Appalachian Electric P. Co. v. National Labor R. Board

• Decision Date: 04 January 1938
• Docket Number: No. 4229.,4229.
• Citation: 93 F.2d 985
• Parties: APPALACHIAN ELECTRIC POWER CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fourth Circuit

93 F.2d 985 (1938)

APPALACHIAN ELECTRIC POWER CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 4229.

Circuit Court of Appeals, Fourth Circuit.

January 4, 1938.

George D. Gibson and T. Justin Moore, both of Richmond, Va. (Hunton, Williams, Anderson, Gay & Moore, and E. Randolph Williams, all of Richmond, Va., on the brief), for petitioner.

Robert B. Watts, Associate Gen. Counsel, National Labor Relations Board, of Washington, D. C. (Charles Fahy, Gen. Counsel, and Thomas I. Emerson and Laurence A. Knapp, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before PARKER and SOPER, Circuit Judges, and CHESNUT, District Judge.

PARKER, Circuit Judge.

This case arises upon a petition of the Appalachian Electric Power Company for review of an order of the National Labor Relations Board. The petitioner is a Virginia corporation engaged in generating, transmitting, and distributing electric power. It owns and operates nine generating plants in Virginia and West Virginia, all of which are connected with a main transmission line over which current is transmitted to consumers in various parts of the two states. The instant case arose at petitioner's steam generating plant at Glen Lyn, Va., which consumes annually 300,000 or more tons of coal shipped to it chiefly from West Virginia, and which generates current that is carried on the main transmission line to the petitioner's customers. Any interruption of the production of electric current at Glen Lyn would affect the transmission in interstate commerce of the current which it produces and of the coal used in producing it.

The case was commenced before the Board by a complaint filed in behalf of International Brotherhood of Electrical Workers, Local Union No. 906, charging that petitioner had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of section 8, subdivisions (1) and (3), of the National Labor Relations Act, 49 Stat. 449, 452, 29 U.S.C.A. § 151 et seq., and section 158 (1, 3), in that since July 5, 1935, petitioner had refused reinstatement to twelve former employees. The Board held that petitioner was guilty of unfair practices in that on June 1, 1936, and January 1, 1937, it had promoted three laborers hired since July 5, 1935, instead of offering to former employees, whose connection with petitioner had been terminated prior to that date, the positions to which the laborers were promoted. Order was entered finding that this amounted to unfair discrimination in regard to hire against the former employees on account of former union affiliation and activity and to interference with and restraint and coercion of employees in the exercise of the rights of self-organization guaranteed by section 7 of the act, 29 U.S.C.A. § 157. A cease and desist order was entered and petitioner was directed to offer employment to three of the former employees in order of seniority, with back pay from the respective dates upon which it had promoted the laborers. The pertinent facts, as to which there is little if any dispute, are as follows:

Prior to January 19, 1935, petitioner employed sixty-seven men in its plant at Glen Lyn, but on that date it closed down the plant retaining a mere skeleton force and laying off all of the other employees. Although the men at this time were engaged in the formation of a union, the Board finds that the closing down of the plant had nothing to do with this union activity, but was the result of plans which had been determined upon by petitioner some time before. With respect thereto, the Board made the following finding:

"At midnight of January 19-20, 1935, the Glen Lyn plant was shut down for an indefinite period. Although this action followed within two days of the first organization meeting of the Union, we find that it was based solely on business reasons unrelated to the union activities of the respondent's employees. The respondent wished to make certain improvements to the equipment at the plant. Contractors' proposals for these improvements had been received by the respondent in October, 1934, and the new equipment had arrived at the plant between January 1 and 15, 1935. In addition, the respondent had been engaged for some time in a controversy over freight rates with the two railroads which shipped its coal. It was believed that the railroads were maintaining excessive rates because they considered the respondent dependent upon the plant. The respondent thought that a shut-down demonstrating that the system could run without Glen Lyn would help in securing a rate reduction. Finally, because of a drop in demand on the system as a whole, combined with the fact that the generating capacity of the hydro-electric plants, which fluctuates with the flow of the streams, was usually near its high about January of each year.

"The possibility of this shut-down, for the reasons stated above, had been forecast in a talk to the employees by Mr. Markle, division manager, about January 5. Notice of the shut-down was given on January 19, at which time Lugrin, the plant manager, also listed the 43 or 44 men who were to be laid off. A skeleton crew was retained. All of the men named in the complaint, except L. W. Wall, were laid off at this time. A. P. Clark was rehired for construction work on January 22, but he was dropped on January 28, and his records indorsed, `Work completed.' L. W. Wall was retained on the skeleton crew and continued until January 31, when he was dropped ostensibly for the same reason.

"The shut-down was expected to be temporary. But, according to the respondent's officials, they intended to remove definitely from the payroll all the men laid off, although they expected to recruit the staff from among such men on reopening. At the hearing there was considerable contention as to whether the laying off of the employees terminated their employee status. It was pointed out that the term `discharge' was not used, and it appears that upon reopening those who were put back to work resumed their seniority status. On the other hand, there was no evidence that the men were told they would be called back later, as had been customary when individual employees were temporarily laid off in previous slack periods. Moreover, the records of the respondent for each employee laid off were indorsed, under the heading `Date dropped', with the notation `1/19/35', and, under the heading `Reason,' with the notation `Services no longer needed.' It appears unnecessary to determine whether the employee status of the ex-employees ended at this time. For the purposes of this decision it may be conceded that it terminated some time prior to July 5, 1935, when the ...