Continental Can Company, Inc. v. United States of America and Federal Maritime Board

J. JOSEPH SMITH, District Judge

(concurring).

I concur in the result. I do not agree that we should upset the Board’s finding as to classification. The Board’s decision on proper classification was within its power on sufficient evidence in the record, and we should so hold. However, the finding of willfulness, based on failure to inquire of the interested Conference as to which of two arguable classifications (see opinions of trial examiner and dissenting Board Member) should apply is without support in the record and this by itself falls short of willfulness as the term should be construed in a penal statute. I therefore concur in the order setting aside the order of the Board and discontinuing the present proceeding.