Virginia Electric & Power Co. v. National Labor Relations Board

390 continued, having except no interest intended reasonable minds clause good health found against to find the truth could not have insurer protecting the protect and admittedly were not signing the answers material between the condition change of ver- the failure to direct a payment of also false. For dict, application judg- judgment evidence and the since the reversed premium, and that first ap- ment which should have been rendered on conclusively that there was showed times, rendered for there the instructed verdict here those change between parent further defendant. agreement. breach She was no contends, if, appellant insists that Reversed and rendered. protects insurer clause ap- between change of condition against premium payment against plication and existing the time of ill health a condition of the this application, evidence on is- as to demand verdict sue was not such pointing that in Appellant defendant. applicant stated that case the the Wilkins he so far as good' health in he was “in had information”, whereas, knowledge or flatly and without he stated in this case qualification, ELECTRIC CO. v. VIRGINIA & POWER “I the above an- declare that NATIONAL LABOR RELATIONS that I am now full and true and swers are BOARD. health”, usually insists that in sound and am unqualified Wilk- statement makes INDEPENDENT OF EM ORGANIZATION cases, many inapplicable. Citing ins case OF VIRGINIA ELECTRIC PLOYEES further; agreement in it insists & POWER CO. v. SAME. prevents taking effect question Nos. 5020. good health policy “if the not is assured paid”; premium first when the Appeals, Fourth Circuit Circuit. evidence showed uncontradicted heart been examined had deceased condition for which 1942. Dec. treated some months 18 and from policy was issued after its issuance exist- two months he died ed, he was not thereof health, policy when the was delivered good premium paid. need first We

not, however, or wheth- consider determine appellee appellant or has the of it er defense, first for we think Metropolitan Life Insurance settled 446,2 Madden, Cir., 117 F.2d 5 Co. v. directed the verdict as- its second defense that defendant falsely questions seeking answered sured was material information risk. In to the na- view examination the treatment ture highly was a insured given man, and the lack of evidence intelligent memory failed, mind his had jury, issue no fact 957; Metropoli Cir., 2 Jefferson Standard 69 F.2d those cited Besides Stevenson, Cir., F. opinion, Ins. Co. v. same Life other eases to the ef tan McSweeney 72; v. Prudential Price, Cir., Insur 2d New York Life v. fect Cir., 128 F.2d Geer v. v. Guardian Life ance Tutewiler F.2d Cir., Mutual Life N.Y. Aetna Life Union Ins. Ins. Bolding, N.E.2d 125. Co. Ins. Stewart, Life Ins. York Co.

New George D. Moore, Gibson and T. Justin Richmond, (Hunton, Williams, both Va. Anderson, Moore, Gay Richmond, Va., & petitioner brief), on the No. 5013. White, Wm. of Petersburg, Earle Va. Hadlick, (Paul Washington, C., D. petitioner brief), for No. 5020. Watts, Counsel, Robert B. Gen. National Washington, Labor Relations Board D. Gross, (Ernest A. C. Associate Gen. Coun- Lichtenstein, sel, Howard Asst. Gen. Coun- sel, Weyand Owsley Vose, Attys., Ruth National Labor Relations all of C., Washington, brief), D. for re- spondent. PARKER, SOPER, DOBIE, Before Judges. Circuit Union Ct. PARKER, Dodd Judge. Circuit Co., Cir., Pries Indemnity Elec- petitions by Virginia These ter v. Southern called Company, hereafter tric and Power 57; Carpenter Durell, Cir., F.2d v. 6 90 Organ- company, Independent and the DuPont de Claiborne-Reno Co. E. I. v. Employees Virginia Elec- ization of Gulf, Co., Cir., Nemours & 8 Company, tric and Power hereafter called Hardy, 151 Mobile Co. v. & Northern R. E., the I. an aside order of the 131, 536, 61 Miss. 117 A.L.R. So. National Labor ordering Relations Board 339, Everett, 252 Morehouse 141 Wash. v. the disestablishment I. O. E. as a 157, Mahany P. v. Kansas 58 A.L.R. company organization, reinstate- 16, Railways Co., City Mo.Sup., 254 S.W. pay discharged ment back with two 29 Int. Text Book A.L.R. v. White and reimbursement of L.R.A., 210, 121, 42 Iowa 136 N.W. deductions of amounts N.S., nothing Motor There is in Ford 346. agreement. the I. O. E. under a check-off B., 364, Co. L. v. N. R. 305 U.S. The Board asks that order be enforced. 