*1 faulty signals always look- the dis- keeping a be blown before “Calateo” had been to up as out, made tance the vessels is reduced to or her tow was so between “Dauntless,” Henry little very less than Du Bois to half a mile. In shut off Rederi, supra, 116 only was the “Calatco’s” Ivarans it. Not Sons Co. A/S unobstructed, wholly clearly put present in- starboard we our vision to terpretation upon little across fore- but she was headed a ” it. for the While when she projected going not “Dauntless’ course reasons we think the “Calateo” fault, out, made her indeed the “Dauntless” the fault of the “Dauntless” that, It probably a trifle nearer the shore. in accord- glaring so and inexcusable speculation suppose principles, would be the merest ance we with well settled should that she her in season. any disposed did not see not in- have been event quire curiously too into the faults of charged against fault “Calateo.” In is that Rule III the “Calateo” Decree affirmed. spectors’ required her to blow a Rules than signal when the were more vessels assume apart, we will half mile Rule III that she did not do. Whether statute, is in we conflict with Henry deliberately never considered. In Rederi, Du Bois Ivarans Sons Co. v. A/S 492, 493, 494, say didwe “upheld”, it had been several times support, ex but the cited decisions NATIONAL BOARD LABOR RELATIONS cept Maryland Judge Soper’s in State v. APPALACHIAN ELECTRIC Use of Dawson v. Standard Oil POWER CO. Jersey, con of New did not No. 5134. possible conflict rule with sider the it; the statute. Nor did we consider Appeals, Circuit. Court of Fourth appear it does that we need have done not Jan. meeting so. The not head and head or starboard, nearly, but and we starboard to are not certain that were not vessels meeting “in manner as involve such a were, they risk collision.” the stat If impose liability enough ute alone was upon regard the “Ariosa.” We it as still open whether, question when vessels are meeting within the definition of the pass statute but courses as to so up away distance half a mile each other, they give passing signals. bar, need not decide it in the case at be misappre quite cause the “Dauntless” has rule, meaning assuming hended validity. appears suppose She requires give signal it when vessels to apart. are more than half a mile It that; imposes merely not mean does duty giving signal whenever passing pass within the distance of vessels projected half a mile: i.e. when apart. courses are that distance phrase, “at a distance within mile half a other,” adjectival each to the words meeting”; passing “when phrase “at all times.” The Rule does not profess lay down what is the minimum apart distance at which the vessels must signal; and indeed it would be most un-

reasonable so to require to construe *2 Edmund M. Preston and T. Justin

Moore, Richmond, both (John of L. Va. Abbot, Hunton, of Lynchburg, Va., and Williams, Anderson, Moore, Gay & of Richmond, Va., respond- brief), on the ent. SOPER, DOBIE, Before and NORTH- COTT, Judges. Circuit DOBIE, Judge. petition by This is Labor the National Relations (hereinafter called Board) order for the enforcement of its against Appalachian issued Electric Power (hereinafter called the Company) following proceedings usual Act, under section 10 Wagner of U.S.C.A. 160. The Board found that § 8(1) had violated section (5) Act, of 158(1, 5), U.S.C.A. § with,

interfering restraining, coercing rights in the exercise of their guaranteed Act, 7 of the section them by refusing 29 U.S.C.A. § bargain collectively B- with Local Union 112 of the Brotherhood International (hereinafter Electrical Workers called Union), after had certified the Union proper repre- the Board as the exclusive ap- sentative of the within an propriate unit. We now are called (1) to determine find- whether ings supported by are substantial evidence (2) whether the Board’s as is- order sued is valid. Company, corporation Virginia The place principal of business at with its pro- engaged in the Roanoke, Virginia, duction, transmission and distribution power Virginia electric the States Company employs Virginia. West 1,652 non-supervisory employees in four divisions, known one of which is as Roanoke-Lynchburg Each divi- division. sion is in turn divided into districts. For example, Lynchburg district of employs ap- Roanoke-Lynchburg division employees, proximately while district, comprising remaining Roanoke division, portion Roanoke-Lynchburg employs approximately employees. Somers, Atty., hearing representation National in the A. Norman Labor At Washington, Company vigorously objected Relations D. C. Watts, Counsel; General How- unit con- (Robert B. establishment of