Petition for Writ of Certiorari — Washington Coach Co. v. National Labor Bd.

OcT 1718

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1936

No.

Wasuinoton, Vircinta anD Marytanp Coacn Compary,

Petitioner,

Vv.

NationaL Lanse Retations Boarp. Respondent.

On Petition for Writ of Certiorari to the Circuit Court

of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

J Rosert E. Lynca,

Investment Building,

Washington, D. C.,

Attorney for Petitioner.

y Wuuum EF. Leary,

Wuuusm J. Huones, Jr.,

Reeves R. Hitox,

lavestment Building,

Washington, D. C.,

Of Counsel.

Bynon Printing Oc, Inc. Washington, D. O.

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1936

No. ——

WasHIncTON, Virginia aND Marytanyp Coach Company,

Petitioner,

Vv.

Nationa, Labor Reiations Boarp, Respondent.

On Petition for Writ of Certiorari to the Circuit Court’ *

of Appeals for the Fourth Circuit ”

PETITION FOR WRIT OF CERTIORARI

Comes now petitioner herein, the Washington, Virginia

and Maryland Coach Company, and respectfully prays for

the issuance of a writ of certiorari to review the judgment

of the Circuit Court of Appeals for the Fourth Circuit

herein.

The findings of fact andthe order of the National Labor

Relations Board (R. 5 ), are not yet reported, nor the

Opinion of the Circuit Court of Appeals (R. 589).

| Jurisdiction

The judgment, of the Circuit Court of Appeals was en-

tered October 6, 1936 (R. 598, 599). The jurisdiction of this

Court is invoked under Section 240 (a) of the Judicial

2

Code as amended by the Act of February 13, 1925, and See.

tion 10 (e) of the National Labor Relations Act.

Questions Presented

1. Whether, as applied to petitioner, a bus company ad-

mittedly operating in interstate commerce, the National

Labor Relations Act is a valid exercise of the power of

Congress to regulate commerce. |

2. Whether the provisions of the Act herein involved

violate Article 3 of the Constitution in that they improperly

delegate judicial powers to the National Labor Relations

Board.

3. Whether the provisions of the Act herein involved

violate the Fifth Amendment in that they deprive petitioner |

of liberty or property without Due Process of Law.

4. Whether the provisions of the Act herein involved

~violate the Seventh Amendment in that they improperly

deprive petitioner of the right of trial by jury.

Statute Involved .

The National Labor Relations Act is already before this

Court in toto as an Appendix to the Government’s Petition

in Nattonal Labor Relations Board v. Jones & Laughlin

Steel Corporation, No. 419 of the present term.

STATEMENT

The National Labor Relations Board filed a Petition with

the Court below for the enforcement of an order issued

against petitioner directing it to cease and desist from dis-

couraging its employees from becoming members of the

Amalgamated - Association of Street, Electric Railway and

Motor Coach Employees of America and from interfering

in any other manner with its employees in their exercise of

their rights of Self-organization or to join labor organiza-

. tions or to bargain collectively, through representatives of

their own choosing (R. 586, 548). The order also affirma-

tively required petitioner to offer reinstatement to the em-

3

ployees it had discharged, eighteen in number, with back pay

to the date of iieir alleged wrongful dischatge (R. 548).

The order resulted after a hearing before the Board in which

petitioner, appearing specially, participated only after ob-

jecting to the jurisdiction-of the Board on Constitutional .

grounds, which objections were not waived (R. 26, 592).

The petitioner admitted that it was engaged in interstate

commerce, also the discharge of the employees, but denied

that the discharge of these employees had anything to do

with union activities (R. 28-37). oP

At the hearing, the principal evidence for the Board was

that the eighteen employges in qrestion, four of them bus

drivers and the remainder mechanics and service em-

‘ployees engaged in repairing and servicing the busses,

were discharged shortly after the formation of a local union

in petitioner’s organization, which theretofore had pos-

sessed no union. Each of the discharged men was a mem-

ber of the union. There was testimony, denied by peti-

tioner’s officers, that about the time of a preliminary meet-

ing the Company began to enquire of the bus drivers as to

their membership in the union, suggesting that they give

further consideration to the matter ‘of becoming or remain-

ing members. Advertisements were placed in a newspaper

calling for new men to be hired. A circular mildly adverse

to the formation of ‘‘cliques’’ and part of a set to be dis- -

tributed each week was claimed by the Board to have been

distributed on this particular occasion with the intention |

of discouraging the formation of the union. This was de-

» nied by petitioner. There was also evidence that one of

the men discharged was told by an officer of the Company

that the officer would never recognize the union (R. 528).

The Company’s position was that almost six months

prior to the discharge of) the men it had observed a growing

slackness and inefficiency among its employees (R. 409-410,

46, 47, 56, 57, 60); that it had made preparations for their

discharge for a long period of time prior thereto; that for

several months prior to any hint of union activity it had

4

broken in new bus drivers anticipating the discharge of

some of the old ones (R. 340, 341), and that the discharge at

‘about the time of the formation of the union was the result

of the above and precipitated by certain alarming stories

that had come to the ears of the Company about threats to

allow a bus to run wild and to tamper with brakes (R: 50,

60-63, 69, 77-82). The President of the Company testified

that it was the accumulation of difficulties which finally

drove him to ‘‘clean house’’ about the time of the formation

of the union (R. 46, 48, 56, 58, 409, 410).

The Court below on the basis of this Court’s decision in

Federal Trade Commission v. Algoma Lumber Company,

291 U. S. 67, 73, held that, although the testimony of the

Company was not without weight, still bearing in mind the

circumstances of the discharge and that all the men were

union men, it could not say that there was no substantial

evidence to support the Board’s findings (R. 594).