301, 221, upon years The was ago, case before us two relies, rule is to indicate that the same not setting when entered aside appeal applied to be decisions on order of the Board theretofore entered. Supreme judgments of Cir Court from Virginia Electric & Power Co. L. R. N. dealing with orders Appeals cuit Courts Supreme 414. The That case involved of the Labor Board. granted Court certiorari and reversed our sufficiency of evi consideration with decision direction that the case be Court, Supreme by dence remanded to the Board for redetermination power Appeals Court of of the Circuit of the issues in the of that Court’s pur to the Board for to remand a case opinion. N. Virginia L. B. v. Electric pose setting findings aside its and order 469, & Power 314 U.S. making upon its decision and order re and done, L.Ed. 348. This was the case very That is different consideration. was heard the Board on the record here, directing, was- as done matter prior hearing, at the without the introduc- be remanded for that case testimony. tion of additional clarify findings so as to show whether reaching or its conclusion it had had not portion of the order direct upon theory of acted an erroneous law. ing disestablishment of the I. O. isE. as opinion ground supported, it In our former discussed sailed on the that is not very upon peti- length matters This, however, substantial evidence. rely reached the tioners now conclusion ground of our former was decision set disestablishment was order; that the order of not aside the Board’s ting re supported substantial evidence. It was Supreme of that decision versal decision, Board, that our and not precludes holding another that Court Supreme Court; reviewed which was is insufficient. The identical evidence case requires that court proper precisely ap similar that which assumption not that it would have re- pellate judg reverses non suit or court based on the ment a verdict directed defendant versed decision insufficien- insufficiency unless had cy it deemed ground of the evidence Certainly erroneous. decision such case lower court that evidence. reception have remanded the limited in the court would not case upon remand findings, if evidence, precluded evi- from ren for clarification nor it held, it, we was insufficient may dence any judgment appropri be dering that any finding of domination. to sustain but, granted; trial upon the new ate involving insufficient find- is not one case passed upon by evidence effect is a remand in order court', ings where appellate decision of that findings be made. There was sufficient court final and lower court finding domination ac- a clear non suit or direct grant a verdict again comprehensive companied by finding substantially similar evi same upon the facts; but, expres- evidentiary because of that extent the decision of To dence. used sions becomes the law of the court case. appellate domina- certain 553; C.J.S., Appeal Error, was 3 Am.Jur. upon certain of these not based 1508; Thompson was tion p. Maxwell § alone, i.e. evidentiary the bulletin facts S. Land-Grant Bishop, warning employ- Edwards’ May with- speeches April discharged ees that would connection being considered O’, ‘messing discharge sug- C. evidence. with the other Mann, quick Inde- formation of remanded by anyone gested evidence; pendent, manage- it which the taking further formation, played in have ment court inconceivable further that conclusion would be vitiated and directed our decision reversed had been fact what Board considered Board unless action opinion conjunction what said in properly action it did.” the Board could take had intended so to decide. And, showing was re- many say in so While the court did not by manded the for a determination testimony that was substantial words Board as whether or not domination justify Board in the which would record by shown the evidence without reference very action, clear that it was made speeches, bulletin or whether or have been sustained if Board would by not was shown the whole course of totality had been based on by evidenced in these utter- conduct question as evidence and there had been no ances, questions these were held being solely to its on bulletin based questions upon to be the Board speeches. the court this connection evidence, following portion opin- of the 10(e) of said: “The command of section pertinent: ion is 160(e)] ‘the the Act U.S.C.A. [29 § specifically “It is clear that the Board facts, findings of the as Board found that those utterances were unfair evidence, supported by shall be conclusive’ practices, appear and it does not independent precludes consideration e th Board raised them to the stature Bearing we in mind must the facts. this surrounding coercion cir reliance guard against allowing our views ever If are cumstances. thus to utterances agency be substituted for those of separated background, from their we be Congress to administer has created find it difficult to sustain co finding conclusion the Act. But the Board’s here ercion with alone. Company Independent was a domi that the speeches bulletin set forth the upon find heavily nated union seems based they please of the as to do with ambiguity ings free from which are not fear of retaliation Company. Board, and doubt. We believe Perhaps the purport these utterances Court, undertake the and not this imponderable be altered subtleties 469, 62 U.S. task clarification.’ [314 ap at work which our it is not function to 86 L.Ed. 348.] praise. Whether there are find sufficient pointing After out that the Board had ings interference, restraint, and evidence of speeches had inter- found the bulletin and coercion, and domination without refer with, fered restrained and coerced speeches, ence to the bulletin and the employees, contended whether whole course evi conduct repugnant to the First that this part by denced in the utterances was aimed Amendment, held that objectives achieving forbidden enjoin employer express- did not Act, questions decide Board to problems, policies or ing his views on labor upon the evidence. part by but that conduct evidenced “Here sufficiently we are not certain from speech might amount coercion connec- findings the Board based its conclu- It then went with circumstances. tion other regard Independent with upon sion say: the Board’s order here on to “If the whole of conduct course revealed totality fairly said to based on appears record. Rather this during period Company’s activities heavily rested findings Board find- not consider the question, regard speeches to the bulletin the coercive effect ings of the Board as to regard adequacy of which as doubtful. speeches in bulletin and the isolation remand the cause to We therefore the Cir- respects findings the other con- Appeals cuit Court directions to company. If Board’s ul- duct complex remand it to redetermina- conclusion is based timate light opin- issues tion of the activities, back- the anti-union supplied.) (Italics ground Company, the activities of ion.” reappraised The Board evidence accordingly find the posting light in the opin- Court’s bulletin was an integral part interference, restraint, spondent’s ion and has found conduct, such, interfered coercion with, and domination the whole restrained, respond- and coerced the evidence and in consideration ent’s rights exercise of “complex guaranteed activities” shown the evi- in sec. 7 of the Act [29 done, dence. This was same C.A. § 157].” Board, completely but Board with a speeches That the appraised were changed membership. done, It was light of evidence, the other not held forma, pro appraisal a careful of coercive without appears reference thereto the circumstances relied In the first on. from the following passages con- decision of the conclusions re- clusions : garding the I. O. E. contained in “We agree cannot message left printed two of pages of the record complete and unfettered decision, before us. In the last these con- representatives freedom of choice of pages, clusions cover more than fourteen templated by the Act. Evaluating the in which the Board’s evaluation message as a whole in the the re- fully circumstances' forth. With spondent’s long-standing opposition to the respect April bulletin, the to the organization employees, of the the anti- states its conclusions as follows: “As re- union Superintendent Bishop, activities of April gards bulletin, the we are not the April bulletin of to the appealing respondent’s argument unmindful of the employees ignore to the of the overtures employees’ its reference to the organizers nationally of organi- affiliated join the to union of their choice and its zations, the discharge of Mann for advo- employee statement that no suffer cating a union, affiliation with ‘national’ membership, assured the respondent’s and the subsequent support employees impartiality, its proponents the I. O. E. in- employees hence the could have been terference activities the -of the adher- representa- restrained in their choice of nationally ents of organizations, affiliated by any statement contained in the tives due giving regard to sensitivity the however, agree, bulletin. We do not of employees to even expressions subtle respondent’s to the brief reference preference part of their em- employees’ under Act rendered rights ployers, we respondent, find that in employees wholly free with urging upon employee representatives contrary, joining On in view unions. the formation of bargaining a agency of respondent’s past hostility ‘own,’ impaired their employees’ free organizations, timing and in view of the representatives,' choice of notwithstanding bulletin, nationally after affiliated respondent’s reference message in the attempted organize organizations had employees’ rights Act. employees a when the and at time “Upon facts, all the we are convinced Supreme sustaining the Court decisions May and find' that 24 meetings validity of further at- rendered arranged respondent’s message to imminent, tempts we believe that prepared pur- ployees discouraged could not fail to be pose bringing organizations about formation of joining ‘national’ labor company-wide organization. unaffiliated respondent’s in posting action whole, messages bulletin, contain, The which, themselves as we clearly as a so above, thinly plea disguised have found respondent’s opposition to their showed the just such step. respondent’s organ- the formation of an such a The taking