Lichtenstein, Counsel; exclusively Asst. Lynchburg General to the ard fined dis- Margaret Farmer, Karro and felt I. M. Roanoke- trict. Jacob Attys., Labor unit Lynchburg National Relations all divisional was the smallest C., purposes Washington, brief), D. unit for the most desirable petitioner. bargaining. collective how- ever, temporarily withholding Com- found, objection Roanoke and over the Lynch- Lynchburg similar pany, from that the increase burg. apart separate the Board had certified district, Since district, ployees bargaining agent constituted Union exclusive Roanoke *3 Company appropriate employees, the bargaining Lynchburg unit. longer justified treating alike no in 21, 1942, pursuant February On problems concerning terms and conditions 81 out Board in which held employment of in the and the Roanoke Lynch- employees prescribed of 88 in the plants. Lynchburg ployees Lynchburg in voted, employees voted burg unit had chosen a bargaining their favor of Union as purposes bargaining collective agent employees against such voted employees Roanoke had In con- not. this representation. thereafter The Union was nection, the record seems to disclose that 14, duly March Board on certified efforts to unionize had the Roanoke district little, any, is, met with if success. It there- Whitefield, 1941, In the latter fore, probable more than that a vote of Roa- Manager of the Assistant Division employees Roanoke-Lynch- all in the study noke-Lynchburg division, began burg would have been adverse division possible wage adjustments in the Roanoke bargaining the collective Union as in cost area as a result of rise agency Roanoke-Lynchburg for the entire In manpower shortage. living and the known division. The Board have February April he talked the of 1942 this fact. Argabrite, Executive matter with over ques- Company. Thus, disparate Company Vice-President of the action of the Lynchburg wage respect employees in the tion of a increase with Roanoke to the Finally, discussed. on ruled district was also dictated the Board itself when it 12, 1942, May Argabrite telegraphed representation in the that the Roan- case approval proper raises in oke-Lynchburg Whitefield his division was not a area, purposes. Roanoke at same time unit while for collective ad- Argabrite Accordingly, accept Whitefield that no advised we refuse justment Lynchburg respect, in re- should be made in it finding since wage repre- increase on account garding vesting would be tantamount pending bargaining conference group of one sentative Union, scheduled to be which was held unwarranted control over other days later. represented than it. those propri- entertain no doubt about We allay any pos- Company, desiring ety it raise insofar as Roanoke Lynchburg grant- sible in after the unrest employees. The the Roanoke affected raise, ing of the Roanoke advised the it had also realized that Lynchburg employees that their needs Lynchburg voluntary in granted raise ensuing would be considered of, consultation without the consent Accordingly, ference with the Union. with, prior Union, immediately Argabrite instructed Whitefield to tell the conference, might appointed “nothing Lynchburg the Act this a violation of have deemed any way; them in being done hurt might tend to undermine the negotiate come when we will their time agent * * worth of * prestige and on 26th.” Union employees had selected. Great relayed these in turn instruc- Whitefield B., 4 N. L. R. Trucking Co. v. Southern Martin, Superintendent, District tions to 1942, 127 Cir., certiorari denied F.2d get “to his foremen to- telling Martin: Thus, 652, 63 S.Ct. 48. while 317 U.S. to, gether, any men that he wanted willing have been there was an increase them tell Lynchburg, increases in grant wage Roanoke, probably would hear at and extent of these increases exact terms it, may get up. mixed We about necessarily depend upon the out- would definitely know them to reason wanted subsequent bargain- collective come of the getting Lynchburg one at they were not the Union. ing with fact was because bargain with the union were about to accept unable we We are therefore an increase for make Company and we couldn’t finding the Board that the employees pending nego- practice those Lynchburg an unfair committed labor the union”. wage granting increase to tiations to the Yet passed rights privileges these were this information same Martin men. then so advised their accorded who the Union and our decision foremen Works, N. L. R. B. Alkali v. Mathieson excerpts from the The Board has carved disposes of adequately to show seemingly tend evidence the Board’s contention that employees were Lynchburg unlawfully acquiesced in the circulation raise impression by that a