NATIONAL L. RELATIONS BOARD v. Appalachian E. Power Co.

Decision Date10 January 1944
Docket NumberNo. 5134.,5134.
Citation140 F.2d 217
CourtU.S. Court of Appeals — Fourth Circuit

A. Norman Somers, Atty., National Labor Relations Board, of Washington, D. C. (Robert B. Watts, General Counsel; Howard Lichtenstein, Asst. General Counsel; Jacob I. Karro and Margaret M. Farmer, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Edmund M. Preston and T. Justin Moore, both of Richmond, Va. (John L. Abbot, of Lynchburg, Va., and Hunton, Williams, Auderson, Gay & Moore, of Richmond, Va., on the brief), for respondent.

Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges.

DOBIE, Circuit Judge.

This is a petition by the National Labor Relations Board (hereinafter called the Board) for the enforcement of its order issued against the Appalachian Electric Power Company (hereinafter called the Company) following the usual proceedings under section 10 of the Wagner Act, 29 U.S.C.A. § 160. The Board found that the Company had violated section 8(1) and (5) of the Act, 29 U.S.C.A. § 158(1, 5), by interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed them in section 7 of the Act, 29 U.S.C.A. § 157, and by refusing to bargain collectively with Local Union B-112 of the International Brotherhood of Electrical Workers (hereinafter called the Union), after the Union had been certified by the Board as the proper exclusive representative of the employees within an appropriate unit. We are now called upon to determine (1) whether the Board's findings are supported by substantial evidence and (2) whether the Board's order as issued is valid.

The Company, a Virginia corporation with its principal place of business at Roanoke, Virginia, is engaged in the production, transmission and distribution of electric power in the States of Virginia and West Virginia. The Company employs 1,652 non-supervisory employees in four divisions, one of which is known as the Roanoke-Lynchburg division. Each division is in turn divided into districts. For example, the Lynchburg district of the Roanoke-Lynchburg division employs approximately 150 employees, while the Roanoke district, comprising the remaining portion of the Roanoke-Lynchburg division, employs approximately 350 employees.

At the hearing in the representation case, the Company vigorously objected to the establishment of a bargaining unit confined exclusively to the Lynchburg district. The Company felt that the Roanoke-Lynchburg divisional unit was the smallest and most desirable unit for the purposes of collective bargaining. The Board, however, found, over the objection of the Company, that the employees of the Lynchburg district; separate and apart from the employees of the Roanoke district, constituted an appropriate bargaining unit.

On February 21, 1942, pursuant to an election held by the Board in which 81 out of 88 employees in the prescribed Lynchburg unit voted, 41 employees voted in favor of the Union as their bargaining agent and 40 employees voted against such representation. The Union was thereafter duly certified by the Board on March 14, 1942.

In the latter part of 1941, Whitefield, Assistant Division Manager of the Roanoke-Lynchburg division, began a study of possible wage adjustments in the Roanoke area as a result of the rise in the cost of living and the manpower shortage. In February and April of 1942 he talked the matter over with Argabrite, Executive Vice-President of the Company. The question of a wage increase in the Lynchburg district was also discussed. Finally, on May 12, 1942, Argabrite telegraphed Whitefield his approval of raises in the Roanoke area, while at the same time Argabrite advised Whitefield that no adjustment should be made in Lynchburg regarding a wage increase on account of the pending bargaining conference with the Union, which was scheduled to be held 13 days later.

We entertain no doubt about the propriety of the Roanoke raise insofar as it affected the Roanoke employees. The Company realized that if it had also granted a voluntary raise in Lynchburg without the consent of, or consultation with, the Union, immediately prior to the appointed conference, the Board might have deemed this a violation of the Act in that it might tend to undermine the prestige and worth of the bargaining agent which the employees had selected. Great Southern Trucking Co. v. N. L. R. B., 4 Cir., 1942, 127 F.2d 180, certiorari denied 317 U.S. 652, 63 S.Ct. 48. Thus, while the Company may have been willing to grant wage increases in Lynchburg, the exact terms and extent of these increases would necessarily depend upon the outcome of the subsequent collective bargaining with the Union.

