*1 Ala., for be decided Birmingham, must be included need not now Grace, B.M. petition is present on the record. The appellant. Appellees’ the to dismiss denied. motion Ark., Westbrooke, Jonesboro, E. L. overruled, prejudice to appeal is without appellees. being so parties ad- renewed if the are STONE, SANBORN, Before vised. WOODROUGH, Judges. Circuit PER CURIAM. on to be heard the This cause came Carter, duly petition of W. verified John permitting praying be entered that an order pay- prosecute appeal him “without to security paying giving the cost or BOARD LABOR RELATIONS NATIONAL record”, printing cost NEWARK LEDGER CO. MORNING appellees dismiss to motion made No. 7556. hearing appeal (which treat on this peti- petition). as resistance to the Appeals, Circuit. Circuit Third Court qualified admin- tioner he states that Feb. Stanley Edward of the estate of istrator deceased, in- Harp, Rehearing April 17, 1941. On damages stituting the action per- Court, neither he District and that administrator, sonally nor as such nor action, are beneficiaries said of the financially defray expense of able security record, printing give appeal same, pay cost or to
give security therefor. de- that the named The record discloses surviving him who five children cedent left re- be beneficiaries case would action, covery action who, by attorneys ac- prosecuted was cording appellees, the averments of “a interest each have substantial recovery.” points appellees against made Two petition require- granting are that statute, applicable 28 U.S. ments complied with, 832, have not been C.A. § peti- showing (1) there is no in that that he entitled “believes tioner .the appeal is that his he seeks” and redress meritorious; persons (2) bene- several ficially in the action have interested
presented poverty affidavits. points think both are well We present petition to and that taken pauperis de proceed forma should Where, case, action in this nied. joint prosecuted for benefit of proceed petition persons, several pauperis is insufficient each forma unless directly recovery
person interested required by poverty affidavit makes the statute, show stating facts finan attorneys inability. Whether cial participate, are, there contract if
2G3
hire,
discriminating
regard
tenure
employment
term or condition of
be-
activity
cause of
there-
such
in,
any other
from interfer-
*3
or in
manner
with
of collective
ing
their
bar-
Agnes
gaining,
(2)
Fahy,
and
to reinstate
discharged
employee,
make her
editorial
pay, and post
for her loss of
whole
compliance.
usual notices of
by
Ledger
Fahy
discharged
Miss
was
Company
September
on
At that
president of the Newark
time she was
Guild,
Newspaper
a local
branch
Newspaper
is a
American
Guild which
department
organization
editorial
employees
newspapers. She had been
very
although
active
the Guild
and
Company strongly
Ledger
contends that
dissenting.
CLARK,
Judge,
Circuit
discharge
solely
reasons of
her
economy
was
efficiency
we are
and
nevertheless
evidentiary support
satisfied that
there
finding
of the Board that the action
membership
taken
her
was
because of
activity on
Guild.
behalf of the
Newspaper
and the
The Newark
Guild
Ledger
that
organization
Unit of
had
in-
established in 1933. In 1935 the Guild
Watts,
Robert B.
M.
Lewis
Gill
negotiations
Com-
Ledger
stituted
pany
A.
Washington,'
(Laurence
D. C.
both of
long
contract. For a
time the
for a
Counsel,
Harry
Knapp, Assistant Gen.
Company
recogni-
Ledger
grant
refused
Attys.,
Washington, D.
Brownstein,
both of
many
the Guild
exhibited in
Labor Rela-
C.,
brief), for National
on the
antagonism
organization.
ways
Board, petitioner.
tions
however,
Finally,
Ledger Company did
Goldman,
City
New York
Charles
engage
bargaining
in collective
Cutler, both of
Cutler and
(Sydney
Julius
signing
on
Guild. This
resulted
respond-
City,
brief),
on
New York
ent.
August
of a contract between
on behalf
company
acting
and the Guild
Isserman, Newark,
N.
Abraham
J.
