258, 59 S.Ct. 497, 83 L.Ed. 627, 123 A.L.R. 599. It
was thought that however wide that discretion might be, 'its limits were
transcended' in that case. The ninety-five men in Fansteel were discharged 'for
the seizure and retention of the buildings.' 306 U.S. 252, 59 S.Ct. 494, 83 L.Ed.
627, 123 A.L.R. 599. But those men held the buildngs from February 17 until
February 26. They disobeyed a court injunction order to surrender the factory,
and successfully resisted by force the sheriff's efforts to enforce it. Only on his
second attempt, with an increased number of deputies, did the sheriff
accomplish their eviction and arrest. 306 U.S. 248, 249, 59 S.Ct. 492, 493, 83
L.Ed. 627, 123 A.L.R. 599.

34

Nothing approaching such disorder occurred here. The seamen's conduct did
not affect the safety of the vessel. The only evidence of violation of the statutes
is that the orders to load were ignored. We may assume, for this dissent, that
this resultedin a violation of the criminal statutes. the Board found that the
respondent refused to bargain collectively with the Union, that primarily this
precipitated the strike, and that the respondent was not warranted in discharging
any employee solely because of the strike. It further found that the strikers did
not hold the ship in defiance of the owner nor did they trespass. The Board
found in each instance that the discharges were not for disobeying orders but for
striking, for peacefully, albeit unlawfully, resorting to self-help in retaliation
against denial of their rights.1 On the basis of these findings, supported by
substantial evidence, the Board exercised its discretion to reinstate these men.

35

We think that under these circumstances, it acted within its authority. We can
see no justification for an iron rule that a discharge of a striker by his employer
for some particular, unlawful conduct in furtherance of a strike is sufficient to
bar his reinstatement as a matter of law. Fansteel teaches that there are extremes
of conduct which leave no discretion to the Board. We think that the acts here
fall on the other side of the line and that the Circuit Court of Appeals properly
so determined

36

Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice MURPHY
concur in this dissent.

1
2

Warren, Tracey, Pfuhl, Smith and Ferguson.
Crassavaz, Reeves, Lathan, Burns, Hughes, Neeley and Holt.

3

4
5

6
7

8

9
10

11

The Board found that the strikers were at no time ordered to leave the
ship. It is true that three of the officers testified that they had neither given
nor heard any of the officers give such an order. But despite a great
reluctance to overturn a finding on such a pure matter of fact, we cannot
square it with the affirmative and uncontradicted testimony of Tracey, one
of the strikers, that petitioner's agent in Houston boarded the ship at least
four times during the day, at least once in the company of the Captain,
ordered the strikers to leave the ship within the next half hour, and
announced that he was going to bring on a new crew (R. 140, 141, 161,
162).
See note 1, supra.
The Board's finding on this matter was that 'Tracey had been employed
continuously over a period of 16 months, Ferguson for a period of 1 year,
Pfuhl over a period of 8 months, Warren over a period of 6 weeks, and
Smith over a period of 18 months. Each round-trip voyage of the City of
Fort Worth is scheduled to take about 25 days.' (R. 27.)
See note 2, supra.
The Board's order permitted petitioner to deduct from the back pay due
any amounts that the discharged men might have earned during the period
in question, but required it to reimburse any public work relief agency for
sums paid to any of the men during that time. The latter phase of the order
was eliminated by the Circuit Court of Appeals on the authority of
Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 61
S.Ct. 77, 85 L.Ed. 6. The Board raises no objection to this modification of
its order.
It should be noted, however, that according to the second assistant
engineer's testimony, when he told Tracey that he intended to put the
steam on deck himself, Tracey replied, 'You had better not. You will be
sorry.' No effort was made to carry out this threat.
The Board did not consider the question of whether the strike amounted to
mutiny.
On the jurisdiction of the United States over men and vessels in foreign
waters, see United States v. Flores, 289 U.S. 137, 53 S.Ct. 580, 77 L.Ed.
1086; United States v. Roberts, C.C.S.D.N.Y. 1843, 27 Fed.Cas. page 822,
No. 16,173.
1 Stat. 112, §§ 8 and 12.