the foremen petition. See, also, Sun B. v. N. L. R. Union had denied them because Shipbuilding Drydock Co., & way. replaced these stood in Ne Du Pont De and E. I. place proper isolated statements their B., mours & Co. 116 F. v. N. L. R. have examined the record 2d 388. testimony. light context in the of all the *4 evidence We find an absence of substantial Reynolds, It is true that a fore- general position by Board taken the the Company, petition man of the discussed the relied since the isolation of the statements Painter, inquired with progress as to Painter’s by the true on. Board to torture the served petition, copied and even meaning. employees the names signed who had petition. For this obvious indiscretion convincing that The record is and clear Reynolds promptly effectively rep- was and super- Company’s instructions to its superior by rimanded There is his officer. employees entirely neutral visory to be no evidence whatever in the record to strictly cerning carried out. the Union were Reyn- show that this action on Any variation was an incon- therefrom any single olds had in inducing effect a sequential which been circumstance has employee sign petition. Indeed, beyond by magnified just its desserts Painter, there is nothing here to show that by Board. find no act or statement We signatures in soliciting petition, even Company responsible to his either its of- or any employee mentioned to his reasonably conversa- which construed ficials be Reynolds. tion with having as constituted effective obstacle expression to the free the wishes of the Reynolds’ damaging effect of ac- employees. pervert We refuse to an in- tion, any, by amply counterbalanced supervisory advertent statement prophetic repre- remark of the Union ployee designed into a malicious and at- sentative, McIntosh, frankly who admitted: Company tempt crush and render “He company didn’t think the had done useless the Union. anything deliberately, any super- or of its petition; visors connection with this We now turn consideration to a apparently appeared be, it practice alleged unfair labor what second expression, expression men, Company. free This concerns one Painter, they non-supervisory employee did think that he —some prior small acts Lynchburg, against gestures or the foremen who had “voted they might wholeheartedly” which have done Union the election. He entirely unknowingly might given have later decided that would be in the best employees company interests of all the to eliminate an idea that union, plant. Accordingly, against the Union from the that he felt that initiative, acting on his own he addressed the Board would hold that an unfair labor Jackson, Lynchburg Preston, letter to' practice, district and then he said to manager, which stated: (counsel Company), ‘You know for the things magnified how little like that can be great fellow hold esteem “We up preparing when it comes built you manager ap- for as our have case, work them all for we’ll every preciated advantage you ” are worth.’ past. through us in And care- thinking governed ful we do not want to be pivotal We now come to the issue and or affiliated with union. upon pillar Company’s main undersigned acknowledge position “We with Company justified rests. Was the signature.” our petition accepting the unsolicited of a large majority of ap- its in the signatures solicited for Painter this docu- propriate bargaining unit as during May conclusive evi- ment the week of procuring longer successful dence of fact that the Union no names. representative makes much of the fact was their for The Board collective bar- Company purposes, property gaining Painter acted on so as to warrant the re- wages having his time without docked. fusal major objective of Inasmuch as a duly Union as the credited despite Wagner bring about a contract not, Act is to employees? think parties some fair binding with both holding our degree permanence, that a we feel practices guilty of other unfair long- certification endowed with discussed must be found the Board and above evity accomplish essential us. sufficient purpose. certifica- operative of a life respect, The instant time, tion should least a reasonable be at recent de is therefore from our different dependent upon circumstances of Trucking Co. v. cision in Great Southern Surely Congress individual in es- case. B., January N. L. R. decided tablishing machinery the enforce- Nevertheless, we feel not have intended ment Act could Southern doctrine enunciated the Great of the Act administration defeat equally applicable Trucking Co. case stability to a measure of denying such here, responsibil namely, the primary connection, quote In this certification. ity of the true the