.The order of the Board, approved by the Court below,

was not only preventive in character but required an offer

of reinstatement to the eighteen employees to their former

positions, with all rights and privileges previously enjoved

and also required the Company to make the said employees

whole for any. loss of pay suffered by reason of their dis-

charge (R. 548, 590, 598).

Basis of Decision Below

On the above state of facts the Court below held that the .

decisions of this Court in Adair v. United States, 208 U.S.

161, and Coppage v. Kansas, 236 U.S. 1, cited by petitioner

against the Constitutionality of the Act, were not irrelevant

but that any difficulties occasioned by them seemed to have

been removed by this Court’s decision in Texas’ and N.O.R.

Co. v. Ratlway Clerks, 281 U. S. 548, interpreting the Rail-

way Labor Act of 1926 (R. 594-597). No mention was made

by the Court below of petitioner’s contentions that the Rail-

way Labor Act of 1926 considered in the Texas case was an

Act voluntary and not compulsory in character; that the

eo

§

order restoring back pay in the Texas case was sustainable

only upon the theory of the voluntary feature of the Act and

upon the further fact that such restoration constituted a

reasonable purgation of the contempt resulting from the

disobedience of the Court’s order in the Texas\case. Nor

did the Court below deal with petitioner’s num¢rous other

objections, such as that the order of restoratigh with back

pay amounted to a mandatory injunction reqfiring specific

performance of a personal service contract, and the further

argument that the Act herein as applied to the circum-

stances of the particular case operated to cut down an em-

ployer’s right to hire and discharge at will by thrusting

the burden of proof upon the employer to prove to the

satisfaction of the Labor Relations Board in Washington

that a discharge of employees at or about the time of the

formation of a labor union was not because of the forma-

tion of the union. The impairment of such right was con-

tended by petitioner to be in violation of the Fifth Amend-

ment.

The Court disposed of petitioner’s contention that if the

Act was unconstitutional as applied to intrastate commerce

it wae vord as a whole, the intrastate regulation being in-

sep,*able from the interstate, by citing its decision ren-

dered the same day in Foster Brothers Manufacturing Co.,

Inc. v. National Labor Relations Board (unreported) where-

in it held that Congress never intended the Act to apply to

intrastate activities. Hence the Court below held that no

question of separability was presented (R. 597).

Reasons for Allowance of Writ

This Court already has before it the following allegedly

intra-state cases arising under the National Labor Rela-

tions Act:

National Labor Relations Board v. Jones & Laugh-

lin. Steel Company, No. 419, this term;

6

National Labor Relations Board. v. Fruehauf Trailer

Co., Nos. 420, 421, this term;

‘National Labor Relations Board v. Friedman—

Harry Marks Clothing Co., Inc., Nos. 422, 423,

‘this term.

All the above are pending in this Court on petitions for

writs of certiorari.

The Associated Press v. National Labor Relations Board,

No. 365, this term, may be referred to as a border line case

wherein there may be some question as to whether its busi-

ness is purely intra-state or involves inter-state commerce.

The present case is believed to be the first case involving

the National Labor Relations Act to reach this Court

wherein the Act has been applied to a company admittedly -

engaged in ister-state commerce and where the order re-

quires restoration to duty with back pay.

It would seem that it might be convenient to this Court

and to the Government to have presented to it for its con-

sideration in passing upon the Constitutionality of the Act

not only allegedly intra-state cases, but a case like the

present admittedly involving inter-state commerce but still

assailing the Constitutionality of the Act .on partly the

same and additional grounds. As this Court is familiar

with the various decisions cited in the Petition in Asso-

ciated Press v. National Labor Relations Board, No. 365,

as showing conflicts of decisions among the various Cir-

cuits on the main Constitutional questions involved, peti-

tioner feels it unnecessary to refer to such decisions in the

present Petition. Petitioner specifically argued below that

if the Act herein be held to be unconstitutional with respect |

to tra-state commerce it was likewise unconstitutional as

applied to the present case, the constitutional and uncon-

stitutional provisions being inseparable. The Court below

in its Opimion referred to this argnment but stated that as

it had by its decision in Foster Brothers Manufacturing Co.

v. National Labor Relations Board (C.C.A., 4th—Oct. 6,

1936, unreported), handed down at the same time, held that

7

the Act was not intended by Congress to apply to so-called

intra-state cases, no question of separability was presented.

The decision below in this aspect is impliedly in conflict

with the decisions of the various Circuit Courts of Ap-

peals in 3 p

National Labor Relations Board v. Jones ¢ Laugh-

lin Steel Company, No. 419, this term;

National Labor Relations Board v. Fruchauf Trailer

Co., Nes. 420, 421, this term;

National Labor Relations Board v. Friedman—

Harry Marks Clothing Co., Inc., Nos. 422, 423,

this term. ;

In each of the above cases the Court seems to have held,

following this Court’s decision in Carter v. Carter Coal Co.,

80 L. Ed. 749, that the Act herein was unconstitutional with

respect to so-called intra-state activities. - The present

case, therefore, presents an additional element of conflict of ©

decision. |

' The public importance of the questions involved in the

present case has already been stressed in the cases in this

Court above cited. |

CONCLUSION

Wherefore petitioner prays for the issuance of a writ of

certiorari to review the judgment below. _

Respectfully submitted,

Rosert E. Lynca,

Investment Building,

Washington, D. C.,

Attorney for Petitioner.

Wau E. Leany,

Wuumm J. Hucues, Jr.,

Reeves R. Hiton,

Investment Building,

- Washington, D. C.,

Of Counsel. .