J.
department employees
of the editorial
Kapelsohn, of New-
(Isserman,
&
Isserman
contract,
The
in addition to
Ledger.
ark,
brief),
for American
J.,
N.
hours and work-
wages,
as to
al., amici curiae.
Newspaper Guild et
conditions, stipulated
ing
that “The Pub-
MARIS, CLARK, and GOOD-
Before
discharge or otherwise dis-
lisher shall not
RICH,
Judges.
Circuit
employe because of
against any
criminate
his ac-
Guild
or because of
MARIS,
Judge.
Circuit
was
tivity
Guild.” This contract
Fahy’s discharge.
The National Labor Relations Board has
the time of
force at
Miss
Board,
petitioned
dissenting,
for a
enforc-
found
court
entered
decree
one
member
operated
order
it
to in-
against
Fahy’s discharge
the that Miss
pub-
with,
Morning Ledger Company,
Ledg-
Newark
restrain and coerce the
terfere
daily
Newark,
newspaper
Company employees
lisher of
er
in the exercise
Jersey,
guaranteed by
the Newark
Ledger.
New
known as
Section 7
petition
N.L.R.B.
To this
29 U.S.C.A.
No. 95.
the National Labor Relations
Ledger Company
filed an answer to-
and it ordered her reinstatement and
salary
her in order
cross-petition praying
payment
of lost
gether with
the the
policies
and set
effectuate the
Act.
order be reviewed
aside.
order
question
presented
us
whether
Ledger Company (1) question
directs the
in
to cease and desist from
employees
act had
discouraging
of the Board
its function
parties
fully performed when the
membership in
from
the Ameri- not been
agreement so
reached an
Newspaper
by bargained and
can
Guild and its branches
pointed
Judge Learned Hand
strued
breaches
as to
relegated,
they were
in Art
Co. v. National
out
Metals Const.
arbitration,
provided
if
argeement, to
Board, Cir., 110
F.2d
Labor Relations
remedy in the courts.
for,
or to
history
clearly
legislative
shown
Act
The National
act.1
declares
U.S.C.A.
in Section
States to
United
policy
It will thus
“to
he seen that
is the
substantial
of certain
act,
the causes
eliminate
protecting
of commerce
flow
free
obstructions to
interference,
intimidation
these
mitigate
obstruc
and eliminate
coercion,
open
for collec
encourag
they
occurred
tions when
bargaining
equality
tive
aon
basis of
procedure of collec
practice and
ing the
*4
employers
between
and
by protecting the ex
and
bargaining
freely
representatives
tive
chosen
employees
freedom of asso
by
of full
ercise workers
voluntary agreements
to the end that
be
ciation, self-organization,
designation
and
wages,
tween them
hours and other
as to
representatives
choosing,
own
of their
employment
conditions of
will be reached
the terms
negotiating
industrial strife and
and thus
unrest will
employment
their
or oth
and conditions of
be reduced. The function of the Board
protection.” As the Su
er mutual aid or
pave
is
under the act
Corpo
preme
Republic
Court
in
Steel
said
goal.
achievement of that final
When an
Board,
ration v. National Labor
311
employer
engaged
who has been
in a labor
79,
7,
—,
77,
85 L.Ed.
U.S.
61 S.Ct.
dispute
employees
with his
abandons his
encouraging
prac
the act
aimed “at
is
previous opposition
organiza
to the labor
procedure
bargaining
tice
collective
and
choice, bargains
tion which
their free
is
by
protecting the exercise
workers
and at
of full freedom of
organization
on their
with
behalf and
association,
of self-or
genuine
bargaining
into a
enters
ganization
negotiating
and of
the terms
it,
goal
agreement with
act has
employment
and
of their
or other
conditions
achieved and the
has no further
been
protection through
their
mutual aid
ly
free
respect
jurisdiction
to the labor dis
representatives.”
right
The
chosen
of pute
by
agree
settled
which has been
employees
organize
thus to
and
parties having bargained
ment. The
and
employer
collectively
express
with their
upon
agreed
the terms and conditions of
ly guaranteed
Act,
by Section
period
employment
time,
for a definite
U.S.C.A.
