Nat'l Lab. Rels. Bd. v. Waterman S.S. Corp., 309 U.S. 206 (1940)

NATIONAL LABOR RELATIONS BOARD v. WATERMAN STEAMSHIP CORP.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 193. Argued January 3, 1940.—Decided February 12, 1940.

1. Certiorari granted to determine whether there was substantial evidence to sustain an order of the National Labor Relations Board which the court below declined to enforce as based on mere suspicion. Pp. 207-209.

2. The requirement of the Act that “The findings of the Board, as to the facts, if supported by evidence, shall ... be conclusive,” must be scrupulously obeyed by the courts. P. 208.

3. An employer-employee relationship within the scope of the National Labor Relations Act may subsist through mutual understanding between the owner of a vessel and members of its crew after its return from a foreign voyage and after the crew, appearing with the master before a shipping commissioner, have been paid off and “discharged” and have executed with the master a mutual release of “all claims for wages in respect of past voyage or engagement,” as provided by 46 U. S. C. §§ 564, 641, 644. P. 211.

4. A contract between an employer and a labor union for preferential treatment of the latter in filling vacancies held not to require the former to discharge employees because of their having joined another union. P. 213.

5. In forbidding an employer to terminate an employee’s tenure of employment or any term or condition of employment because of union activity or affiliation, §8(1) (3) of the Labor Act embraces all elements of the employment relationship which in fact customarily attend employment and with respect to which an employer’s discrimination may as readily be the means of interfering with employees’ right of self-organization as if these elements were precise terms of a written contract of employment. P. 218.

6. For the purpose of the Act, it is immaterial that employment is at will and terminable at any time by either party. P. 219.

7. There was substantial evidence to support the findings of the Board:

(1) That, by custom recognized by the respondent ship company, crews of ships returned from abroad, notwithstanding expiration of their shipping articles, have, unless discharged for cause, a continuing tenure or relationship with their employer entitling them to re-sign for future voyages. P. 213.

(2) That the employment or “tenure” of crews and of two licensed officers was terminated because of their affiliations with a union other than that with which the employer had made a preferential contract. P. 220.

(3) That pending an election directed by the Board to permit the ships’ crews to select their bargaining agencies, the employer had interfered with its employees’ free right to select a union of their own choosing under § 7 of the Act by refusing to grant ships’ passes to representatives of the rival union, while at the same time issuing passes to representatives of the union having the preferential contract. P: 224.

103 F. 2d 157, reversed.

Certi orar i, 308 U. S. 534, to review a decision declining to enforce an order of the National Labor Relations Board and setting it aside.

Mr. Robert B. Watts, with whom Solicitor General Jackson and Messrs. Thomas Harris, Wilber Stammler, Charles Fahy, Laurence A. Knapp, and Mortimer B. Wolf were on the brief, for petitioner.

Messrs. Gessner T. McCorvey and C. A. L. Johnstone, Jr. for respondent.

Mr . Justice Black delivered the opinion of the Court.

We do not ordinarily grant certiorari to review judgments based solely on questions of fact. In its petition, however, the Board earnestly contended that the record before the Court of Appeals had presented “clear and overwhelming proof” that the Waterman Steamship Company had been guilty of a most flagrant mass discrimination against its employees in violation of the National Labor Relations Act, and that the court had unwarrantedly interfered with the exclusive jurisdiction granted the Board by Congress. The Board’s petition also charged that the present was one of a series of decisions in which the court below had failed “to give effect to the provision of the Act that the findings of the Board as to facts, if supported by evidence, shall be conclusive.” 1

Respondent, Waterman Steamship Company, of Mobile, Alabama, is engaged in maritime transportation between this country, Europe, and the West Indies. Upon complaint made by the National Maritime Union, a labor organization affiliated with the Committee for Industrial Organization, the Board held hearings and found that respondent had, at Mobile, laid up the ships “Bienville” (27 days) and “Fairland” (7 days) for dry-docking and repairs, and had, in violation of the National Labor Relations Act:

(a) discharged and refused to reinstate, because of membership in the N. M. U., the entire unlicensed crew and the chief steward, Edmund J. Pelletier, of the Steamship “Bienville,” and all but three of the crew of the Steamship “Fairland”;

(b) discharged and refused to reinstate C. J. O’Connor, second assistant engineer of the “Azalea City” because of his activities in representing aggrieved members of the Marine Engineers Beneficial Association, a labor organization of licensed ship personnel affiliated with the C. I. 0.;

(c) and, pending an election directed by the Board to permit the ships’ crews to select their bargaining agencies,

308 U. S. 534. Cf. Federal Communications Commission v. Pottsville Broadcasting Co., ante, p. 134.

The Board’s order in question was based on the foregoing findings.

A clear understanding of the issues presented by the mass discharge of the crews of the “Bienville” and the “Fairland” necessitates initial reference to the federal laws governing engagement of seamen for foreign voyages. There is provision, 46 U. S. C. 564, that a master of any vessel bound from the United States to foreign ports (with exceptions not pertinent) “shall, before he proceeds on such voyage, make an agreement, in writing or in print, with every seaman whom he carries to sea as one of the crew . . This written agreement, commonly referred to in maritime circles as articles, must specify the nature and duration of the intended voyage or engagement; the port or country at which the voyage will terminate; the number and description of the crew and their employments; the time each seaman must be on board to begin work and the capacity in which he is to serve; wages; provisions to be furnished each seaman; regulations to which the seaman will be subjected on board such as fines, short allowance of provisions or other

4 In outline, the Board ordered the Waterman Company to cease and desist from issuing ships’ passes to the A. F. of L. on a favored basis as compared to the C. I. 0.; from discouraging membership in C. I. 0. affiliates by discriminating against its members; and from interfering with its employees’ rights of self-organization and free collective bargaining. It affirmatively ordered the Company to grant equal passes to the C. I. 0. and the A. F. of L., if granted to either; to make whole and offer full reinstatement to those employees found to have suffered discrimination; and to post appropriate notices on the Waterman vessels.

