National Labor Relations Board v. WASHINGTON, ETC. C. CO.

• Decision Date: 06 October 1936
• Docket Number: No. 4075.,4075.
• Citation: 85 F.2d 990
• Parties: NATIONAL LABOR RELATIONS BOARD v. WASHINGTON, VIRGINIA AND MARYLAND COACH CO.
• Court: U.S. Court of Appeals — Fourth Circuit

85 F.2d 990 (1936)

NATIONAL LABOR RELATIONS BOARD v. WASHINGTON, VIRGINIA AND MARYLAND COACH CO.^*

No. 4075.

Circuit Court of Appeals, Fourth Circuit.

October 6, 1936.

Robert B. Watts, Associate Gen. Counsel for National Labor Relations Board, of Washington, D. C. (Charles Fahy, Gen. Counsel for National Labor Relations Board, Jacob Blum, Laurence A. Knapp, Philip Levy, and Melvin C. Smith, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Robert E. Lynch and William J. Hughes, Jr., both of Washington, D. C., for respondent.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

SOPER, Circuit Judge.

The National Labor Relations Board filed a petition with this court for the enforcement of an order issued by the Board to the Washington, Virginia and Maryland Coach Company directing it to cease and desist from discouraging its employees from becoming members of a local division of a labor organization known as Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, and from interfering in any other manner with its employees in their exercise of their rights to self organization, or to join labor organizations, or to bargain collectively, through representatives of their own choosing; and also affirmatively requiring the coach company to offer reinstatement to certain employees, whom it had discharged, and make them whole for any loss of pay they had suffered by reason of their discharge.

The action of the Board was based upon the provisions of the National Labor Relations Act of July 5, 1935, § 1 et seq., 49 Stat. 449, 29 U.S.C.A. 151 et seq. The statute creates a National Labor Relations Board (section 3 29 U.S.C.A. § 153) with power to carry out the declared purpose of Congress to eliminate the causes of substantial obstructions to the free flow of commerce by encouraging the practice of collective bargaining, and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment. (Section 1 29 U.S.C.A. § 151).

The definition of the terms "employer" and "employee" contained in section 2 (29 U.S.C.A. § 152) are broad enough to include persons engaged in commerce of any sort, but the term "commerce" is defined to mean trade, traffic, commerce, transportation, or communication among the several states and with foreign countries, and the term "affecting commerce" means in commerce, or burdening or obstructing commerce or the free flow of commerce, or leading to a labor dispute burdening or obstructing commerce or the free flow of commerce. Section 7 (29 U.S.C.A. § 157) contains the following declaration: "Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection."

Section 8 (29 U.S.C.A. § 158) lists the following activities, among others, as unfair labor practices for an employer: (1) To interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 7; (3) 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. Section 10 (29 U. S.C.A. § 160) entitled "Prevention of Unfair Labor Practices," (a) empowers the Board to prevent any person from engaging in any unfair labor practice affecting commerce; and (b) directs the Board, when it is charged that any person has engaged in such practice, to cause to be served upon him a complaint stating the charges and giving notice of hearing; and confers the right upon the person complained of to file an answer. Testimony may be taken, and if upon all the testimony the Board is of the opinion that the person named has been engaged in any such practice, the Board is required to state its findings of fact and to issue an order requiring the person to cease and desist from such practice and to take such affirmative action, including reinstatement of employees, with or without back pay as will effectuate the policies of the act.

The proceedings of the Board in the pending case included the filing of charges by the Labor Union, the issuance of a complaint and notice of hearing by the Board against the coach company, wherein it was alleged that the coach company was engaged in the operation of motor busses for the transportation of passengers and express in interstate commerce between the District of Columbia and points within the states of Virginia and Maryland, and that it had engaged in unfair labor practice within the meaning of subsections (1) and (3) of section 8 of the act (29 U.S.C.A. § 158 (1, 3) by discharging and refusing to reinstate 20 employees because of their membership and activity in the union. The respondent objected to the jurisdiction of the Board and moved that the complaint be dismissed on constitutional grounds, and without waiving these objections, filed an answer admitting substantially the allegations as to the nature of its business and the discharge and refusal to reinstate the employees named, but denying that it had done so because of their membership or activity in the union.

A hearing was duly had during which the respondent's objections to the jurisdiction and motion to dismiss the complaint were denied, and after the conclusion of the hearing, the Board made findings of fact substantially as follows: The respondent is a Virginia corporation operating motor busses on a regular schedule between points in the District of Columbia and state of Virginia and occasionally operating busses between the District of Columbia and race tracks in the state of Maryland. It holds a certificate of convenience and necessity, in accordance with the Motor Carrier Act of 1935 (49 U.S.C.A. § 301 et seq.). It operates 48 busses and has approximately 80 employees, 50 of whom are drivers. Twenty-seven are garage employees and 3 are office employees. The respondent discharged 18 of the 21 employees named in the complaint by reason of their union membership and activity, and therefore discriminated against these employees in violation of section 7 of the act (29 U.S.C.A. § 157). Four of these employees were bus drivers and the remainder were mechanics and service employees engaged in repairing, cleaning and servicing busses. The Board accordingly found that the respondent had engaged in unfair labor practice as charged and issued the order described.

Section 10 (e) of the act (29 U.S.C.A. § 160 (e) provides that the findings of the Board as to facts, if supported by evidence, shall be conclusive. It is settled that in reviewing the findings of such a body, the court will not consider the testimony anew and make its own findings, since the weight to be given to the evidence and the inferences to be drawn therefrom are matters for the fact-finding body, and the function of the court in review is merely to reverse and modify such findings as have no evidence to support them and are clearly improper. Federal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 73, 54 S. Ct. 315, 318, 78 L.Ed. 655; Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct. 732, 736, 79 L.Ed. 1343.

The evidence in the pending case on behalf of complainant tended to show that the discharge of the 18 men quickly followed the formation of the local union by the employees of the respondent, and in each case, the discharged man was a member of the union. A preliminary meeting of 24 employees was held at the home of one of them on February 24, 1936. Shortly afterward, officers of the company began to inquire of certain of the bus drivers as to their membership in the union, suggesting that they give further consideration to the continuance of their affiliation. Subsequently, advertisements for employees were inserted in Washington newspapers, and some applicants were hired to fill the places of the men later discharged. A circular was distributed amongst the employees suggesting that a sure way to acquire a poor standing, both in position and pay, in a business organization is to acquire good standing in a clique composed of members more concerned in serving their own ends than in serving the customers of the business. A subsequent meeting of employees was held on March 3, 1936. One of the men in attendance and subsequently discharged was informed by an officer of the company upon his return to work the same day that the officer would never recognize the union. On the three succeeding days, 21 employees, one-fourth of the total force, were discharged. All of them were members of the local union which then had 57 members amongst the respondent's employees. It was a reasonable inference from these facts that the discharge of the men was connected with their membership in the union and there was also direct evidence that the respondent's officials in certain cases expressly stated that the discharges were caused by the union activity of the men concerned.

This direct testimony was denied by the officials of the respondent, whose representatives asserted that each of the 18 men was discharged for inefficiency. It was also testified on behalf of the company that for some months prior to the discharge, the officers of the company, moved by reports of investigators and complaints of patrons in regard to the conduct of the employees and the condition of the vehicles, had been considering the dismissal of the men whom it let go in March, and instances of improper neglect and incompetency were related. According to this testimony, the difficulties increased from September and October, 1935, to February, 1936, and were the actuating causes which culminated in the conduct...