The
five kinds of unfair
rights
obligations
and
fixed
are
practice
labor
is
with which
alone
Board that
and all that remains is
time
for them
empowered
by
to deal are defined
Sec
carry
upon
out the terms
the contract
8,
29 U.S.C.A. 158. The first is “To
agreed.
they have
which
restrain,
with,
interfere
or coerce em
ployees
rights guar
exercise of the
If
the life of
during
such a contract
employee
discharged
anteed in section 7
of this
because of
[157
title].”
it)
particular
activity
other four all relate to
and
union
direct
species
practice
generic
contract,
of the
unfair
first
of the terms of the
violation
specifically
defined
are
right
and
mentioned
has violated a contractual
merely
prevalence.
of their
because
which the
That of the
latter is entitled
Congress intended Section 8
be so
enforced. But this
cou-
breach
first unfair
particularity
pp.
have been most
four
are
cmploj
9:
of the
restrictions
guaranteed
section
blesome.”
er —to interfere
House
Sen.Rep.
“Li
designed
succeeding
ees in the
first,
conjunction
Rep.
makes it
labor practice
upon
but
“The first unfair
573, 74th
some of the
prevalent
with,
section
rather
unfair —labor
exercise
illegal
impose
74th
with section
restrain,
general
Cong.
Cong.
and most
for an employ
spell
enumerated
practices
limitations
* * *
1st
labor prac-
guaranties
tiie
or coerce
1st Sess.
out with
practices
Sess.
trou
p.
tation
specific practices,
sections
tended to
certain
Industrial
language
merely
amplification
section
ceeding
ously
ed
tice
in section
experience
amplify
a restatement
types
(1).”
(2),
of section 7
limit
rights
Recovery
(3),
general
report.
interference
8,
(4),
stated
any way
state
taken
specification.
practices
proved
enumerated
of a
(a)
* * *
in section
more specifically
of the National
(5),
portion
quoted
and restraint
the interpre-
require
conjunction
are not
are intend-
of sub-
in sub-
of the
previ-
These
such
suc-
in-
private
may
pressed
of a
right which
be redressed
dissenting member
stipulated
in the
manner
complaint
Board that
in this case
byor
recourse
courts. The National
should
not have been entertained
contemplates
Labor Relations
no more
Act
Board.
protection
public rights
than the
A
aside
setting
decree will be entered
which it
Lico-
creates
defines. National
the order of the Board.
Board,
rice Co. Labor
309 U.S.
60 S.Ct.
2G7 mutually are collectively ly along modified lines bargain refuse to “(5) To It all concerned. satisfactory to employees, representatives of his with which, procedure or isolated detached 9(a) section subject be- agreement, once reflected a written of this [159(a) title].” Sec- result. permanent final comes a former in our pointed out As we to em- seen, guarantees we have last mentioned practices four opinion the engage right organize and ployees generic species of particular but are purpose of in concerted activities first mentioned which is practice unfair right nec- bargaining. must This collective essarily are direct Consequently we section. long prospect of as the continue so the extent consideration of ly referred to a thus be It will remains. future Section rights guaranteed employees guarantees to the act seen Clearly it is question. our answer to or- right to maintain labor continuous interfere practices which only those collective purpose ganizations employees in the coerce with, restrain signing particu- of a bargaining, after particular rights of those exercise well bargaining agreement as lar collective Board. with be dealt before. 157, provides U.S.C.A. harmony is in This conclusion right “Employees shall have that: policy declaration of act. contained form, join, assist self-organization, stated section 29 U.S.C.A. collectively organizations, by employers the denial own representatives through organize re- engage in concerted choosing, and ac- employers accept procedure fusal of bar- tivities, bargaining cause of collective industrial protection.” gaining mutual aid or other resulting obstruction inter- strife opinion we took the former view *6 Tn our commerce; protection state that of the purpose and end of the act the sole that organize right employees to of and bar- prevent and pave the inter- way towas gain collectively safeguards commerce and initial exercise the ference with the of policy encourage is that the of the a.ct bargaining Sec- right of collective which practice procedure and the of collective employees. right guarantees That tion 7 bargaining protect by and to