lawful punishments for misconduct; and stipulations of any advance and allotment of the seaman’s wages. And the provisions of 46 U. S. C. 567-8 impose penalties for carrying seamen in ships’ crews on foreign voyages without entering into the required articles. All seamen “discharged in the United States from merchant vessels engaged in voyages ... to any foreign port . . . shall be discharged and receive their wages in the presence of a duly authorized shipping commissioner . . .” Id. 641. The master and each seaman shall “in the presence of the shipping commissioner, . . . sign a mutual release of all claims for wages in respect of the past voyage or engagement”; the release must be recorded in a book which shall be kept by the commissioner, and such release “shall operate as a mutual discharge and settlement of all demands for wages between the parties . . ., on account of wages, in respect of the past voyage or engagement.” Id., 644. (Italics supplied.)

Respondent, the Waterman Company, has taken the position that when the crews of the “Bienville” and “Fairland” received their wages and signed off statutory articles in Mobile, alj tenure of employment and employment relationship of these men were at an end. From this premise, the Company insists that vacancies were created as the men signed off and, under an outstanding contract with the I. S. U., preference in filling these vacancies had to be given to members of the I. S. U. unless contractual obligations were to be violated.5 How-

“It shall be an unfair labor practice for an employer—To interfere with . . . [the employees’ right of self-organization] .

“By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: . .

The protection to seamen embodied in the federal statutes which have been referred to has existed in some form since the earliest days of the Nation.7 This statutory plan was never intended to forbid the parties from mutually undertaking to assure a crew the right to continue as employees and to re-sign if it desires after signing off articles at a voyage’s end. The design was to protect seamen from being carried to sea against their will; to prevent mistreatment as to wages and to assure against harsh application of the iron law of the sea during voyages.8 The Board, therefore, properly heard evi-

Court below held that O’Connor had taken a vacation and was not discharged, and was thus entitled to vacation pay and reinstatement; the Board had ordered that O’Connor be made whole “for any loss of pay” suffered as a result of the Company’s acts which the Board found had been discriminatory.

If, therefore, there was substantial support in the evidence for the findings that these crews had a continuing right to and customary tenure, term or condition of employment within the purview of the Act even though their ships were temporarily laid up, and that this relationship was terminated by the Company because of the crews’ C. I. 0. affiliation, the court below was required to enforce the Board’s order.

Evidence as to the continuing tenure, and conditions and relation of employment. On the basis of nine to ten years at sea, one witness testified that a ship’s crew is customarily kept on when she goes into dry dock and is laid up for temporary repairs; and that both the Waterman Company and the unions had observed that custom. Another, with a background of ten years experience at sea, in visiting some fifty ships in dry dock at Mobile during the preceding few months had learned of forty-nine which had not laid off their entire crews but had kept a substantial number of their crews working aboard ships; the fiftieth had laid off its entire crew after going into dry dock, but “the company kept the jobs open.” He knew

to the history of this legislation, see United States v. The Brig Grace Lathrop, 95 U. S. 527.

of one vessel that had remained “in dry dock for a period of forty-five days and maintained its crew during that period,” several which had done so recently for thirty-day periods, and many for periods “from five to ten days, fifteen days.” . He had himself been a member of a crew maintained in its entirety while his ship was in dry dock for twenty-two days.

An oiler and deck engineer, with eight years in the service, had been on a Waterman ship which, as recently as 1936, spent six days in repairs, keeping its crew on; and had “known them to stay on fifteen or twenty days and continue working that long.” Asked what obligation an employer owes a sailor after the latter returns from a foreign voyage, completes his contract under the ship’s articles, is paid off and discharged before a Shipping Commissioner, he answered “If my services are satisfactory and my work efficient, I have the right to stay on that ship, if I have not done anything to be discharged for. Why shouldn’t I make another trip? ... Q. Is it true to state that a seaman’s job is still existent, although he may not be drawing pay while the boat is tied up for repairs? A. Yes, sir. Q. There is no vacancy in his job? A. No; there is no vacancy.”

The chief steward of the “Bienville,” employed by Waterman since 1934 and a seaman since 1918, testified that crews of ships in dry dock—tied up for repairs for a few days—“have to do their work and get paid for it by the Waterman Steamship Corporation” and unless they quit or are fired “for cause” there is no vacancy. The giving of a discharge according to the ship’s articles, he understood “to be a termination of the voyage, but not a termination of the employment.”

A marine fireman, oiler and watertender, at sea since 1922, had been on a Waterman ship in for repairs ten or twelve days, the crew of which was retained only in part, but those laid off “were notified when the ship went into commission they can go out again.” He “was on one [ship] that stayed two months in dry dock . . . just part of the crew . . . [were kept on, but] the whole crew was there for their jobs when she was commissioned again.” He had never heard of a mass discharge of an entire crew such as occurred on the “Bienville” and “Fairland.” In part, the testimony of this former I. S. U. member was: “Q. Do the unions consider that there is no vacancy until a man resigns? A. Yes; they do not figure it is any vacancy until they call the [Union] Hall for another man.”

A seaman in the employ of the Waterman Company intermittently since 1924, had been on a Waterman boat which kept its whole crew during six or seven days in dry dock. It had been his experience that a crew was kept on ships in dry dock or being repaired, unless a ship was to be laid up indefinitely, i. e., for two or three months, in which event only a skeleton crew would be maintained. But, he added, the Waterman Company itself follows the custom of “calling back to the ship” men who have been laid off indefinitely and “are still around,” and men standing idly by without pay at the end of a voyage still regard themselves in the employ of the shipowner.