ascertainment following approval statements placed upon properly appear in Board’s brief: very subject matter “The nature courts. no the Act deals leaves room *5 Board, Accordingly, when after the Company’s) contention. Em- (the proper statutory procedure, following the ployer-employee flowing a relations entail unit, has certification a this to attitudes, relations and stream of human by certification must be honored the Com- en- continually by modified innumerable. force, pany long so as it remains at variations, day day by vironmental to least for a reasonable time. To assume by and moods the changes in desires and speaks that the Board’s certification be, process itself. It there- bargaining certainty only day the its issuance of day fore, presents each successive Company may, impunity, and that a employee picture attitudes, and of different bargain time thereafter refuse col- to redeterminations of the successive lectively ground change on the of employees’ might record with choice duly sentiment divested the certified precision shifting the greater currents majority of its status would reason, very unit. this the For litigious judicial lead bedlam to chaos. however, present change showing of can- Indeed, Company’s if contention were the serve the effect of the Board’s to abate correct, might the Board’s certification nor the certification. Neither the Board subject even be to nullification obsolete continually, by can stand courts Gallup poll an interim informal vote stantly the state the reexamine of ever- very day Thus, on the its issuance. changing to redetermine the authori- stream reports major- certification the will of the designated representative. ty recently aof ity day as of the of the election Necessarily the line be drawn at some necessarily does not issue until after time; point fact-finding and when following sequence of events has taken statutory body, pursuant authority to place: votes, (1) (2) count election, upon a fair and secret a de- makes report Regional Director employes, termination of the will Board, (3) the notification of the results durability certification must be accorded a parties, (4) passage to the time for practical consistent with the administration parties objections to file either to the legislative policy. report, (S) election or to the the consid- ‡ ‡ objections, any, by :fc sfc eration of such ^ decision, (6) the Board’s construction, final (the Company’s) “Under Thus, perhaps weeks or later! months the however, Congressionally encouraged this repeated holding of constant and elections peaceful negotiation process would have quite impracticable. knowledge on the to be conducted bargainers authority that the It of both therefore obvious that the Com- currently subject pany’s position clearly incompatible them was with of one of employee first shift of Congressional resulting intent since a revocation be, pursuant might might certification occur. To re- to the Com- sentiment employer, interpretation pany’s theory, subject such defeasance almost calcitrant n before procrastinate. invitation certification could be an- would be even employer nounced. it would be law-abiding To the expenditure organizer that the C. had been bribed I. O. to the honest a deterrent - Company, he would the President bargaining, for and effort that, by requesting the wrote a letter whatever to the have no assurance Ninth completed, revocation negotiations the certification. time Union would were that, join under position Appeals Court of held be in a still Union, circumstances, it- these justified binding in a contract. To hasty spur refusing and unconsidered be would re- possibility anticipate the Union after the date of letter action that order to good- point illegal extended vocation. of both during some Thus the action employees might enough deemed faith Union was to reduce certification. in their sufficientto vitiate the Board’s waver Union’s minority.” momentarily, expounded to a These facts render the doctrine majority, even clearly inapplicable Court case before us. case, we think Returning instant to the We must remember if the Company’s position is reduced that the represented by organ- do wish certification, to be some the claim that ization than the union certified hearing and ad- based a Board Board, they may always them- avail the selves of anonymity of a secret vantageous statutory procedure supervised by is to be vitiated itself, 9(c), Act Section U.S.C.A. open § informal and by petition circulation of an 159(c), in guarantee order to after than ten weeks less genuine spected. re- be desires can ascertained to ac- issued. We refuse certification was cept Act, for interpretation of the adequate protection preclude