the exercise having in this case and its exercised association, full of freedom of workers having ill a resulted collective con- exercise designation rep- self-organization and of Ledger Company between the and its tract choosing. of their resentatives own regulating wages, employees hours and conditions, working we held the Board that Accordingly Section 7 of the act jurisdiction to had no further deal with the upon Ledger the o f the conferred discriminatory discharge subsequent of Company right in the case us the before employee of in violation the contract. organization, the to maintain their Newark Guild, Newspaper signing after the of their right bargaining collective of agreement employer. with their is, however, necessarily right. continuing found, evidence, upon that Board sufficient agreements ordinarily, Collective as this dischaiged Fahy was because of her Miss definitely periods case, run for limited of activity membership in and on of behalf Negotiations for their renewal must time. Guild, discouraged and that this member the commence, place periodically may and take ship in Guild. We that these the conclude preliminarily, shortly at least after the findings the existence of an establish signing the preceding of contract. Fur part Ledger practice on the labor may any at time thermore become desir empow Company with which Board necessary was the indeed able or collec deal, restraining and ered to order tively existing for the modification of an Fahy and direction reinstate Miss proved which has appropriate were remedies. respects pay back to be some unfair or practice public by right adjustment it is created or the settled of com unworkable thus In alleged act enforced. Amal violations the was plaints or of such an Utility Workers v. bargaining gamated Consolidated agreement. Collective is thus Co, continuing 309 U.S. S.Ct. and Edison developing be a seen to which, Hughes, Mr. Chief by recog L.Ed. process law now Justice Court, Supreme relationship speaking for made nizes, between reviewing procedure employee quite be molded clear. After and the terms act, employment by (309 he said progressive- prescribed U.S. conditions of 738) by : encouraging interstate commerce lective 84 L.Ed. col- page page 265, S.Ct. Congress protecting the far, apparent it is '“So n entrustedto exclusively pros- ‘exercise workers full freedom as- sociation, self-organization, designa- com- its own proceeding ecution hearing, representatives ad- of their own choos- plaint, the conduct ing, appropriate negotiating granting judication agency employment act- terms public and conditions The Board as relief. * * interest, private not public ing in *.’ 1.” group or group, or person upon We are thus not called to de the instrument employees, is chosen termine Fahy whether Miss has an in un- the described protection from to assure right dividual to secure redress for her to remove obstruc- fair order conduct wrongful discharge or law whether the commerce.” to interstate tions Jersey New affords her a forum appropriate redress of her grievance. The upon report bill of to the Referring private right of such a existence Miss Labor of the House Committee Fahy in no affects public or 972, 74th (H.R.Rep. No. Representatives jurisdiction the exclusive of the Board to p. said Cong. 21) 1st the Chief Sess. Justice express This is enforce it. clear from the U.S., page 564 of 60 (pages 268 of 309 provision of 10(a), 29 U.S.C.A. S.Ct, 738): L.Ed. 160(a), power that the of the Board adapta- referring “After the suitable prevent practices unfair labor “shall be ex to the needs tion of Board’s orders clusive, by any and shall not be affected cases, especially particular adjustment prevention other means employeeswith or without back to reinstate pay, that has been agreement, be established Committee continued: code, law, mis or otherwise.” A “ conception of the Board’s nature private right ‘No of action contem- process may arise from fact that plated. Essentially prac- the unfair labor public right enforcement to have the concern, public are tices listed by matters of channels of interstate commerce freed from consequences, present their nature and resulting obstructions from unfair proceeding in potential; the name practices private right employeemay of an Board, upon the Board’s formal com- incidentally protected or enforced. plaint. injunctive The form of and affirma- *7 though private Even is thus relief