sub- activities, respondent ization. Had not the de- sequent including its successful termined effect the formation of effect the formation of a such effort com- an organization and the there would have been pany-wide discharge respondent’s opposition occasion for the because of his lawful ar- of Mann did, May meetings organization, revealing light ranging cast as it an only recently respondent’s in for it had ‘advised’ posting motives the em- rights Viewing ployees concerning their bulletin under the bulletin. background posted procedure May which was Act. respondent’s subsequent meetings obviously activities, chosen with a clearly find the facilitating we bulletin view to coercive. We formation of the it, support to I. has contributed Not satisfied organization. desired respects the other and has in this and transmitting the bulletin board method restrained, with, interfered forth re- above employees, which the messages to the employees in the exercise and coerced its spondent past, had utilized in section 7 guaranteed in rights message respondent time the delivered the act.” the em- personally representatives behest. respondent’s chosen at apart from the doctrine And respondent strategy This enabled in the case”, we feel “law al- spokesman project obtain light of intimation of the clear every department. The device most sufficiency Court as to the places and withdrawing meeting we would sustain domination representa- suggesting that justified holding it insufficient. not be discussion, we be- further tives remain for quoted language above referring oppor- give lieve was intended com backgrouncj of the to “the anti-union tunity plans to formulate pany, warning Edwards’ thus with their constituents and sulting ‘messing discharged would be expedite organiza- the formation Mann, O.’, discharge of with the C. conclude, therefore, tion. We quick Independent, formation urged spondent arranged meetings management which the formation of formation”, played in the court organization be- company-wide unaffiliated probative value on the issue ascribed cause feared course to these circumstances which domination respondent did not might pursue if the ignore. do not feel respondent did intervene, so these last decision of the Board considers exercise to control a further effort speeches with the connection bulletin self- of employees their its points probative of and to other features re- the organization, doing that so and fully testimony appraised in the its sphere injected into of spondent itself admonished in former decision. We are exclusively activity reserved Supreme decision that “we Court’s with, thereby ployees interfered guard against allowing must ever views our employees strained, coerced agency be substituted for those of the rights in sec. guaranteed exercise of the Congress which has created to administer Act.” 7 of the Act”; and other recent decisions of emphasized findings have the court that of summarizing the evidence After binding, are with greater at several features evaluating its facts, respect evidentiary with also quot- justified in would be length than we respect to conclusions of fact which here, conclusion Board states its ing reasonably Gray be drawn from them. Cf. follows: respect to the I. O. E. as Powell, above, we “Upon facts summarized all the L.Ed. 301. I. E. was not conclude choice; employees’ free result Having conclusion, reached feel response urgings initiated it was express that we it should additional May meetings respondent at the of the decision, ground of to the end that up organization; ‘own’ their to set abe final decision of the support organiza- respondent’s Court, Supreme granted, if certiorari period during formative the critical tion whatever court’s view be nationally opposition to consistent and its applicability of the doctrine of respon- organizations largely affiliated “law the case”. fact that the employees adherence sible clusion variance with that at reached contract and that the organization; appeal on the former does us not militate shop granting E. closed I. O. against it. We did then have the bene- O, E. dues analysis check-off fit of contained respondent’s ef- decision, climax of the the Board’s last nor did marked organization light Supreme an unaffiliated erect forts to Court’s nationally duty affiliated against opinion. question Our decide a bulwark presented present respond- We find now organizations. that which and interfered with situation and existed dominated ent has if, appeal; the time of the former and administration the formation consideration of subsequent decisions of zation. Employees discharged were in fact Supreme Court and the fuller discus- join refused to E. I. O. sion ap- evidence The check-off provision, a device pears that we applying were mistaken in respondent assured the financial stabil- the record before us ity standards which the company-dominated organization, prescribes, can mistake could