it would held properly The Board therefore de- very rights Act was elapsed reasonable time had not Botany R. B. v. signed to secure. N. L. *6 certification, the and that since election and Co., Cir., Mills 3 Worsted in full force the certification still remained not take it The effect, the under the circumstances of disregard which a certification itself thus to Board, accordingly, instant re case. The time, remained in full at least at petition constituting regard fused to the force and effect. adequate Company’s justification for the prescribe the does not Since the Act collectively bargain refusal to length given certif- time for which Union. valid, accept the we shall remain ication legal invalid in the Board’s order was Since the of the Board conclusion respects than its find- certain and broader rep- recognize the certified Company must modify respects, hereby ings in period for a reasonable resentative enforced the order and direct that only be certification, or the issuance after 2(a) respect 1(a), with to sections set aside is either until or the certification 2(b), require the appropriate action of replaced by collectively bargain with the Union. Act. Cf. in accord the order modified and Petition to enforce B., Corp. R. Valley Cir., Iron N. L. Mould & v. affirmed. 116 F.2d 760. 7 great the with care have examined by Company, especially the on SOPER, Judge (dissenting). cases relied Hollywood-Maxwell Com- v. L. R. B. N. opinion by foregoing It established is 815; L. R. pany, N. labor be- court that relations Cir., 1940, Co., Mills Whittier B. v. Appalachian Electric Power tween the Remington R. B. Rand N. L. employees entirely were and its Cir., 1938, Co., 94 F.2d 862. The first fault, of either man- free from cases, although the most favor- of these company until men refused agement or Company’s position, yet able union; agents bargain cry from situation in the in- very far bargain, offered to union that when the case. stant actually represent company’s did employees. Moreover, by Hollywood-Maxwell it is found C. I. In the Board made two mis- by the Labor was certified the Board as court that Union O. proceedings: handling (1) bargaining agent in exclusive takes judgment splitting Lynch- off employees in mistake of When discovered ployees. establishing Roanoke-Lynch- The Board’s reason for company’s burg unit, opin- Lynch- separate as the Lynchburg as a burg establishing division and out, fact points ion bargaining of the court was employees separate burg as a employees unit; in hold- a vote of all of the fact (2) a mistake of prob- would Roanoke-Lynchburg division subsequent repudiation ing that the union, ably and on employees was adverse to Lynchburg union sep- Lynchburg although there this account was company, induced was support the arate status. Even the vote was evidence to here no substantial identity close—41 union. The to 40 finding. surprising conclusion The been, company of interests two reached nevertheless complete, mistake in plants and it is and the bargain, wrong refusing apparent as soon ordered, separating the manda- them became notwithstanding now wages tory statute, with as at Roanoke were raised terms of the repudiated represent promptly authority Lynchburg agents whose status, representa- union, the tive, whose as their employees has been revoked. impeded raise simultaneous unit bargaining of a determination history Lynchburg. of the Board’s This bar- and the certification may properly action be considered in deter- by the em- gaining representatives selected mining propriety of the order of ployees are matters committed § Board now under review. the de- Labor statute to the subject ju- the Board was second mistake of cision of Board is Lynch- deciding the statute. the action of dicial review under 10 of § support However, employer charged burg employees withdrawing when the practice failing to from was due to the interference the union labor unfair company. court representatives of and coercion of the bargain with the certified unit, validity there was no substantial of the cer- has found that courts; support finding subj ect review the evidence to and that tification entirely company acted the blameless. Board has and if it is found Nevertheless, arbitrarily capriciously, abused the court concludes that or has binding must sub discretion, is not on the future its action representation agent Plate Glass Na- Pittsburgh court. Co. v. mit precedent repudiate. desire to No tional Labor Relations 146, 152, 698, 701, conclusion found affirmed 313 U.S. of this can be *7 1251; 908, amongst 85 L.Ed. National the numerous cases considered 61 S.Ct. many There are decisions Botany v. Worsted the courts.