afforded necessary pur- tive order to effectuate it nevertheless remains true that bill pose of the to remove obstructions to powers may only Board’s there be invoked when by interstate which are commerce the law public right protected is a to be public declared to be to detrimental ” processes that its are never available to a weal.’ private suitor. Licorice in National Co. v. Na- Likewise Board, 350, apparent jurisdiction that' the Relations U.S. It is tional page 799, 576, 569, prevent prac page L.Ed. labor 362, to unfair 60 S.Ct. of the Board think, proceed- equally It we very said: “The broad. tices Mr. Stone Justice jurisdiction taken the Board un- exercise this to be authorized clear that the ing case, is, any particular Relations Act is under the lan National Labor in der private 10, adjudication rights. discretionary with guage for Section not Utility jurisdiction v. to be ex Workers Consoli- is not Amalgamated Board. The 261, opinion Co., [page] in 309 U.S. Edison ercised unless dated Rept. 1147, practice complained [738], H. No. labor 84 L.Ed. the unfair S.Ct. Labor, public substantially with the Cong., 1st Sess. Committee so interferes 74th p. require, 24; Trade rights cf. Federal Commission v. created to Klesner, public 50 S.Ct. in interest. As we 280 U.S. 74 L.Ed. its restraint seen, private fact It has the mere A.L.R. 838. few of have private litigation infringed by no indicia of makes of an presence employer in is not of it of act of an itself sufficient requirement play. powers party employer than the the Board’s into The private bring other to has, however, reposed practice. Congress, an labor charged with The discretionary power public capacity complete in a give ef- de Board acts Board termine public public policy declared in each case whether the in of the Act fect appro- prevent requires it to obstructions to terest act. With the to eliminate engaged actually in have discretion we of that exercise priate persistent justify been so as to and varied interfere. apprehension similar and of continued order re scope the Board’s varied efforts in the future to interfere Board, as for consideration. mains employees’ right of self-organiza- with the Ledger seen, that the Com found bargaining, entry tion and collective Fahy because of discharging Miss pany, in a blanket order to cease and desist from all activity, had discriminated re her Guild justified. violations of the act is not Na- employment and thus dis tenure of gard to Express tional Labor Board v. Relations membership in the viola Guild couraged Co., Publishing 85 L.Ed.-. S.Ct. accordingly 8(3). or tion of Section present In the Board made case the from Company to cease desist dered the upon finding such no nor was there evidence or in the Guild discouraging finding which such a have been made. could organization of its em labor any other Accordingly we conclude that the Board and further discrimination ployees such including erred its order the blanket Fahy’s reinstatement ordered Miss paragraph para 1 (b). That clearly order was pay. much of its back So graph will be Like therefore stricken out. However, fur Board went warranted. portion paragraph (b) wise the by said discrimination It found “that ther. public Company directs the to reimburse restrained, with, respondent interfered paid agencies work relief lor monies Miss its exercise and coerced Fahy performed by her for them work rights Section 7 guaranteed Republic Corp. must be stricken out. Steel Act,” para Company by ordered Board, National Labor 311 U. (b) and desist graph 1 of its order cease Finally, 61 S.Ct. S. 85 L.Ed . —. with, interfering manner “In other provision post of the Board’s for the order employees in restraining, coercing ing of notice will be amended to conform self-organiza the exercise their present practice. Board’s tion, form, join, organiza assist tions, repre collectively through order National Labor Rela- choosing, own and to sentatives tions Board will be modified to extent pur engage in concerted activities opinion. in this indicated A decree enforc- pose bargaining or other mu ing soas modified will entered. protection, guaranteed in Sec tual aid tion 7 the Act.” CLARK, Judge (dissenting). Circuit change I no reason the view in- see Upon the sole of the find basis by my original dicated decision vote involving of an act the dis isolated It, therefore, Court.1 behooves me single employee charge of tile Board has in, judicial