no more be avoided precedent furnish present action. than could compulsory membership re- We unhesitatingly error, admit quirement. and correct by-laws of the I. O. E. fact, whether pointed law or when out required its members to check-off execute petition counsel on rehearing. We authorizations penalty being so, hesitate to do when er- dropped from membership E., in the I. O. pointed ror is by opinions the Su- thereby, closed-shop provi- under the preme Court. sion, jobs. from their We find that monies thus deducted from wages Little need be said as to dis price constituted the of re- charges. Mann, As discharge taining jobs, price coerced from background probative evidence of respondent’s them for purpose support- domination, value on the issue of ing and maintaining unquestionably sufficient to sustain the respondent had dominated in order finding Board’s discriminatory as to representation. thwart bona fide We fur- discharge. our recent decision in See that, ther find as a result imposition Hickory Mfg. Chair Co. v. N. L. R. the illegal closed-shop and check-off re- decided November quirements, a defi- suffered 1942. The the I. O. E. was deprivation equal nite loss and wages brings within the cate amounts deducted from their gory practices of unfair labor the dis paid appro- over to the It is I. O. charge of Staunton because he would not priate a member thereof become accordance reimbursement of exacted from amounts shop agreement. with the closed that,, illegal purposes. them for findWe circumstances, in these effects of the portion With practices may unfair fully order which reme- directs reimbursement of em purposes policies died and the for amounts to the I. O. E. provision completely only under the check-off Act of the con effectuated tract, where, restoring quo. Hence, we have the status a situation under shall company respondent union, contract with a order the to reimburse its dominated ployees deductions from for wages amounts deducted from and wages to the union. It true for dues and assessments employee, application each in his for I. O. E.” mem bership E., in the I. O. authorized that this 10(c) section Under of the Na done; but as the contract contained Act, 454, Relations tional Labor 49 Stat. shop provision, a closed option he had no 160(c), pow Board has U.S.C.A. § but to submit to the deduction if he de er, upon practice, a of unfair labor employment. sired retain his to Under only require person guilty there circumstances, such the check-off was un therefrom, cease and desist of to also questionably practice; an unfair labor require “to take such him affirmative ac the Board has found that reimbursement of tion, including reinstatement of wages thus deducted is pay, necessary with or without back as will expunge it. effectuate With matter, policies [chapter]”. of this this Board said: It is “We are of think, clear, opinion that, that such affirmative under the action circumstances case, respondent limited "reinstatement of em should be or- pay”. dered to reimburse each or without back any for As said respondent by Judge which dissenting portion amounts Arant deduct- wages opinion his ed from for L. dues and N. R. B. assess- v. West Ken respondent Co., Cir., ments in the I. tucky 816, O. 821, Coal closed-shop specification contract cluded a “the did add to the Board’s E., company-dominated organization, power, but illustrated the kind an af compelling thus to become firmative the Board could order make”. illegal and remain members of the organi- An requiring order reimbursement order, reparation ages. public It is a as ex such circumstances check-off under by way operating retrospectively clearly power ist here within the falls directing order cease desist as to unfair closely analogous orders practices, beginning; prac- payment wages in case of dis from their of back which, tices dis as to because forbidden criminatory discharge. In the case of amity, and there- employee has the interest industrial criminatory discharge, peace, 'Congress fore wages unfair labor has the lost the result of an wages beginning.” practice, eradicate them as from the payment of back possible the wipe ordered to out so far re to the decisions are advertent We practice effectuate effect di orders of the fusing to enforce Here, purposes act. wages deducted reimbursement of recting wages certainly de just lost im check-off.1 We under agreement, the check-off ducted pressed, however, reasoning of with the payment to a because proceed upon theory those which an unfair union is also of the Board amounts action practice. and not It is imposition penalty adjudica or the of a neces us, say what action is affirmative beyond powers or claim tion of a tort practice sary expunge effect such be set aside its action must purposes of the act. effectuate the contravening equitable principles. noteWe B., Phelps-Dodge Corp. R. 313 U. v. N. L. only that in of the cases was there three 1271, 845, 177, 194, L.Ed S. S.Ct. involving agreement check-off under B. Link N. R. Belt A.L.R. L. of these shop, a closed that two 358, 584, 600, L.Ed. 311 U.S. 61 S.Ct. circuit, the first of these one of Machinists International Ass’n opinion dissenting more two forth called B., 73, 82, 72, L. 61 S. v. N. R. opinion than the convincing us 83, New R. B. v. Ct. 85 L.Ed. N. L. City the case Kansas court.3 And port Dry Shipbuilding & Dock News Stone, speak Judge Light & Power 241, 250, 84 L.Ed. 308 U.S. Appeals of ing the Circuit Court of Grey Pennsylvania R. N. B. L. Circuit, points while the out that 8th Lines, 261, 271, 58 S.Ct. hound 303 U.S. justify an involved did not 307. 