A witness who had worked for the Waterman Company since 1929, who had been a marine engineer for fourteen years, and at sea twenty years, testified that a crew which is laid off is customarily re-employed when a ship emerges from dry dock, unless laid off “for cause.” A Waterman ship, on which he had been at the time serving, laid up in Mobile from December, 1936, to about January 25, 1937, “and the engineers were kept on her, and to the. best of my knowledge the firemen and water-tenders and oilers were kept on there.”

The executive vice-president of the Waterman Company recalled that recently the crew of only one other vessel going in for repairs had been discharged, and that this particular crew also had been affiliated with the

N. M. U. (C. I. 0.). Of the several Waterman vessels which he mentioned as having been put up in Mobile for dry-docking or repairs during the previous year, he could note only the one that had not kept its entire crew (other than the “Bienville” and “Fairland”); the one other crew that was discharged en masse, he admitted, was the one other also affiliated with the C. I. 0.

The witness who had been captain of the “Fairland” when she went into dry dock, had served the Waterman Company continuously since 1924, with the exception of one year, in capacities ranging from ordinary seaman to ship’s master. Yet, in all his experience with the Company, he had never heard of a ship in dry dock that had laid off her entire crew. And Waterman’s port captain, a veteran of twenty-four years, had taken perhaps a half dozen of Waterman ships into dry dock, never staying more than twenty-four hours in dry dock but with a total of eight to ten days in port, and his crews were never laid off; he preferred to retain a crew for a succeeding voyage.

In the very contract which the Waterman Company made with the I. S. U. there are terms providing that “IN HOME PORT, all men may be required to work eight (8) hours daily . . . [with provision for overtime ].v And the section of the contract covering preference for I. S. U. men “shall not be construed to require the discharge of any employee who may not desire to join the [I. S. U.] . . .” That the contract contemplated an employment independent of the articles and subject to termination in a manner other than by the mere expiration of articles, is apparent from the provision that “Nothing in this agreement shall prevent . . . [the Company] from discharging any member of the crew who is not satisfactory to the Company.”

In the words of the Act, an employer cannot terminate his employees’ “tenure of employment or any term or condition of employment”9 because of union activity or affiliation. These words are not limited so as to outlaw discrimination only where there is in existence a formal contract or relation of employment between employer and employee. They embrace, as well, all elements of the employment relationship which in fact customarily attend employment and with respect to which an employer’s discrimination may as readily be the means of interfering with employees’ right of self-organization as if these elements were precise terms of a written contract of employment. The Act, as has been said, recognizes the employer’s right to terminate employment for

9§8, (1), (3).

normal reasons.10* No obstacle of legal principle barred the Board from finding that there was, even after the ships were temporarily laid up, a relationship of employment or tenure between the Waterman Company and its men. That there may be a tenure or term of employment determinable at will is a recognized principle of law.11 For the purpose of the Act, it is immaterial that employment is at will and terminable at any time by either party.12 A large part of all industrial employment is of this nature. For illustration, factory workers are customarily employed at will, without obligation of employer or employed to continue the relationship when the day’s work is done; or, if there is an agreement fixing salary or wages per unit of service, at so much per day, week or month, there may be an indefinite employment terminable by either party at the end of any unit period. But when such employees are customarily continued in their employment with recognition of their preferential claims to their jobs, it cannot be doubted that their wholesale dischargei at the end of the day or other unit period, in order to favor one union over another, would be discrimination in regard to the “tenure” or “condition” of their employment in violation of the Act. And employees under such tenure of employment as these seamen were, have a right guaranteed by the Act that they will not be dismissed because of affiliation with a particular union.

10 National Labor Relations Board n . Jones & Laughlin Corp., 301 U. S. 1, 45.

“See, e. g., Alabama Mills v. Smith, 237 Ala. 296; 186 So. 699; Peacock n . Virginia-Carolina Chemical Co., 221 Ala. 680; 130 So. 411; Great Atlantic & Pacific Tea Co. v. Summers, 25 Ala. App. 404; 148 So. 332; cert, den., 226 Ala. 635; 148 So. 333. Cf. U. S. Fidelity & Guaranty Co. v. Millonas, 206 Ala. 147; 89 So. 732 ; 29 A. L. R. 520.

12 Cf. Morgan v. Commissioner, ante, p. 78; Lyeth v. Hoey, 305 U. S. 188, 193.

Since the Board justifiably found that an employment relationship protected by the Act continued after the ‘‘Bienville” and “Fairland” were temporarily laid up, it becomes unnecessary to consider the additional finding of the Board that the “dates and duration of the particular lay-ups were arranged for the purpose of making it possible to discharge the crews because they had joined the N. M. U.”

The sole question remaining is whether the evidence supported the findings of the Board that the employment or tenure of the crews and of O’Connor and Pelletier were terminated because they had joined or engaged in the activities of the C. I. 0.

Evidence of discrimination because of C. I. 0. affiliation. About July 1, 1937, the entire crew of the “Bienville” and all but three of the “Fairland,” previously I. S. U. (A. F. of L.), joined the N. M. U. (C. I. 0.) in Tampa, Florida. Such action had been decided on in June by the crew of the “Bienville” while she was in Le Havre, France After the crew of the “Bienville” changed to the C. I. 0. at Tampa and before she reached Mobile, the A F. of L. representative at Tampa informed the A. F. of L. representative at Mobile, by telephone, that the change had taken place. And the Mobile A. F. of L. representative “at that time” notified the Waterman Company of the change. Intervening scheduled stops of the “Bienville” were cancelled by a memorandum purporting to have been written on July 1 and ordering her to Mobile to “go on inactive status for a period of about twenty days.” The port captain of the Waterman Company, who signed this memorandum, stated that it was written on July 1, “to the best of . . . [his] knowledge.” He added that it had not been written until after the “Bienville” was on her return voyage from Le Havre. That was after the ship’s crew had, in assembly, determined to turn C. I. 0. No such cancellation was directed to the

“Fairland.” The “Fairland,” he testified, was laid up because periodic repairs “were due.” On the other hand, her master had no knowledge of any contemplated lay-up until she reached Mobile, and understood, according to advice given him, that she was laid up because “she was behind schedule . . . and they put her back to the next sailing.” The Waterman port captain thought she was laid up because repairs “were due”; he had no knowledge that it was because she was behind schedule. Her master’s testimony showed, “Q. The laying up plan, then, had been something that was contemplated in Tampa?

