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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1937
- **Citation:** 301 U.S. 142

## Text

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-

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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

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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

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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. .

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