12

13
14

15

16

17

United States v. Hamilton, C.C.D.Mass.1818, 26 Fed.Cas. page 93, No.
15,291 (the report of this case is not altogether clear on whether the ship
was at anchor in Salem Bay or tied to a dock there, but the former seems
to have been the case); United States v. Gardner, C.C.D.Mass.1829, 25
Fed.Cas. page 1258, No. 15,188 (this report also fails to reveal the exact
situation of the vessel in Boston harbor at the time of the strike, but it is
possible that it was moored to the dock since Boston was its home port
and it was 'all ready for sea', and presumably the loading had just been
completed).
Stat. 775, 776.
United States v. Cassedy, C.C.D.Mass.1837, 25 Fed.Cas. page 321, No.
14,745; United States v. Lynch, C.C.S.D.N.Y.1843, 26 Fed.Cas. page
1033, No. 15,648; United States v. Roberts, C.C.S.D.N.Y.1843, 27
Fed.Cas. page 822, No. 16,173; United States v. Staly, C.C.D.R.I.1846, 27
Fed.Cas. page 1290, No. 16,374 (at anchor in the Providence River);
United States v. Nye, C.C.D.Mass.1855, 27 Fed.Cas. page 210, No.
15,906; Hamilton v. United States, 4 Cir., 268 F. 15; Rees v. United States,
4 Cir., 95 F.2d 784; United States v. Albers, 2 Cir., 115 F.2d 833.
See The Blake, 1 W.Rob 73, 166 Eng. Reprint 500; Buddington v. Smith,
13 Conn. 334, 33 Am.Dec. 407; Sapiro and Frank, Mutiny at the Dock, 25
Cal.L.Rev. 41; Rothschild, The Legal Implications of a Strike by Seamen,
45 Yale L.J. 1181; Decision, 38 Col.L.Rev. 1294. But see McLaughlin,
Note, 18 Ore.L.Rev. 128; Note, Labor Disputes in the Merchant Marine,
28 Va.L.Rev. 79.
See current 'Application for Seaman's Certificate', issued by Shipping
Section, Bureau of Marine Inspection and navigation, Department of
Commerce. And see, also, U.S.C., Title 46, § 672(g), 46 U.S.C.A. §
672(g).
Letter to the Committee dated March 27, 1939 and signed by the
Chairman of the Commission, Emory S. Land:
'Under date of February 1, 1939, you requested the views and
recommendations of the Commission with respect to H.R. 3427 and H.R.
3428.
'The proposed bills would emasculate the present laws in respect of revolt
or mutiny on shipboard. No conduct by members of the crew of a vessel of
the United States would constitute a violation of the statutes unless the
vessel were under way on the high seas and then only if actual force as
distinguished from the lesser degrees of revolt or mutiny involving use of
fraud or intimidation were used against the commanding officer.
Moreover, the proposed amendments would reduce the maximum
penalties by seventy-five per cent.