“No, Sir.

“Q. It was something that came into existence after you sailed from Tampa and before you came to Mobile, is that right?

“A. Yes.”

The “Fairland” is equipped with radio.

The ships were in Mobile by July 6. There was testimony that a member of the crew of the “Bienville,” on the sixth, was asked by the executive vice-president of the Company why the change of unions was made and was told by that official “a man has to use his own head.” This same witness testified that several of the discharged crew were given some work ashore and that “on a Saturday afternoon we collected three days pay, they held back two days in the week, and about three o’clock in the afternoon the first assistant came around there and I was working on some safety valves on the boilers, and . . . [the assistant port engineer of Waterman Company] said, Well, I got a chance to fire you at last,’ and I said, What is that?’ And he said, Well, you can get the rest of your money when you are finished,’ and I said, What’s the matter, aren’t we going to sail the ship?’ And he said, ‘No, not unless you go back to the other place,’ and I said, What other place?’ And he said, ‘The I. S. U.’ ”

Pelletier, the steward on the “Bienville” worked for Waterman from 1934 until discharged after joining the N. M. U. (C. I. 0.). When the “Bienville” arrived at Mobile, Waterman’s port steward went to the boat, and talked with the mate, who informed him that some of the men had joined the N. M. U. According to the port steward’s testimony, he then asked the mate, “How is the Steward’s Department?” and the mate replied, “Well some of them joined the N. M. U. . . . and later on I [the port steward] found the steward in his room. ... I

asked Pelletier did he join the N. M. U. and he said ‘Yes’, and I said ‘What about the rest of your crew?’ and he said ‘Well, they all did.’ I asked him did they have any reason for it, and he said, ‘Yes, everybody did’, so I said ‘All right’ and I left the ship.” He returned to the Company’s office. Two hours later, he came back to the ship, charged Pelletier with incompetency and discharged him. Pelletier testified that the port steward, when told that the crew and Pelletier had turned N. M. U. said, “Well I have got orders to lay you all off.” Pelletier had been promoted just prior to the voyage in question. A new I. S. U. man was put on to finish up his work and remained on as watchman practically the full time the “Bienville” was laid up.

Although her captain had, prior to the coming aboard of a Company official, expressed a desire to keep the “Fairland’s” crew, as one of her crew testified, the crew was informed by this official that they could not sail, “but if you take your books and give them to . . . the I. S. U. you can keep your jobs”; another Waterman official “told me I could not sail on any Waterman steamship as long as I was an N. M. U. man.” According to this witness, he had left his clothes on the “Fairland” and slept aboard ship when she was in dry dock with the understanding he would re-sign; he was, however, ordered off the ship.

An engineer on the Waterman vessel “Azalea City,” eight years with the Company, O’Connor, a member of the M. E. B. A., (also affiliated with the C. I. 0.) testified that he acted as spokesman for other engineers on his ship in complaining about working conditions, hours of employment and rates of pay; when he discussed the complaint with the Company’s representative, during July, he was told to take a vacation and left the ship on a promise of a more desirable job; neither the vacation, the promised job, nor re-employment of any kind was ever given him. Waterman’s executive vice-president had never had an engineer act in such a representative capacity relative to asserted violations of a union contract. And the assistant port engineer stated that it was the custom to call a man of O’Connor’s rank when not on vacation; that O’Connor had been promised and then denied a vacation, but had not been called although work had been available; and, in addition that O’Connor had in conversation with him asked “Would Waterman give me employment.”

The executive vice-president of the Company would not “until the actual time came” answer the query whether he would reinstate the N. M. U. men even if there were no contract with the I. S. U. He stated that he had received a wire from the Board’s regional Director at New Orleans on July 7, recommending and insisting on reinstatement of N. M. U. men dismissed at Mobile, and did not deny that he had first told the Director that his reason for not working N. M. U. men was the existence of the I. S. U. contract. He admitted, however, that later on the same day his decision that the men were removed because the vessels were laying up was attributable to an apparent change of his own mind.

“Q. While you were a member of the N. M. U., did you ever wear your N. M. U. badge or button?

“A. Yes, sir; I used to wear it on my cap, on the dock while I was working down there.

“Q. Was there anything ever said to you at the Waterman Steamship about wearing it?

“A. Mr. Ingram told me I would have to take that Maritime Union button off if I wanted to stay around there, and I took it off, and put it in my pocket.”

From all this evidence, there can be no doubt of the substantial support for the Board’s finding that the crews, O’Connor and Pelletier all lost their jobs because of C. I. 0. affiliation and activities.

