Virginia Electric & Power Co. v. National Labor R. Board

• Citation: 115 F.2d 414
• Decision Date: 12 November 1940
• Docket Number: No. 4616,4652.,4616
• Parties: VIRGINIA ELECTRIC & POWER CO. v. NATIONAL LABOR RELATIONS BOARD. INDEPENDENT ORGANIZATION OF EMPLOYEES OF VIRGINIA ELECTRIC & POWER CO v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

115 F.2d 414 (1940)

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

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

Nos. 4616, 4652.

Circuit Court of Appeals, Fourth Circuit.

November 12, 1940.

George D. Gibson and T. Justin Moore, both of Richmond, Va. (Stephen H. Simes and Hunton, Williams, Anderson, Gay & Moore, all of Richmond, Va., on the brief), for petitioner in No. 4616.

William Earle White, of Petersburg, Va. (Paul E. Hadlick, of Washington, D. C., on the brief), for petitioner in No. 4652.

Lester M. Levin, Regional Atty., National Labor Relations Board, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, Mortimer B. Wolf 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 to review and set aside an order of the National Labor Relations Board, which found that the Virginia Electric and Power Company had interfered with, restrained and coerced its employees in the exercise of rights guaranteed by the National Labor Relations Act, 29 U. S.C.A. § 151 et seq., had dominated and interfered with the formation and administration of an employees' association, and had discriminated with respect to hire and tenure of employment in the discharge of certain employees. The order, in addition to the usual cease and desist provisions, directed the disestablishment of the employees' association as a bargaining agency and the reinstatement with back pay of four employees who had been discharged. Petitions to review and set aside the order have been filed both by the company and by the association of employees. The Board has filed answer asking enforcement of the order. Four questions are presented for our consideration: (1) Whether the Board had jurisdiction with respect to the gas and transportation departments of the company's business; (2) whether there was substantial evidence that the company dominated or interfered with the formation or administration of the employees' association; (3) whether the findings as to discriminatory discharge were sustained by substantial evidence; and (4) whether there was evidence of other unfair labor practices which would sustain the cease and desist provision of the order.

1. The Question of Jurisdiction.

The company is a public utility engaged in the manufacture, distribution and sale of electrical energy and artificial gas, and in the operation of street railways and local and interurban bus lines. It admits that with respect to its electrical business it is engaged in interstate commerce and is subject to the act, an admission which accords with the decision of the Supreme Court in Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126, and the decision of this Court in Appalachian Electric Power Co. v. N. L. R. B., 4 Cir., 93 F.2d 985, 988. The company contends, however, that its gas and transportation businesses are local in character and are without the Board's jurisdiction. A sufficient answer to this position is the unitary character of the Company's business, which has resulted, notwithstanding the division into these departments, in the organization of a single association of its employees. It is clear that wage controversies or unfair labor practices in any department of such a business will have repercussions in other departments; and strife affecting the interstate commerce in which the company is engaged will be avoided only if the rights of all employees are properly safeguarded. Virginian Railway Co. v. System Federation No. 40, 4 Cir., 84 F.2d 641, affirmed, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Consolidated Edison Co. v. N. L. R. B., supra; National Labor Relations Board v. Planters' Mfg. Co., 4 Cir., 105 F.2d 750. Furthermore, it appears that in the operation of its transportation system the company during 1937 used 31,253,514 kilowatt hours of the electrical power generated in its electrical department and more than two and a half million gallons of gasoline brought from without the state. For operating its gas business that year, it received in interstate commerce more than three million gallons of crude oil, 10,821 tons of coal and 3,800 tons of coke. As we said in the case of the Newport News Shipbuilding & Dry Dock Co. v. N. L. R. B., 101 F.2d 841, 843: "* * * a sufficient ground for regulation appears in the effect of the purchases on interstate commerce, which is within the power and duty of Congress to regulate and protect. If practices in the business will affect such commerce, Congress, under the clearest principles, has the power to regulate them. We have so held with respect to manufacturing products grown within a state for transportation in interstate commerce. Mooresville Cotton Mills v. National Labor Relations Board, 4 Cir., 94 F.2d 61. The Supreme Court so held with respect to the canning, packing and shipping of agricultural products grown within a state but shipped in interstate commerce, Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954. There can be no difference in principle between the case in which manufacture precedes and that in which it follows interstate commerce. If the flow of commerce is obstructed by labor disputes, it can make no difference from which direction the obstruction is applied."

We accordingly hold that the jurisdiction of the Board extended to the gas and transportation business of the company, as well as to its electrical business.

2. The Employees' Association.

The principal question in the case is whether there is substantial evidence to support the finding that the company dominated and interfered with the formation and administration of the employees' association. We do not think that there is. While there is evidence that, prior to the passage of the National Labor Relations Act, the attitude of the company had been opposed to organization of its employees by an outside union, and that its superintendent of transportation in Norfolk had, in 1936, been guilty of the unfair labor practice found by the Board, there is nothing to show that the employees' association does not represent the free choice of the employees, that the company at any time dominated or in any way interfered with the employees in setting it up or that the company exercises over it any control or domination whatsoever. There is evidence, it is true, that a bulletin of the company and an address by its president led to organizational activities on the part of the employees; but neither of these furnishes any basis for a finding of company domination; and the evidence leaves no doubt that the association was formed by the free and untrammeled action of the employees and constitutes a bona fide bargaining agency for them, free of company domination or interference.

In the service of the company there are 2,800 to 3,000 non-supervisory employees. From 1922 to 1937 there was no organization among them and only a scattered few belonged to labor unions. Prior to 1937, the attitude of the company had not been favorable to labor organization; and in 1933 its president had made an address to the employees calling their attention to provisions of the National Industrial Recovery Act 48 Stat. 195, and stating that it was the belief of the company that organization of employees for any purpose was "entirely unnecessary". Early in 1937, however, there was much industrial unrest throughout the country, and the decision of the Supreme Court, upholding the validity of the National Labor Relations Act, led to much discussion among laboring men and in the public press as to the rights and duties of employers and employees under the Act. In this situation, the company, on April 26, 1937, posted on its bulletin boards a statement by its president addressed to its employees as to its attitude on labor problems.^* That statement, after calling attention to the recent decision of the Supreme Court, the industrial unrest and the activities of labor organizations, and after adverting to the satisfactory relationship which had theretofore existed between the company and its employees without labor organizations, went on to say that the company recognized the right of every employee to join any union that he might wish to join, and that such membership would not affect his position with the company. It added, however, that it should be made equally clear that it was not at all necessary for any employee to join any labor organization, despite anything that he might be told to the contrary. It concluded by stating that, if the employees, individually or as a group, had any matter which they wished to discuss with the company, the officers would gladly discuss it with them.

Following the posting of this bulletin, requests for increase of wages and change of working conditions were received from employees in a number of departments, and in at least one department there was attempt at organization with request for a wage increase of 50%. A meeting of the supervisory officials of the company was held to consider this situation; and it was decided that the president should make an address to the employees pointing out their rights under the National Labor Relations Act and the desirability of their choosing agents for the purpose of collective bargaining. The employees were accordingly asked to select from among themselves persons to hear the message of the president, and groups assembled in Richmond and Norfolk on May 24th for that purpose. The address of the president was written out and submitted to legal counsel in advance of its delivery. It was delivered by the president in person to the Richmond meeting of employees, and was read by one of the vice-presidents to the Norfolk meeting. Nothing...