'It is the Commission's considered opinion that there is no reason which
would justify the Congress in lessening the authority of the masters on
board vessels of the American merchant marine.
'The crimes of endeavoring to incite to revolt or mutiny, or actually
accomplishing revolt or mutiny, may be committed 'on the high seas, or on
any other waters within the admiralty and maritime jurisdiction of the
United States'. It is well settled that this includes all such offenses
committed on the vessels of the United States on navigable waters,
including the ports, revers and harbors of foreign countries. (United States
v. Flores, 289 U.S. 137 (53 S.Ct. 580, 77 L.Ed. 1086).)
'Seamen who sign articles to become members of the crew of a vessel of
the United States enter into a relationship which, in the nature of things, is
different from that assumed by persons employed on land. Both as 'wards
of the admiralty' under the general maritime law and by special acts of
Congress applying only to them, seamen enjoy many benefits not
accorded to land workers. At the same time they must assume certain
correlative duties not necessary to land occupations.
'In the Economic Survey of the American Merchant Marine, the
Commission said (p. 46):
"The sea is no place for divided authority. When a man puts foot on the
deck of a ship, he becomes part of a disciplined organism subject to the
navigation laws of the United States.'
'It has been contended that the mutiny statutes do not apply unless the
vessel is in actual danger and a fortiori there can be no mutiny in a safe
harbor. This contention, not having met with success in the courts (Rees v.
United States; Hamilton v. United States) is brought before the legislative
branch of the Government in the form of the proposed amendments. The
fact that a vessel may be in a safe harbor does not, under existing law, and
it is submitted, should not, give sanction to the offenses covered by the
mutiny statutes. It is apparent to all those familiar with the sea that no
vessel is safe unless she is, among other things, manned by a competent
crew which means, in short, a crew alert to its duties and responsive at all
times to the lawful commands of the master. A crew which does not meet
this test is not competent and must, moreover, be lacking in that morale
which is necessary to the safe preservation of the ship, her passengers and
cargo. Because of the human factor involved, it is difficult to see how the
morale of a crew which feels that it should be free to disobey the lawful
commands of the master when the vessel is not 'under way on the high
seas', can be revived with automatic regularity when the ship weighs
anchor or crosses an imaginary line to the high seas.

'Certainly there need be no fear, on the part of members of an orderly and
competent crew, that they will run afoul of existing statutes governing
discipline on board vessels of the United States. As there can be no escape
from the necessities of such discipline, there should be no diminution of
the authority required to meet those necessities.
'The Commission is of the opinion that the proposed amendments, if
enacted, would be harmful to the development of the American merchant
marine and it is accordingly, opposed to the measures.
'The Commission is advised by the Acting Director of the Bureau of the
Budget that there would be no objection to the submission of this report to
your Committee.'
18
19
20
21

Memorandum to Ship Operators dated December 10, 1941, Bureau of
Marine Inspection, Department of Commerce.
N.Y. Times, Feb. 10, 1942, p. 1, col. 8.
Cf. Peninsular & Occidental S.S. Co. v. National Labor Relations Board, 5
Cir., 98 F.2d 411, 414.
We do not question the Board's finding that petitioner refused to bargain
with the N.M.U. after January 26, 1938. But the findings and the record
indicate that the union was not markedly diligent. The Board found that
one request for a conference was made by a union representative at
Houston 'shortly after the certification'. 'In late January or early February',
the union's business agent in Philadelphia made a similar request. He
renewed it 'about the middle of February'. 'During the next month' he
made two attempts to repeat his request by telephone. From that time until
August 18, a month after the strike at Houston, he made only one other
attempt, the date of which he was unable to fix.

1

'The evidence is plain that both Tracey and Ferguson were discharged
because of the leading parts they played in the strike. Chief Engineer
Norton testified that he did not recommend Ferguson's discharge merely
because he had disobeyed orders. 'I would have overlooked that had he
taken the fires until we got straightened out.' Captain Rudan testified that
he discharged both these men upon Norton's complaint that 'they had been
on which at the time of the commencement of this what I consider
disobedience, and if they had gone on watch at the time, that the rest of the
men probably would have followed. * * *
'Captain Rudan's testimony makes it abundantly clear that the motivating
factor in the respondent's decision to discharge Pfuhl was his participation
in the strike. * * *
'We entertain no doubt that an employee's intoxication provides ample
reason for his discharge. We believe, however, that the respondent did not
discharge warren for this reason, but rather that it seized upon his drinking
proclivities to rid itself of an active union officer. * * *
'On cross-examination Sherry admitted that Smith was discharged because
of his participation in the strike. * * *'

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