Evidence of Discrimination as to ships’ passes.—The Board found “that the respondent, by issuing passes to representatives of the I. S. U. and refusing to grant such passes to representatives of the N. M. U. for the same purpose and under the same conditions, had interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act.”13 An election to permit a choice of bargaining agency by

13 The Board ordered, as to ships’ passes, that the Company “Cease and desist:

Upon this issue of discrimination concerning passes, N. M. U.’s representative testified that the Company’s executive vice-president, about September 24 or 25, 1937, refused his request “for passes for the election of the N. L. R. B.” because of the I. S. U. contract. But no provision of the I. S. U. contract referred to ships’ passes for representatives of other unions. The respondent’s attorney took the position that N. M. U. representatives would not be permitted on board under any conditions. Testifying that I. S. U. representatives were permitted aboard the “Bienville” at all times to contact the men, Pelletier “did not recollect seeing anyone with them.” Waterman’s executive vice-president who pointed out that I. S. U. delegates were given passes on certain conditions, such as taking out insurance for delegates going aboard, did not know whether in fact there had been compliance by the I. S. U. with the conditions. He testified that he had issued instructions, July 13, to permit I. S. U. representatives aboard ship only to collect dues. But he also testified that they were still permitted to contact members. The master of the “Fairland” stated that he did not receive the instructions of July 13 until August; and that even after the instructions were put in effect, he permitted I. S. U. representatives to board ship unaccompanied ; he did not know what they said to the men, whether they brought literature aboard or whether they restricted themselves to the collection of dues. Although always present at the paying off and signing off of articles, when the I. S. U. representatives collected dues, the Company’s port captain “did not pay any strict attention whatever to what they were doing.” Asked whether he knew what these representatives did at such times, he

11 See 12 N. L. R. B. 766, 767, 769.

replied, “I did not follow them around to see what they were doing.”

Enough has been shown to establish the reasons for the Board’s decision that if the Company was to permit any opportunity for contact with the men, a fair election required that equal opportunities be given to both the C. I. 0. and the A. F. of L. 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.1516 Interference in those matters constituted error on the part of the court below.

All of this is not to say that much of what has been related was uncontradicted and undenied by evidence offered by the Company and by the testimony of its officers. We have only delineated from this record of more than five hundred pages the basis of our conclusion that all of the Board’s findings, far from resting on mere suspicion, are supported by evidence which is substantial. The Court of Appeals’ failure to enforce the Board’s order resulted from the substitution of its judgment on disputed facts for the Board’s judgment,—and power to do that has been denied the courts by Congress. Whether the court would reach the same conclusion as the Board from the conflicting evidence is immaterial and the court’s disagreement with the Board could not warrant the disregard of the statutory division of authority set up by Congress.

The cause is reversed and remanded to the Court of Appeals with directions to enforce the Board’s order in its entirety.

Mr . Justice Murphy took no part in the consideration or decision of this case.

15 American Federation of Labor v. Labor Board, 308 U. S. 401; National Labor Relations Board v. Falk Corporation, 308 U. S. 453.

CHAMBERS et al . v . FLORIDA.

CERTIORARI TO THE SUPREME COURT OF FLORIDA. No. 195. Argued January 4, 1940.—Decided February 12, 1940.

1. Convictions of murder obtained in the state courts by use of coerced confessions are void under the due process clause of the Fourteenth Amendment. P. 228. 2. This Court is not concluded by the finding of a jury that a confession by one convicted in a state court of murder was voluntary, but determines that question for itself from the evidence. P. 228. 3. Confessions of murder procured by repeated inquisitions of prisoners without friends or counsellors present, and under circumstances calculated to inspire terror, held compulsory. Pp. 238-241. 136 Fla. 568; 187 So. 156, reversed.

Certiorari , 308 U. S. 541, to review convictions of murder upon the question whether confessions used in the trial were in violation of due process of law.

Messrs. Leon A. Ransom and 5. D. McGill, with whom Mr. Thurgood Marshall was on the brief, for petitioners.

Mr. Tyrus A. Norwood, Assistant Attorney General of Florida, with whom Mr. George Couper Gibbs, Attorney General, was on the brief, for respondent.

Mr . Justice Black delivered the opinion of the Court.

The grave question presented by the petition for certiorari, granted in forma pauperis,1 is whether proceedings in which confessions were utilized, and which culminated in sentences of death upon four young negro men in the State of Florida, failed to afford the safeguard of that due process of law guaranteed by the Fourteenth Amendment.12

1308 U. S. 541.

2 Petitioners Williamson, Woodward and Davis pleaded guilty of murder and petitioner Chambers was found guilty by a jury; all

First. The State of Florida challenges our jurisdiction to look behind the judgments below claiming that the issues of fact upon which petitioners base their claim that due process was denied them have been finally determined because passed upon by a jury. However, use by a State of an improperly obtained confession may constitute a denial of due process of law as guaranteed in the Fourteenth Amendment.3 Since petitioners have seasonably asserted the right under the federal Constitution to have their guilt or innocence of a capital crime determined without reliance upon confessions obtained by means

were sentenced to death, and the Supreme Court of Florida affirmed. Ill Fla. 707, 151 So. 499; 152 So. 437. Upon the allegation that, unknown to the trial judge, the confessions on which the judgments and sentences of death were based were not voluntary and had been obtained by coercion and duress, the State Supreme Court granted leave to present a petition for writ of error coram nobis to the Broward County Circuit Court, 111 Fla. 707; 152 So. 437. The Circuit Court denied the petition without trial of the issues raised by it and the State Supreme Court reversed and ordered the issues submitted to a jury. 117 Fla. 642; 158 So. 153. Upon a verdict adverse to petitioners, the Circuit Court re-affirmed the original judgments and sentences. Again, the State Supreme Court reversed, holding that the issue of force, fear of personal violence and duress had been properly submitted to the jury, but the issue raised by the assignment of error alleging that the confessions and pleas “were not in fact freely and voluntarily made” had not been clearly submitted to the jury. 123 Fla. 734, 737; 167 So. 697, 700. A change of venue, to Palm Beach County, was granted, a jury again found against petitioners and the Broward Circuit Court once more reaffirmed the judgments and sentences of death. The Supreme Court of Florida, one judge dissenting, affirmed, 136 Fla. 568; 187 So. 156. While the petition thus seeks review of the judgments and sentences of death rendered in the Broward Circuit Court and reaffirmed in the Palm Beach Circuit Court, the evidence before us consists solely of the transcript of proceedings (on writ of error coram nobis) in Palm Beach County Court wherein the circumstances surrounding the obtaining of petitioners’ alleged confessions were passed on by a jury.