We are therefore unable to accept the finding of the Board that the Company committed an unfair labor practice in granting a wage increase to employees at Roanoke and in temporarily withholding a similar increase from employees at Lynchburg. Since the Board had certified the Union as the exclusive bargaining agent for the Lynchburg employees, the Company was no longer justified in treating alike problems concerning terms and conditions of employment in the Roanoke and the Lynchburg plants. The Lynchburg employees had chosen a representative for collective bargaining purposes but the Roanoke employees had not. In this connection, the record seems to disclose that efforts to unionize the Roanoke district had met with little, if any, success. It is, therefore, more than probable that a vote of all the employees in the Roanoke-Lynchburg division would have been adverse to the Union as the collective bargaining agency for the entire Roanoke-Lynchburg division. The Board must have known this fact.

Thus, disparate action of the Company with respect to the Roanoke employees was dictated by the Board itself when it ruled in the representation case that the Roanoke-Lynchburg division was not a proper unit for collective bargaining purposes. Accordingly, we refuse to accept the Board's finding in this respect, since it would be tantamount to vesting the representative of one group of employees with unwarranted control over employees other than those represented by it.

The Company, desiring to allay any possible unrest in Lynchburg after the granting of the Roanoke raise, advised the Lynchburg employees that their needs would be considered in the ensuing conference with the Union. Accordingly, Argabrite instructed Whitefield to tell the Lynchburg employees that "nothing was being done to hurt them in any way; that their time will come when we will negotiate with the Union on * * * the 26th."

Whitefield in turn relayed these instructions to Martin, District Superintendent, telling Martin: "to get his foremen together, any other men that he wanted to, and tell them that there was an increase at Roanoke, and they would probably hear about it, and may get it mixed up. We wanted them to know definitely the reason they were not getting one at Lynchburg at that time was because of the fact that we were about to bargain with the union and we couldn't make an increase for the Lynchburg employees pending those negotiations with the union".

Martin passed this information on to the foremen who then so advised their men.

The Board has carved excerpts from the evidence which seemingly tend to show that the Lynchburg employees were given the impression by the foremen that a raise had been denied them because the Union stood in the way. We have replaced these isolated statements in their proper place in the record and we have examined their context in the light of all the testimony. We find an absence of substantial evidence to support the position taken by the Board since the isolation of the statements relied on by the Board served to torture the true meaning.

The record is clear and convincing that the Company's instructions to its supervisory employees to be entirely neutral concerning the Union were strictly carried out. Any variation therefrom was an inconsequential circumstance which has been magnified beyond its just desserts by the Board. We find no act or statement by either the Company or its responsible officials which may be reasonably construed as having constituted an effective obstacle to the free expression of the wishes of the employees. We refuse to pervert an inadvertent statement by a supervisory employee into a malicious and designed attempt by the Company to crush and render useless the Union.

We now turn to a consideration of the second alleged unfair labor practice of the Company. This concerns one Painter, a non-supervisory employee at Lynchburg, who had "voted against the Union wholeheartedly" at the election. He later decided that it would be in the best interests of all the employees to eliminate the Union from the plant. Accordingly, acting on his own initiative, he addressed a letter to Jackson, Lynchburg district manager, which stated:

"We fellow employees hold great esteem for you as our manager and have appreciated every advantage that you have given us in the past. And through careful thinking we do not want to be governed or affiliated with any union.

"We the undersigned acknowledge with our signature."

Painter solicited signatures for this document during the week of May 18, 1942, and was successful in procuring 66 names. The Board makes much of the fact that Painter acted on Company property and time without having his wages docked. Yet these same rights and privileges were accorded the Union and our decision in N. L. R. B. v. Mathieson Alkali Works, 1940, 114 F.2d 796, adequately disposes of the Board's contention that the Company unlawfully acquiesced in the circulation of the petition. See, also, N. L. R. B. v. Sun Shipbuilding & Drydock Co., 3 Cir., 1943, 135 F.2d 15; and E. I. Du Pont De Nemours & Co. v. N. L. R. B., 4 Cir., 116 F. 2d 388.

It is true that Reynolds, a general foreman of the...

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