Memorandum for Respondent — Virginia Electric & Power Co. v. National Labor Relations Board

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Questions presented

Statute involved

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CITATIONS

Cases :

* Corning Glass Works v. National Labor Relations Board,

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Kansas City Power & Light Co. v. National Labor Relations

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National Labor Relations Board v. Continental Oil Company,

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National Labor Relations Board v. J. Greenebaum Tanning,

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National Labor Relations Board v. Southwestern Greyhound

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National Labor Relations Board v. United States Truck Co.,

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National Labor Relations Board vy. West Kentucky Coal Co.,

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Reliance Manufacturing Co. v. National Labor “Relations

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Staley, A. E., Manufactur.ng Co. v. National Labor Relations

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Wesiern Union Telegraph Co. v. National Labor Relations

Board, 113 F. (2d) 992

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Act of July 5, 1935, c. 372, 49 Stat. 449 (29 U.S. C.,

Sec. 151, et seq.) <

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nthe Supreme Court of the Wnited States

OcroBErR TERM, 1942

No. 709

Vrrainta ELECTKIC AND PowER CoMPANY,

PETITIONER

Vv.

NaTionAL LaBor RetatTions Boakp

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE FOURTH

CIRCUIT

MEMORANDUM FOR THE NATIONAL LABOR

RELATIONS BOARD

OPINIONS BELOW

The opinions of the court below (S. R. 62-78) ’

are not yet reported. The findirgs of fact, con-

* Throughout this memorandum the same method of re-

ferring to the record as used by the Company in its petition

is followed: “R” refers to the printed transcript of record

heretofore filed in this Court, when this case was previously

before the Court, October Term, 1941, Nos. 25 and 26; “S. R.”

refers to the transcript of record filed in this Court contain-

ing the principal proceedings had subsequent to-the filing

of the transcript of record in this Court in the earlier

proceeding.

Q)

2

clusions of law, and order of the Board (S. R. 13-

62) are reported in 44 N. L. R. B. 404.

JURISDICTION

The decree of the court below was entered on

December 9, 1942 (S. R. 78-79). The petition for

a writ of certiorari was filed on February 4, 1943.

The jurisdiction of this Court is invoked under

Section 240 (a) of the Judicial Code, as amended

by the Act of February 13, 1925, and under Section

10 (e) and (f) of the National Labor Relations

Act.

QUESTIONS PRESENTED

1. The Board found that the petitioner domi-

nated, interfered with and supported a labor organ-

ization of its employees, entered into an agree-

~ ment with that organization providing for a closed-

shop and check-off of dues for the purpose of

securing that organization’s financial stability,

and coerced its employees to authorize the check-

off by making it a condition to retaining their jobs,

thereby committing unfair labor practices in vio-

lation of Section 8 (1) and (2) of the Act. The

question is whether in these circumstances the

Board properly required the petitioner to reim-

burse its employees for the sums of money which

the petitioner deducted from their wages and paid

over to the dominated labor organization as their

dues.

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3

2. Whether there is substantial evidence to sup-

port the Board’s findings of fact that petitioner

dominated, interfered with and supported a labor

organization of its empleyees. This question is

presented only to the extent, if any, that may be

pertinent to examination of the first question.

STATUTE INVOLVED

ry

I o pertinent provisions of the National Labor

Relations Act are set forth in the Appendix.

STATEMENT

On February 27, 1940, the Board, after the

usual proceedings, issued an order against the

Virginia Electrie and Power Company, herein

called the Company (R. 952-980). Upon petitions

by the Company and by the Independent Organiza-

tion of Employees of the Virginia Electric and

Power Company, herein called the I. O. E., to

review and set aside the Board’s order, the court

below, in an opinion (115 F. (2d) 414) issued

on November 12, 1940, set aside and refused to

enforce the order (R. 1005-1019). Thereafter,

this Court granted writs of certiorari and in an

opinion (314 U. S. 469) issued on December 22,

1941, reversed the decision of the court below

and directed that the cause be remanded to the

Board for a redetermination of the issues in

accordance with the opinion of this Court (S. R.

1-10). Upon the remand of the case, the Board

4

reconsidered the entire case upon the original

record and on September 24, 1942, issued a new

decision (44 N. L. R. B. 404) containing its find-

ings of fact, conclusions of law, and order (S. R.