3 Brown v. Mississippi, 297 U. S. 278.

proscribed by the due process clause of the Fourteenth Amendment, we must determine independently whether petitioners’ confessions were so obtained, by review of the facts upon which that issue necessarily turns.4

Second. The record shows—

About nine o’clock on the night of Saturday, May 13, 1933, Robert Darsey, an elderly white man, was robbed and murdered in Pompano, Florida, a small town in Broward County about twelve miles from Fort Lauderdale, the County seat. The opinion of the Supreme Court of Florida affirming petitioners’ conviction for this crime stated that “It was one of those crimes that induced an enraged community ...”5 And, as the dissenting judge pointed out, “The murder and robbery of the elderly Mr. Darsey . . . was a most dastardly and atrocious crime. It naturally aroused great and well justified public indignation.” 6

Between 9:30 and 10 o’clock after the murder, petitioner Charlie Davis was arrested, and within the next twenty-four hours from twenty-five to forty negroes living in the community, including petitioners Williamson, Chambers, and Woodward, were arrested without warrants and confined in the Broward County jail, at Fort Lauderdale. On the night of the crime, attempts to trail the murderers by bloodhounds brought J. T. Williams, a convict guard, into the proceedings. From then until confessions were obtained and petitioners were sentenced, he took a prominent part. About 11 P. M. on the following Monday, May 15, the sheriff and Williams took several of the imprisoned negroes, including Williamson and Chambers, to the Dade County jail at Miami. The

4 Pierre v. Louisiana, 306 U. S. 354, 358; Norris v. Alabama, 294 U. S. 587, 590.

6136 Ha. 568, 572; 187 So. 156, 157. °Id., 574.

sheriff testified that they were taken there because he felt a possibility of mob violence and “wanted to give protection to every prisoner ... in jail.” Evidence of petitioners was that on the way to Miami a motorcycle patrolman drew up to the car in which the men were riding and the sheriff “told the cop that he had some negroes that he—[was] taking down to Miami to escape a mob.” This statement was not denied by the sheriff in his testimony and Williams did not testify at all; Williams apparently has now disappeared. Upon order of Williams, petitioner Williamson was kept in the death cell of the Dade County jail. The prisoners thus spirited to Miami were returned to the Fort Lauderdale jail the next day, Tuesday.

It is clear from the evidence of both the State and petitioners that from Sunday, May 14, to Saturday, May 20, the thirty to forty negro suspects were subjected to questioning and cross questioning (with the exception that several of the suspects were in Dade County jail over one night). From the afternoon of Saturday, May 20, until sunrise of the 21st, petitioners and possibly one or two others underwent persistent and repeated questioning. The Supreme Court of Florida said the questioning “was in progress several days and all night before the confessions were secured” and referred to the last night as an “all night vigil.” The sheriff who supervised the procedure of continued interrogation testified that he questioned the prisoners “in the day time all the week,” but did not question them during any night before the all night vigil of Saturday, May 20, because after having “questioned them all day . . . [he] was tired.” Other evidence of the State was “that the officers of Broward County were in that jail almost continually during the whole week questioning these boys, and other boys, in connection with this” case.

The process of repeated questioning took place in the jailer’s quarters on the fourth floor of the jail. During the week following their arrest and until their confessions were finally acceptable to the State’s Attorney in the early dawn of Sunday, May 21st, petitioners and their fellow prisoners were led one at a time from their cells to the questioning room, quizzed, and returned to their cells to await another turn. So far as appears, the prisoners at no time during the week were permitted to see or confer with counsel or a single friend or relative. When carried singly from his cell and subjected to questioning, each found himself, a single prisoner, surrounded in a fourth floor jail room by four to ten men, the county sheriff, his deputies, a convict guard, and other white officers and citizens of the community.

The testimony is in conflict as to whether all four petitioners were continually threatened and physically mistreated until they finally, in hopeless desperation and fear of their lives, agreed to confess on Sunday morning just after daylight. Be that as it may, it is certain that by Saturday, May 20th, five days of continued questioning had elicited no confession. Admittedly, a concentration of effort—directed against a small number of prisoners including petitioners—on the part of the questioners, principally the sheriff and Williams, the convict guard, began about 3: 30 that Saturday afternoon. From that hour on, with only short intervals for food and rest for the questioners—“They all stayed up all night.” “They bring one of them at a time backwards and forwards . . . until they confessed.” And Williams was present and participating that night, during the whole of which the jail cook served coffee and sandwiches to the men who “grilled” the prisoners.

TA constable of the community, testifying about this particular incident, said in part:

“Q. Were you there when Mr. Maire [State’s Attorney] talked to Walter Woodward the first time he came over there?

“A. Yes, sir.

“Q. Take his confession down in writing?

“A. Yes. Ci

“Q. If he made a confession why did you all keep on questioning him about it. As a matter of fact, what he said that time wasn’t what you wanted him to say, was it ?

“A. It wasn’t what he said the last time.

“Q. It wasn’t what you wanted him to say, was it?

“A. We didn’t think it was all correct. it

“ Q. What part of it did you think wasn’t correct. Would you say what he told you there at that time was freely and voluntarily made?

“A. Yes, sir. it

“Q. What he freely and voluntarily told you in the way of a confession at that time, it wasn’t what you wanted?

“A. It didn’t make up like it should.

“Q. What matter didn’t make up?

“A. There was some things he told us that couldn’t possible be true. it

“A. No, it wasn’t false, part of it was true and part of it wasn’t; Mr. Maire [the State’s Attorney] said there wasn’t enough. It wasn’t clear enough.

“Q. ... Was that voluntarily made at that time? “A. Yes, sir. “Q. It was voluntarily made that time? “A. Yes, sir.

when you get something worth while call me,’ or words to that effect?

