NLRB v. Guernsey-Muskingum Electric Co-op., Inc.

• Decision Date: 13 December 1960
• Docket Number: No. 14152.,14152.
• Citation: 285 F.2d 8
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GUERNSEY-MUSKINGUM ELECTRIC CO-OPERATIVE, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

285 F.2d 8 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GUERNSEY-MUSKINGUM ELECTRIC CO-OPERATIVE, INC., Respondent.

No. 14152.

United States Court of Appeals Sixth Circuit.

December 13, 1960.

Hans J. Lehmann, National Labor Relations Board, Washington, D. C., Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Melvin Pollack and Hans J. Lehmann, Attorneys, National Labor Relations Board, Washington, D. C., on brief, for petitioner.

David A. Johnston, Jr., George, Greek, King & McMahon, Columbus, Ohio, for respondent.

Before McALLISTER, Chief Judge, and CECIL and O'SULLIVAN, Circuit Judges.

CECIL, Circuit Judge.

In this case the National Labor Relations Board, hereinafter called the Board, petitions the Court for enforcement of its order of August 20, 1959, issued against respondent, Guernsey-Muskingum Electric Cooperative, Inc.

The respondent, sometimes referred to herein as the company, is and was, at all times material to this appeal, an Ohio corporation with its principal office at New Concord, Ohio. It is engaged in the production, sale and distribution of electrical energy and in the year 1958 its gross volume of business was in excess of $250,000. During the same year, its gross business was less than $3,000,000. The respondent company was admittedly engaged in commerce within the meaning of the Labor Management Relations Act, 1947. The Board found the respondent guilty of unfair labor practices within the meaning of Section 158(a) (1) and (3) of this Act, 29 U.S. C.A. § 158(a) (1, 3).

It is claimed by the respondent that the Board had no jurisdiction over it at the time the alleged unfair labor practice occurred. James Richard (Dick) Boyer was discharged by the company on June 18, 1958 and on June 23rd he filed an unfair labor practice charge against it.

In 1954 the Board observed, "It has been the consistent position of the Board that it better effectuates the purposes of the Act, and promotes the prompt handling of major cases, not to exercise its jurisdiction to the fullest extent possible under the authority delegated to it by Congress, but to limit that exercise to enterprises whose operations have, or at which labor disputes would have a pronounced impact upon the flow of interstate commerce." Greenwich Gas Co. and Fuels, Inc., 110 N.L.R.B. 564.

In keeping with this position, it announced, "We have determined that in future cases the Board will assert jurisdiction over local public utility and transit systems affecting commerce whose gross value of business is $3,000,000 or more per annum." Greenwich Gas Co. and Fuels, Inc. cited above, p. 565. It is interesting to note that the Board made an affirmative statement and did not say that it would not assert jurisdiction over systems whose gross business was less than $3,000,000.

In Sioux Valley Empire Electric Association, 122 N.L.R.B. 92, under date of November 14, 1958, the Board revised its policy and stated that it would assert jurisdiction over all public utilities which did an annual gross volume of business of at least $250,000.

As recognized by the Board, at all times pertinent to the issues in this case, it had the statutory power "* * * to prevent any person from engaging in any unfair labor practice (listed in Section 158 of this title) affecting commerce." Section 160(a) Title 29 U.S.C.A. "Whether to assert jurisdiction in a given case is a matter within the Board's discretion and the Board's decision may be over turned by a court only when that discretion has been abused." N. L. R. B. v. Pease Oil Co., 2 Cir., 279 F.2d 135, 138.

The Administrative Procedure Act provides for judicial review of agency action. Section 1009(e) Title 5 U.S.C. A., reads in part, "It shall * * * (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; * * *".

Our inquiry is directed to the question of whether the Board abused its discretion in asserting jurisdiction over the charge in this case.

Section 158, Title 29 U.S.C.A. defines unfair labor practices. A given act described in the statute as an unfair labor practice is no less a violation of the statute simply because the Board has announced that it is unable to assert jurisdiction over it at the time. A prohibitory law does not become effective only when there is danger of a violator being caught. No new unfair labor practice was created here and given retroactive effect against the respondent. If the act charged against the company was an unfair labor practice at the time of the Board's hearing it was equally so at the time it was committed. The policy of the Board not to assert jurisdiction over a given situation at a given time does not license a company that comes within the purview of the Act to commit unfair labor practices at will. The manager of the company knew of the provisions of the Act but seemingly took refuge in the then present policy of the Board not to enforce it. There is evidence that the manager said: "For you fellows' information, I will tell you, the N.L.R.B. will do nothing for you." The policy of the Board was not made for the benefit of small companies but rather for the public at large. The Board was not divested of its power to prevent unfair labor practices. Only if it creates an inequitable situation by its change of policy can its right and duty to enforce the law be curbed by the court.

The substance of the charge and the Board's finding, which we will discuss later, is that the company fired Dick Boyer because he acted in concert with other employees to voice a complaint about working conditions. If the company, through its manager in fact committed this alleged unfair labor practice, it was not innocently done. One who knowingly violates a law cannot complain of inequities.

Two cases seemingly in conflict, in which the Board applied a changed standard retroactively, are N. L. R. B. v. Guy F. Atkinson Co., 9 Cir., 195 F.2d 141, and N. L. R. B. v. Pease Oil Co., supra. In the first it was held that the Board abused its discretion and in the second it was held that it did not. These opinions are not in conflict. Each case must rest on its own facts and on this basis the conclusion in each case can be reconciled.

There is no exact measure of what constitutes abuse of discretion. It is more than the substitution of the judgment of one tribunal for that of another. Judicial discretion is governed by the situation and circumstances affecting each individual case. "Even where an appellate court has power to review the exercise of such discretion, the inquiry is confined to whether such situation and circumstances clearly show an abuse of discretion, that is, arbitrary action not justifiable in view of such situation and circumstances." Hartford-Empire Co. v. Obear-Nester Glass Co., 8 Cir., 95 F.2d 414, 417.

We find no abuse of discretion on the part of the Board in retroactively applying its changed standard to the respondent company. Accordingly, jurisdiction was properly exercised over the complaint in this case.

Having determined that the Board had jurisdiction over the company we turn to a consideration of the alleged unfair labor practice charged against the respondent. The question presented is whether Dick Boyer was discharged for cause, insubordination, or because he complained to management about working conditions.

Each summer the company conducts a program of spraying underneath its eighteen hundred miles of electric power lines in order to destroy the undergrowth. In 1958 it began this spraying on June 2nd, and as was its custom used its two three-man right-of-way crews to do the work. At this time Sam Miller, the regular foreman over these two crews was ill and had been away from work for about ten weeks. Because of the uncertainty of his return Larry Miller was employed as a foreman to conduct the spraying project. He was a school teacher and had had no previous experience in the work. Larry was the son-in-law of Frank Carruthers, the operations manager of the company, and this did not add to his popularity with the men of the crews.

There is testimony that the announcement of the employment of Larry Miller as foreman was...