13-62).

In substance the Board found that the Company

had engaged in espionage through the use of a

full-time undercover operative furnished by the

Railway Audit and Inspection Company (S. R. 23,

36; R. 56-5Y, 198-201, 341-333, 370, 399-400) ; * in-

terrogated employees to discover their union ac-

tivities (S. R. 23-25, 36; R. 63-64, 83-84, 93, 400,

403-404, 820-821) ; discharged an employee because

he advocated affiliation with an ‘‘outside’’ union

(S. R. 49-50; R. 115, 128, 140-141, 143-144, 379,

381, 394, 397-398, 409) ; dominated and interfered

with the formation and administration of and con-

tributed support to the I. O. E. (S. R. 23-48; R.

45, 53, 155-156, 193, 385, 435, 454-455, 587, 600, 667,

676-680, 683, 727-728, 742-745, 754, 761-762, 782-

»783, 780-791, 914-915, 927-954); entered into an

agreement with the I. O. E. providing for a closed-

shop and check-off of dues (S. R. 32-33; R. 260,

345, 875-877, 826-839, 303-304, 265) ; coerced em-

ployees into authorizing the check-off as a condition

to retaining their jobs (S. R. 41, 54-55; R. 76-77,

155-156, 184, 193, 205-206, 828, 843, 855) ; and pur-

* References preceding the semicolons are to the findings

of the Board. Succeeding references are to the supporting

evidence.

suant to the provisions of the closed-shop contract

discharged two employees because they refused to

become members of the I. O. E. (S. R. 50-51; R.

172-173, 181, 267-268), thereby engaging in unfair

labor practices in violation of Sections 8 (1), (2)

and (3) of the Act (8. R. 59). The Board’s order

required the Company to cease and desist from

the unfair labor practices found and from giving

effect to its contract with the I. O. E. (8. R. 59

60). In addition the Board’s order affirmatively

directed the Company to withdraw all recognition

from and completely disestablish the I. O. E. as a

representative of its employees, to reinstate two

of the three employees found to have been discrim-

inated against,’ to reimburse its employees in the

amount of dues checked off their wages on behalf

of the I. O. E. and to post appropriate notices

(S. R. 59-62).

The Company and the I. O. E. again petitioned

the court below to review and set aside the Board’s

ordered (S. R. 62-63). The court on December 9,

1942, rendered an opinion and enicred a decree en-

forcing the Board’s order in full (S. R. 62-79).

Judge Soper dissented with respect to enforce-

ment of that portion of the Board’s order requir-

ing the Company to reimburse its employees for

dues checked off to the I. O. E. (S. R. 76-78).

*For reasons fully set forth in its decision (S. R. 57-58)

the Board found that it would not effectuate the policies

of the Act to order the reinstatement with back pay of one

of the employees found to have been illegally discriminated

against.

6

ARGUMENT

1. While, for reasons more fully set out in our

brief filed with this Court in an earlier phase of

this case (Nos. 25, 26, last Term, pp. 43-49), we

believe that the decision below is correct, we agree

with the petitioner that the decision, insofar as

it enforces the provision of the Board’s order re-

quiring the Company to reimburse its employees

for dues checked off to the I. O. E., presents an

important question which has not been but should

be settled hy this Court.‘ We, therefore, join with

petitioner in requesting that a writ of certiorari

issue to review that portion of the decision below

which enforced the provision of the Board’s order

respecting reimbursement for dues checked off.

2. Petitioner also urges review of the question

whether there is substantial evidence to support

‘Other circuit courts of appeals, under varying circun-

stances, have refused to enforce similar provisions. Western

Union Telegraph Co. y. National Labor Relations Board, 113

F. (2d) 992 (C. C. A. 2); Corning Glass Works vy. National

Labor Relations Board, 118 F. (2d) 625 (C. C. A. 2); Va-

tional Labor Relations Board v. West Kentucky Coal Co..