115 A.L.R. reimbursement, might situations order, course, true, justify such the Board arise not, him guise effectuating distinguished under the here, act, impose penalties case as we have where purposes of initiated, Republic promoted adjudicate Cf. formed tort claims. support assured its Corp. 311 U.S. L. Steel v. N. Judge the check-off. Stone by agreeing 6. An order direct- 85 L.Ed. may be situa- case: “There in that ing deducted said reimbursement an order. practice, justify such pursuant how- which would to an unfair labor tions proposition ever, fall either of these This is not one. within does dues collecting as a method by Judge As Hutcheson check-off categories. said Association, op- Cir., Inc., B., originated R. 5 Agwilines, N. v. L. only company and conceded posed author- 87 151: “The statute F.2d the Association. Such reparation interest demand of izes orders not solely fixed the Association employee, the interest of dues were but is solely in activities. oper- This public. A and used cease and desist order award, initi- where retrospectively private is not instance not a ating ated, promoted organiza- by way penalty or dam- formed and operating City Light 1 Telegraph & v. L. Power Co. N. R. L. sas Western Union Co. v. N. 340; Corning Cir., Cir., 992; B., B., 111 L. R. v. 8 F.2d 2 N. B. 113 F.2d R. Greyhound Inc., Lines, Cir., B., 8 2 118 Southwestern v. L. Glass Works N. R. Kentucky 883; Cir., 625; F.2d N. L. R. B. v. Con v. 126 F.2d L. R. West N. B. Co., Cir., 816; 10 121 F.2d 120. Cir., R. Oil tinental Coal 6 116 P.2d N. L. Kentucky Cir., B. v. West Coal 2 N. R. L. v. United States Truck B. City Light Co., supra.; & Kansas Power R. N. J. Greene L. B. v. B., supra; Tanning Co., N. B. Cir., N. R. L. R. v. J. baum Co. v. L. F.2d Tanning supra. Staley Mfg. B., 7 Greenebaum A. R. E. Co. v. N. L. Judge 3 Opinion Mfg. Cir., Arant v. West F.2d Co. Reliance supra. Kentucky case, Kan Coal Co. N. L. R. F.2d pay support through der to make assured tion and promotes pol effect ment of back is an instance of check-off. It Plan) car The (the icies the Act in manner. the same prior aof might pay af writer which thinks reinstatement with back rying an influence over 10(c) to would have been fect the entire freedom authorized § speci agent.” F. even if it specified; had been bargaining choose their [111 fication did not power, the Board’s add to 2d 348.] but the kind of an affirmative illustrated occasion for is no argued It is that there proceed order the A Board could make. dues were since the reimbursement ing before the Board is not an action at the em order of I. O. law, and the not re Board’s order does sig loses ; ployees this circumstance wrongs dress employees. to individual is remembered nificance when it Though order provides sometimes initiated found to have I. O. E. is pay deductions from back extent company for promoted earnings between dismissal rein bar defeating collective purpose statement, no has been noted in which contemplates, gaining which the Act employer was allowed to deduct an pay obliged to amount the employee might have earned retaining as means dues had he diligence used reasonable find also, employment. argued, is It job. wrongful another checkoff of check-off employees got the benefit dues is neither more nor less than tortious payment the union result to’ as the wrongful dismissal; is in neither they an were members. of swer, inquiry there an injury, to extent of course, proceeds the Act Second rightly ’Circuit insists theory maintenance should be in tort actions. The truth bene company dominated union that payment reinstatement of the employees who fit but a detriment time lost are remedies answer members of it. And it known common law but created and oth point wage increases statute. They requirements imposed ‘are result as a of contracts er benefits secured for violation of the statute are reme union; dominated appropriate dies to its enforcement.’ Mr. manifestly say impossible for it is Chief Hughes, in National Labor Justice might been se greater benefits not have Relations Board Laughlin & Steel Jones freedom choice a bar cured Corp., 615, 629, agent had not been interfered with. gaining 81 L.Ed. pro A.L.R. 1352. ‘The remembered, however, must be as above cedure the designed statute outlines is not indicated, it is not the redress award, the orders it authorizes do wrongs purpose which is the award, damages as proceeding such. The of, complained the order but the ex not, made, private cannot be one punging ab initio of un the effects of an private to enforce a right. public It is a practice. fair The mere labor disestab procedure, looking only public ends.’ union lishment Hutcheson, J., Agwilines, Inc. N. L. accomplish this result. It is ac does B., Cir., 150.” only complished when action is taken stated, petitions For reasons place parties, possible, will so far as set aside the Board’s order will be denied been if unfair where tfip will be enforced. practice had not occurred. One Order enforced. doing means this is to reimburse employees they anything for have SOPER, Judge Circuit (dissenting in deprived of as a result of it. Cf. been part). Corp. Republic v. N. Steel L. R. 77, I concur in 7, 12, result S.Ct. reached 6. The U.S. opinion except in its court up by Judge was well insofar as it matter summed approves that portion dissenting opin his order Arant in the requires Company Board which the Power Kentucky in B. v. West ion N. L. Coal employees reimburse its 816, 820, for supra, 821, all of the as fol from dues their wages for wrong order to reimburse deducted : “The for lows independent checkoffs, organization. benefit specifically though not men ful argument in Act, favor of the is analogous is order to the or- tioned organization whereby the freedom that since the checkoff was associated representa their own shop, from to choose deducted closed the monies The effect is payments tives is made secure. the wages of the men constituted losing deterrent influence obtain the under fear imposition expected flow jobs; repayment neces- from the their sary and that penalty. Supreme Court of a But offset coercive measures power to in held no purposes the Board has company and to effectuate punishment deterrent effect. flict arguments have Similar Act. Board, Republic Corp. v. Labor rejected Appeals Steel Circuit Courts five 79, 7, 11, 12, 77, 85 L. 61 S.Ct. in every case in the exercise court, power 6, speaking of Ed. power attempted. has been ac to take affirmative such Board present in in this facts policies tion as will effectuate the check- regard shop closed are that the Act, said: against upon off were forced the company in independent language “This be construed organization; will pur- spirit harmony return and remedial no now with the seeks think that money; poses do not Act. We in the Board Congress ceived no or intended to vest financial other benefit payments, virtually devise they discretion to since were turned over unlimited measures, prescribe independent organization punitive and used and thus to penalties it successful sub- fines which the in efforts to secure policies of the advantages stantial think would effectuate the authority wages and Under that ‘this conditions. Act. We have said working go so justice these does not circumstances there to order affirmative action en- punitive jurisdiction ordering money return of far as to confer men inflict the em- abling have Board to their mon- received ey’s penalty may ployer worth. Nor it choose because any is there merit in the practices, money engaged tention that should be returned he is unfair opinion compulsion. was paid though it the Board be of the because even There be ef- every might is an element duress policies shop closed wherein com- order.’ We workmen are such an fectuated pelled recognize pay affirma- power command union and said that dues, punitive. required remedial, Con- conditions these tive action are they considered Labor Re- lawful are v. National Edison Co. solidated imposed 197, 236, Board, their own 305 U.S. lations See, also, action. There greater compulsion is no 83 L.Ed. 126. union, the case of a Penn- National Labor Relations Board Lines, when closed shop Greyhound 303 U.S. sylvania fees checkoff 574, 575, voluntary result from the 267, 268, 82 L.Ed. action of the accepted by men company 831, adhere to that We 115 A.L.R. 307. against its desire in preserve order to in- construction. peace. dustrial added that view, enough jus- is not “In greater require is no reason to a return say requirements to tify the Board’s checked off in case than deterring the effect of would have recompense every violating Act. That persons directly dues to a union. much, proves argument too provision The effect of this is sufficient to sustain of the Board’s deterrent effect policies order is not to effectuate be free of an Act, completely system penalties which any for that up done independent adequate end.” it would deem the disestablishment

Case Details

Case Name: Virginia Electric & Power Co. v. National Labor Relations Board

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Dec 9, 1942

Citation: 132 F.2d 390

Docket Number: 5013, 5020

Court Abbreviation: 4th Cir.