VIRGINIA ELEC. & POW. CO. v. NAT. LABOR RELATIONS BOARD

• Decision Date: 09 December 1942
• Docket Number: No. 5013,5020.,5013
• Parties: VIRGINIA ELECTRIC & POWER CO. v. NATIONAL LABOR RELATIONS BOARD. INDEPENDENT ORGANIZATION OF EMPLOYEES OF VIRGINIA ELECTRIC & POWER CO. v. SAME.
• Court: U.S. Court of Appeals — Fourth Circuit

132 F.2d 390 (1942)

VIRGINIA ELECTRIC & POWER CO. v. NATIONAL LABOR RELATIONS BOARD.

INDEPENDENT ORGANIZATION OF EMPLOYEES OF VIRGINIA ELECTRIC & POWER CO. v. SAME.

Nos. 5013, 5020.

Circuit Court of Appeals, Fourth Circuit.

December 9, 1942.

George D. Gibson and T. Justin Moore, both of Richmond, Va. (Hunton, Williams, Anderson, Gay & Moore, of Richmond, Va., on the brief), for petitioner in No. 5013.

Wm. Earle White, of Petersburg, Va. (Paul E. Hadlick, of Washington, D. C., on the brief), for petitioner in No. 5020.

Robert B. Watts, Gen. Counsel, National Labor Relations Board of Washington, D. C. (Ernest A. Gross, Associate Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, Ruth Weyand and Owsley Vose, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

These are petitions by the Virginia Electric and Power Company, hereafter called the company, and the Independent Organization of Employees of the Virginia Electric and Power Company, hereafter called the I. O. E., to set aside an order of the National Labor Relations Board ordering the disestablishment of the I. O. E. as a company dominated organization, reinstatement with back pay of two discharged employees and reimbursement of employees for deductions from wages of amounts paid the I. O. E. under a check-off agreement. The Board asks that the order be enforced. The case was before us two years ago, when we entered an order setting aside the order of the Board theretofore entered. Virginia Electric & Power Co. v. N. L. R. B., 4 Cir., 115 F.2d 414. The Supreme Court granted certiorari and reversed our decision with direction that the case be remanded to the Board for redetermination of the issues in the light of that Court's opinion. N. L. R. B. v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348. This was done, and the case was heard by the Board on the record made at the prior hearing, without the introduction of additional testimony.

The portion of the order directing disestablishment of the I. O. E. is assailed on the ground that it is not supported by substantial evidence. This, however, was the ground of our former decision setting aside the Board's order; and the reversal of that decision by the Supreme Court precludes another holding that the identical evidence is insufficient. The case is precisely similar to that in which an appellate court reverses a non suit or judgment upon a verdict directed for defendant on the ground of the insufficiency of the evidence. In such case the lower court upon remand is not limited in the reception of evidence, nor is it precluded from rendering any judgment that may be appropriate upon the new trial granted; but, as to the effect of the evidence passed upon by the appellate court, the decision of that court is final and the lower court may not again grant a non suit or direct a verdict upon the same or substantially similar evidence. To that extent the decision of the appellate court becomes the law of the case. 3 Am.Jur. 553; 5 C.J.S., Appeal and Error, § 1964, p. 1508; Thompson v. Maxwell Land-Grant Co., 168 U.S. 451, 456, 18 S. Ct. 121, 42 L.Ed. 539; Dodd v. Union Indemnity Co., 4 Cir., 32 F.2d 512; Priester v. Southern R. Co., 4 Cir., 6 F.2d 878; Carpenter v. Durell, 6 Cir., 90 F.2d 57; Claiborne-Reno Co. v. E. I. DuPont de Nemours & Co., 8 Cir., 77 F.2d 565; Gulf, Mobile & Northern R. Co. v. Hardy, 151 Miss. 131, 117 So. 536, 61 A.L.R. 1073; Morehouse v. Everett, 141 Wash. 339, 252 P. 157, 58 A.L.R. 1482; Mahany v. Kansas City Railways Co., Mo.Sup., 254 S.W. 16, 29 A.L.R. 817; White v. Int. Text Book Co., 156 Iowa 210, 136 N.W. 121, 42 L.R.A., N.S., 346. There is nothing in Ford Motor Co. v. N. L. R. B., 305 U.S. 364, 59 S.Ct. 301, 83 L.Ed. 221, upon which the company relies, to indicate that the same rule is not to be applied to decisions on appeal to the Supreme Court from judgments of the Circuit Courts of Appeals dealing with orders of the Labor Board. That case involved no consideration of the sufficiency of the evidence by the Supreme Court, but merely the power of the Circuit Court of Appeals to remand a case to the Board for the purpose of setting aside its findings and order and making its decision and order upon reconsideration. That is a very different matter from directing, as was done here, that the case be remanded for the Board to clarify its findings so as to show whether in reaching its conclusion it had or had not acted upon an erroneous theory of law.