116 F. (2d) 816 (C. C. A.6) ; National Labor Relations Board

v. United States Truck Co., 124 F. (2d) 887 (C. C. A. 6);

National Labor Relations Goard y. J. Greenebaum Tanning

Co., 110 F. (2d) 984 (C.C. A. 7); A. EF. Staley Manufactur-

ing Co. v. National Labor Relations Board, 117 F. (2d) 868

(C. C. A. 7) ; Reliance Manufacturing Co. v. National Labor

Relations Board, 125 F. (2d) 311 (C. C. A. 7); Kansas City

Power & Light Co, v. National Labor Relations Board, 111

F, (2d) 340 (C. C. A. 8); National Labor Relations Board v.

Southwestern Greyhound Lines, Inc., 126 F. (2d) 883

(C. C. A. 8); and National Labor Relations Board vy. Conti-

nental Oil Company, 121 F. (2d) 120 (C.C. A. 10).

7

the Board’s finding of domination, interference

with, and support of the I. O. E. (Pet. 3). Peti-

tioner (Pet. 3, note 4) expressly disclaims presen-

tation of this second question for the purpose of

procuring ‘‘a reversal of the decree below to the

extent that it enforces the disestablishment re-

quirement of the Board’s order’’.

We are uncertain concerning the precise import

of the second question thus presented by peti-

tioner ; since the reimbursement order, as the Board

pointed out (S. R. 55, n. 46), depends upon the

particular circumstances of this case, in that sense

all the findings are pertinent to a resolution of the

first question and petitioner’s disclaimer becomes

meaningless. Indeed, petitioner fails to specify

the breadth of the question which it presents for

review, but rather contents itself with the state-

ment (Pet. 3) that the question of adequacy of the

evidence should be reviewed only ‘‘To the extent,

if any, that may be pertinent to a review’’ of the

dues reimbursement question.

In any event, petitioner has not pointed out any

respect in which the board’s findings are not sup-

ported by substantial evidence. As appears from

the Statement (supra, pp. 3-5), the findings

are adequately bottomed upon the evidence. We

therefore submit that the sufficiency of the evi-

dence presents no question meriting further re-

view, and that, accordingly, the writ, if granted,

be limited to the first question presented.

DR ee Ee ee oe ees SN IE IO BBG a a a

8

CONCLUSION

For the foregoing reasons we do not oppose the

granting of the petition for a writ of certiorari but

suggest that the wri’, if it be granted, should be

limited to the first question presented in the peti-

tion, whether upon the findings, the Board could

properly require the dues reimbursement.

CHARLES Fany,

Solicitor General.

Rosert B. Watts,

General Counsel,

Nattonal Labor Relations Board.

Marc, 1943.

ILS IELTS PETE CFO

APPENDIX

The relevant provisicns of the National Labor

Relations Act (Act of July 5, 1935, c. 372, 49 Stat.

449, 29 U.S. C., Sec. 151, et seq.) :

Sec. 8. It shall be an unfair labor prac-

tice for an employer—

(1) To interfere with, restrain, or coerce

employees in the exercise of the rights

guaranteed in section 7.

(2) To dominate or interfere with the

formation or administration of any labor

organization or contribute financial or other

— to it: Provided, That pw whe

es and regulations made and publi

by the Board pursuant to section 6 (a), an

employer shall not be prohibited from per-

mitting employees to confer with him dur-

ing working hours without loss of time or

pay.

(3) By discrimination in regard to hire

or tenure of employment or any term or

condition of employment to encourage or

discourage membership in any labor organ-

ization * * #

* * ee * *

Sec. 10.

(a) The Board is empowered, as herein-

after provided, to prevent an person

from engaging in any unfair labor prac-

tice (listed in section 8) affecting com-

a ¢ *

* * * * &

(ec) * * * If upon all the testimony

taken the Board shall be of the opinion that

(9)

dae ea NOES A ih SE SL

10

any person named in the complaint has

engaged in or is engaging in any such unfair

labor practice, then the Board shall state its

findings of fact and shall issue and cause to

be served on such person an order req

such person to cease and desist trot aa

unfair labor practice, and to take

affirmative action, including reinsta

of employees with or without back pay,

as will effectuate the policies of this

a "= * *

*

(e) * * * The findings of the Board

as to the facts, if supported by evidence,

shall be conclusive. *

US GOVERNMENT PRInToUG CRFICE: 1948