“A. Something similar to that.

“Q. That did happen that night?

“A. Yes, sir.

“Q. That was in the presence of Walter Woodward?

“A. Yes, sir.”

And petitioner Woodward testified on this subject as follows:

“A. . . . I was taken out several times on the night of the 20th ... So I still denied it. . . .

“A. He said I had told lies and kept him sitting up all the week and he was tired and if I didn’t come across I would never see the sun rise.

“A. . .. then I was taken back to the private cell. . . . and shortly after that they come back, shortly after that, twenty or twenty-five minutes, and bring me out. ... I [told Williams] if he would send for the State Attorney he could take down what I said, I said send for him and I will tell him what I know. So he sent for Mr. Maire some time during Saturday night, must have been around one or two o’clock in the night, it was after midnight, and so he sent for Mr. Maire, I didn’t know Mr. Maire then, but I know him now by his face.

“A. Well he come in and said ‘this boy got something to tell me’ and Captain Williams says .‘yes, he is ready to tell you.’ . . .

“. . . Mr. Maire had a pen and a book to take down what I told him, which he said had to be on the typewriter, but I didn’t see any typewriter, I saw him with a pen and book, so whether it was short-

“Q. You didn’t consider it sufficient?

“A. Mr. Maire.

“Q. Mr. Maire told you that it wasn’t sufficient, so you kept on questioning him until the time you got him to make a free and voluntary confession of other matters that he hadn’t included in the first?

“A. No, sir, we questioned him there and we caught him in lies.

“Q. Caught all of them telling lies?

“A. Caught every one of them lying to us that night, yes, sir.

“Q. Did you tell them they were lying?

“A. Yes, sir.

“Q. Just how would you tell them that?

“A. Just like I am talking to you.

hand or regular writing I don’t know, but he took it down with pen. After I told him my story he said it was no good, and he tore it up. ...

a “Q. What was it Mr. Maire said?

“A. He told them it wasn’t no good, when they got something out of me he would be back. It was late he had to go back and go to bed.

ff “A. ... I wasn’t in the cell long before they come back. . . . ff “Q. How long was that from the time you was brought into that room until Mr. Maire left there?

“A. Something like two or three hours, I guess, because it was around sunrise when I went into the room.

“Q. Had you slept any that night, Walter?

“A. No, sir. I was walked all night, not continually, but I didn’t have no time to sleep except in short spaces of the night.

ff “Q. When Mr. Maire got there it was after daylight? “A. Yes, sir. a “Q. Why did you say to them that morning anything after you were brought into the room?

“A. Because I was scared, . . .”

“Q. You said ‘Jack, you told me a lie’?

“A. Yes, sir.”

After one week’s constant denial of all guilt, petitioners “broke.”

Just before sunrise, the state officials got something “worthwhile” from petitioners which the State’s Attorney would “want”; again he was called; he came; in the presence of those who had carried on and witnessed the all-night questioning, he caused his questions and petitioners’ answers to be stenographically reported. These are the confessions utilized by the State to obtain the judgments upon which petitioners were sentenced to death. No formal charges had been brought before the confessions. Two days thereafter, petitioners were indicted, were arraigned and Williamson and Woodward pleaded guilty; Chambers and Davis pleaded not guilty. Later the sheriff, accompanied by Williams, informed an attorney who presumably had been appointed to defend Davis that Davis wanted his plea of not guilty withdrawn. This was done, and Davis then pleaded guilty. When Chambers was tried, his conviction rested upon his confession and testimony of the other three confessors. The convict guard and the sheriff “were in the Court room sitting down in a seat.” And from arrest until sentenced to death, petitioners were never—either in jail or in court—wholly removed from the constant observation, influence, custody and control of those whose persistent pressure brought about the sunrise confessions.

Third. The scope and operation of the Fourteenth Amendment have been fruitful sources of controversy in our constitutional history.8 However, in view of its his-

134 U. S. 418, dissent 461-466. And there has been a current of opinion—which this court has declined to adopt in many previous cases—that the Fourteenth Amendment was intended to make secure against state invasion all the rights, privileges and immunities protected from federal violation by the Bill of Rights (Amendments I to VIII). See, e. g., Twining v. New Jersey, 211 U. S. 78, 98-9, Mr. Justice Harlan, dissenting, 114; Maxwell v. Dow, 176 U. S. 581, dissent 606; O’Neil n . Vermont, 144 U. S. 323, dissent 361; Palko v. Connecticut, 302 U. S. 319, 325, 326; Hague v. C. I. 0., 307 U. S. 496.

9 Cf. Weems v. United States, 217 U. S. 349, 372, 373, and dissent setting out (p. 396) argument of Patrick Henry, 3 Elliot, Debates, 447.

lie tribunal free of prejudice, passion, excitement, and tyrannical power. Thus, as assurance against ancient evils, our country, in order to preserve “the blessings of liberty,” wrote into its basic law the requirement, among others, that the forfeiture of the lives, liberties or property of people accused of crime can only follow if procedural safeguards of due process have been obeyed.10 The determination to preserve an accused’s right to procedural due process sprang in large part from knowledge of the historical truth that the rights and liberties of people accused of crime could not be safely entrusted to secret inquisitorial processes. The testimony of centuries, in governments of varying kinds over populations of different races and beliefs, stood as proof that physical and mental torture and coercion had brought about the tragically unjust sacrifices of some who were the noblest and most useful of their generations. The rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross questioning, and other ingenious forms of entrapment of the helpless or unpopular had left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake and