In our former opinion we discussed at length the very matters upon which petitioners now rely and reached the conclusion that the order of disestablishment was not supported by substantial evidence. It was our decision, and not that of the Board, which was reviewed by the Supreme Court; and proper respect for that court requires the assumption that it would not have reversed a decision based on the insufficiency of the evidence unless it had deemed that decision erroneous. Certainly the court would not have remanded the case for clarification of the findings, if the evidence before it, as we held, was insufficient to sustain any finding of domination. The case is not one involving insufficient findings where there is a remand in order that sufficient findings may be made. There was a clear finding of company domination accompanied by a comprehensive finding of evidentiary facts; but, because of expressions used by the Board, the Supreme Court was not certain that the finding of domination was not based upon certain of these evidentiary facts alone, i.e. the bulletin of April 26 and the speeches of May 24, without their being considered in connection with the other evidence. It was not suggested by anyone that the case be remanded for the taking of further evidence; and it is inconceivable that the court would have reversed our decision and directed further action by the Board unless it had been of opinion that the evidence was such that the Board could properly take action upon it and had intended so to decide.

While the court did not say in so many words that there was substantial testimony in the record which would justify Board action, it was made very clear that the Board would have been sustained if its order had been based on the totality of the evidence and there had been no question as to its being based solely on the bulletin and the speeches. In this connection the court said: "The command of section 10(e) of the Act 29 U.S.C.A. § 160(e) that `the findings of the Board as to the facts, if supported by evidence, shall be conclusive' precludes an independent consideration of the facts. Bearing this in mind we must ever guard against allowing our views to be substituted for those of the agency which Congress has created to administer the Act. But here the Board's conclusion that the Independent was a Company dominated union seems based heavily upon findings which are not free from ambiguity and doubt. We believe that the Board, and not this Court, should undertake the task of clarification." 314 U.S. 469, 62 S.Ct. 348, 86 L.Ed. 348.

After pointing out that the Board had found the bulletin and speeches had interfered with, restrained and coerced the employees, and that the company contended that this finding was repugnant to the First Amendment, the Court held that the Act did not enjoin the employer from expressing his views on labor policies or problems, but that conduct evidenced in part by speech might amount to coercion in connection with other circumstances. It then went on to say: "If the Board's order here may fairly be said to be based on the totality of the Company's activities during the period in question, we may not consider the findings of the Board as to the coercive effect of the bulletin and the speeches in isolation from the findings as respects the other conduct of the company. If the Board's ultimate conclusion is based upon a complex of activities, such as the anti-union background of the Company, the activities of Bishop, Edwards' warning to the employees that they would be discharged for `messing with the C. I. O', the discharge of Mann, the quick formation of the Independent, and the part which the management may have played in that formation, that conclusion would not be vitiated by the fact that the Board considered what the company said in conjunction with what it did."

And, as showing that the case was remanded merely for a determination by the Board as to whether or not domination was shown by the evidence without reference to the bulletin and speeches, or whether or not it was shown by the whole course of conduct evidenced in part by these utterances, and that these questions were held to be questions for the Board upon the evidence, the following portion of the opinion is pertinent:

"It is clear that the Board specifically found that those utterances were unfair labor practices, and it does not appear that the Board raised them to the stature of coercion by reliance on the surrounding circumstances. If the utterances are thus to be separated from their background, we find it difficult to sustain a finding of coercion with respect to them alone. The bulletin and the speeches set forth the right of the employees to do as they please without fear of retaliation by the Company. Perhaps the purport of these utterances may be altered by imponderable subtleties at work which it is not our function to appraise. Whether there are sufficient findings and evidence of interference, restraint, coercion, and domination without reference to the bulletin and the speeches, or whether the whole course of conduct evidenced in part by the utterances was aimed at achieving objectives forbidden by the Act, are questions for the Board to decide upon the evidence.

"Here we are not sufficiently certain from the findings that the Board based its conclusion with regard...