* Labor Relations Board 876; Mills, Cir., employer influences National Labor that if an 3 which hold practices Jersey employees by unfair labor Relations Board v. Delaware-New his 130; repre Co., support American from their chosen Ferry withdraw sentative, Re- must of Labor v. National Labor continue to Federation he until, 401, 300, through their in 308 U.S. S.Ct. them lations effect of the 347. the determination L.Ed. * only upon ed communica- court of all its effectiveness The ease repudiat- tion, Labor Relations Board undisclosed relies is National ing, immediately Botany Mills, Cir., after the election was 133 F. v. Worsted employer held, the ballot count. in but case that the 2d change improperly sup this wished to to have acted found concerning pressing their minds it had re the information which agent, could have asked the Board for had withdrawn that ceived support another If the Board union. In this election. had arbi- trarily (133 it within refused reasonable said connection court might 882); 881, pages case time then we where a “The Board has authority power question could be raised whether it had its to ascertain within majority duty group done its under the statute. But of not the facts of this or are case. election other means. those chosen, no that there merit method is conclude is Bot- we take any’s regarded it, contention the Board ballot is erred secret as the because employer way getting in its order gain bar- an untram effective most bargaining agent.” expression the certified of the meled desire Surely it is not to. be defeat- electorate. dissipated.** cide what Board has a reasonable time. illegal of his acts been conclusion, reached its relevance a reasonable Obviously have no cases these elapsed, by had finding from all employer when exonerated employer wrongful guilty had been fault. persisted; duct whose evil influence still union’s loss Even in cases in which the finding gone but this now has out wrongful con- majority is traceable court, through opinion case employer or the duct on nothing or- left to the Board’s employees, has to decided der empty phrase. but an To and lifeless can- recognize the union Board’s order give uphold this case*will effect fails to face not be enforced when it rights power, deny it will an order realities of situation. Such working created which the Board was men Labor Relations reversed in National protect. 240, Corp., Fansteel 306 U.S. v. 599, 627, 123 A.L.R. S.Ct. 83 L.Ed. employer indulged where certain and sub- anti-union statements and actions majority sequently through the union lost discharge of em- justifiable ployees participated had in a sit-down who strike; an order failed en- and such ANGLIM, National Labor Relations forcement EMPORIUM CAPWELL CO. Co., Hollywood-Maxwell Board v. of Internal Collector Revenue. the men revoked their where 10423. No. was discovered choice of that the union when it Appeals, Circuit Court of Ninth Circuit. bribed leader had been union company. If in president such Jan. 1944. may be cases certificate set the Board’s Rehearing Denied March courts, ground can on what aside uphold employees’ right we refuse to to agent when no choose their to them fault can be attributed either employer?

to their Only question one answer made; been or can be re- totally inadequate in flection is seen to be present situation. It is said given vitality must be Board’s certificate for at least a reasonable time and every transient whim or be set aside part of change mind on the the em- *8 orderly ployees, administra- for otherwise impossible. would be tion of the statute true; still but it is nec- This is course essary every of circumstances de- set ** 249; v. Board v. Labor Board National Labor Relations Relations National Bottling Co., 512, Cir., Co., 8 62 S. Wm. 250; 129 F.2d Tehel Lorillard 314 U.S. P. 380; Labor Relations Board International National 86 L.Ed.

Ct. Ass’n of Corp., Cir., Moltrup Labor v. Products v. National Steel 3 Machinists Oughton 612; F.2d 61 S.Ct. 121 v. National Labor 311 U.S. Relations 83, Cir., 50; 486; Rela Relations National cago Apparatus Co., 3 F.2d National Labor 118 85 L.Ed. Dyeing Ass’n, Relations v. Labor Board Chi Bradford Board v. tions Cir., 7 L.Ed. 60 S.Ct. 84 U.S. 310 753; Valley Corp. 1226; Board Mould Iron v. Na Labor & Relations National Co., Cir., 989; tional 7 1 F.2d Labor Relations 137 Franks Bros. v. Mfg. 760; F.2d Medo 116 Bussmann Co. Board v. v. Labor Relations National Board, Cir., 279; Corp., Labor Na National Relations Photo Labor Burke F.2d National Relations v. Relations Board Labor tional Mfg. Highland Co., Cir., Co., Cir., Park & Tool Machine 618; Board v. Labor Relations National Co., Cir., 132 F.2d Hobbs E. Clinton