10 As adopted, the Constitution provided, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” (Art. I, § 9.) “No Bill of Attainder or ex post facto Law shall be passed” (Id.), “No State shall . .. pass any Bill of Attainder, or ex post facto Law. . ..” (Id., § 10), and “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court” (Art. Ill, § 3). The Bill of Rights (Amend. I to VIII). Cf. Magna Carta, 1297 (25 Edw. 1); The Petition of Right, 1627 (3 Car. 1, c. 1.); The Habeas Corpus Act, 1640 (16 Car. 1, c. 10.), An Act for [the Regulating] the Privie Councell and for taking away the Court commonly called the Star Chamber; Stat. (1661) 13 Car. 2, Stat. 1, C. 1 (Treason); The Bill of Rights (1688) (1 Will. & Mar. sess. 2, c. 2.); all collected in “Halsbury’s Stat, of Eng.” (1929) Vol. 3.

the hangman’s noose. And they who have suffered most from secret and dictatorial proceedings have almost always been the poor, the ignorant, the numerically weak, the friendless, and the powerless.11

This requirement—of conforming to fundamental standards of procedure in criminal trials—was made operative against the States by the Fourteenth Amendment. Where one of several accused had limped into the trial court as a result of admitted physical mistreatment inflicted to obtain confessions upon which a jury had returned a verdict of guilty of murder, this Court recently declared, Brown v. Mississippi, that “It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.” 1112

Here, the record develops a sharp conflict upon the issue of physical violence and mistreatment, but shows, without conflict, the dragnet methods of arrest on suspicion without warrant, and the protracted questioning and cross questioning of these ignorant young colored tenant farmers by state officers and other white citizens, in a fourth floor jail room, where as prisoners they were without friends, advisers or counselors, and under circumstances calculated to break the strongest nerves and

11 “In all third degree cases, it is remarkable to note that the confessions were taken from ‘men of humble station in life and of a comparatively low degree of intelligence, and most of them apparently too poor to employ counsel and too friendless to have any one advise them of their rights.’” Filamor, “Third Degree Confession,” 13 Bombay L. J., 339, 346. “That the third degree is especially used against the poor and uninfluential is asserted by several writers, and confirmed by official informants and judicial decisions.” IV National Commission On Law Observance and Enforcement, Reports, (1931) Ch. 3, p. 159. Cf. Morrison v. California, 291 U. S. 82, 95.

12 297 U. S. 278, 286.

the stoutest resistance. Just as our decision in Brown v. Mississippi was based upon the fact that the confessions were the result of compulsion, so in the present case, the admitted practices were such as to justify the statement that “The undisputed facts showed that compulsion was applied.” 13

For five days petitioners were subjected to interrogations culminating in Saturday’s (May 20th) all night examination. Over a period of five days they steadily refused to confess and disclaimed any guilt. The very circumstances surrounding their confinement and their questioning without any formal charges having been brought, were such as to fill petitioners with terror and frightful misgivings.14 Some were practical strangers in

13 See Ziang Sung Wan v. United States, 266 U. S. 1, 16. The dissenting Judge below noted, 136 Fla. 568, 576; 187 So. 156, 159, that, in a prior appeal of this same case, the Supreme Court of Florida had said: “Even if the jury totally disbelieved the testimony of the petitioners, the testimony of Sheriff Walter Clark, and one or two of the other witnesses introduced by the State, was sufficient to show that these confessions were only made after such constantly repeated and persistent questioning and cross-questioning on the part of the officers and one J. T. Williams, a convict guard, at frequent intervals while they were in jail, over a period of about a week, and culminating in an all-night questioning of the petitioners separately in succession, throughout practically all of Saturday night, until confessions had been obtained from all of them, when they were all brought into a room in the jailer’s quarters at 6:30 on Sunday morning and made their confessions before the state attorney, the officers, said J. T. Williams, and several disinterested outsiders, the confessions, in the form of questions and answers, being taken down by the court reporter, and then typewritten.

“Under the principles laid down in Nickels v. State, 90 Fla. 659, 106 So. 479; Davis v. State, 90 Fla. 317, 105 So. 843; Deiterle v. State, 98 Fla. 739, 124 So. 47; Mathieu v. State, 101 Fla. 94, 133 So. 550, these confessions were not legally obtained.” 123 Fla. 734, 741; 167 So. 697, 700.

We are not impressed by the argument that law enforcement methods such as those under review are necessary to uphold our laws.15 The Constitution proscribes

taken, on the day after the discovery of the homicide while he was at his usual work, and placed in jail. He had heard them whipping Swain in the jail; he was taken from the jail to the penitentiary at Little Rock and turned over to the warden, Captain Todhunter, who was requested by the sheriff to question him. This Todhunter proceeded to do, day after day, an hour at a time. There Bell was, an ignorant country boy surrounded by all of those things that strike terror to the negro heart; . . See Miinsterberg, On the Witness Stand, (1927) 137 et seq.

accused or suspect is not tolerated. See, Report of Comm, on Lawless Enforcement of the Law, supra, 588; 43 H. L. R., supra, 618. It has even been suggested that the use of the “third degree” has lowered the esteem in which administration of justice is held by the public and has engendered an attitude of hostility to and unwillingness to cooperate with the police on the part of many people. See, IV National Commission, etc., supra, p. 190. And, after scholarly investigation, the conclusion has been reached “that such methods, aside from their brutality, tend in the long run to defeat their own purpose; they encourage inefficiency on the part of the police.” Glueck, Crime and Justice, (1936) 76. See IV National Commission, etc., supra, 5; cf. 4 Wigmore, Evidence, (2d ed.) § 2251. The requirement that an accused be brought promptly before a magistrate has been sought by some as a solution to the problem of fostering law enforcement without sacrificing the liberties and procedural rights of the individual. 2 Wig., supra, § 851, IV National Commission, etc., supra, 5.

215234 °—40-----16

Statement of the Case. 309 U. S.

The Supreme Court of Florida was in error and its judgment is

Mr . Justic e Murphy took no part in the consideration or decision of this case.