hope, clothe that I now to act restraining order entered blanket appropriate, mayhap convincing, even Company committing Ledger from hereafter so, empha- language. doing In let first me *8 of any act violation the statute however question in nature of the liti- size exact may it to the one act found unrelated opinion, my prop- In a failure to gation. previously committed. have been The Com emphasis may thereon have led erly allot thus, example, enjoined, for pany is change my colleagues’ of mind. pain punishment contempt, for from dominating contributing support concerned, concerned, solely to a We are organization labor in violation of Section 8 an additional tribunal. matter is right, is (2) although employee’s there no it evidence that one of an but of so; remedy. it heretofore is likewise for her There has a has ever done forum been enjoined refusing discharge both of the from the view Board col writer, improper lectively representatives discharge. an with the of its may It employees is of no moment. 8(5), in violation of al Its cause been, have found, too though it familiar shows that has actual as the evidence discharge freely discriminatory ly negotiated a union activi entered into collective ties, may because the agreement representa or it have been news with the Guild of her agree paper its made unfair estimate “sweet tive of and that this an or, may again, it ment has been twice It renewed. how reasonableness” ever, managing editor simply did not now that in because settled the absence a millinery. any In practices appreciate her taste finding 1 February 3, 1941. Filed 270 event, employee In her employee qua had al suit for the thereof she enforcement ready designed a contract party any meet become defense based unfa on the especially protection. for her This contract vorable vote of committee the Guild’s It agreement. is a was rejoinder theory in embodying her true, into, consequence entered as a spiration. employee events of here com That individual can obtain plains. in no That circumstance affects redress for the bar breach a collective puissance however. gaining agreement open longer is no generally by is in the form the Ameri used question. say longer” I “no because earlier Newspaper can and contains Guild clauses their, accompanied say rigid, courts shall we fully dispute covering the now in issue.2 working attitude toward man woman employee presented grievances her generally, by specific hostility to his response found their committee. She 4 agreement. under a collective labor But unsympathetic, voting ten being to two 3 against judges, despite divergence her. contends that modern She this vote very adopted, original agree tainted with theories will enforce these vice of so, employer,
proceeding. quite employee, if this ments at the Even instance of specific party irrelevant. She is still a to a or union.5 Nor will enforcement contract.
Agreements Rights Anderson, ments, ger, 44 Harvard Law Law tre Dame ment of diana son, Rights Arising From American Labor Union Contracts, ysis Collective Bargaining No. August with bis bor Louis Law Journal gaining agreements Witmer, lisher shall p. mittee than wilfull the Publisher or his matter missal ploye 2 “Article VII. cause of bis “Article IV.' “1. “2. “1. otherwise discriminate Appendix On Agreements, Agreements following of the Present Review Legally Upon agreement. The Publisher shall not Law because of Law Contracts —Collective Agreements indemnity 15 arising Rights Appendix 12, 1937, its own length Bargaining Agreement, Oregon — Lawyer 413; Rice, 3 enforceability Collective Review Guild shall Agreements Journal dismissal pay activity Missouri Law gross misconduct, schedule: Hamilton, 651; 194; Fuchs, Enforceable Standing Under Discharge In from the 6 Guild choosing suma Respondent’s any employe Review Law * * * University American 1; Johnson, see Respondent’s of Unions and Indi- service, according 69; Pipin, authorized Legal Respondent’s Bargaining Collective in American Agreements, Review designate the Guild. Collective * * * Committee Courts, against any 572; to take ” money varying application Collective La- collective bar- Status Review Interests Law, cause other Bargaining Agreement, Industrial 229; agent any Collective Collective An Anal- Brief, Christen- discharge the Pub- Bargain- Enforce- Chicago 48 Yale up Exhibit Agree- 10 St. a dis- Brief, or be- 9 In- Law, 252; com- Ag- No- em- in p. 572, 575. Bargaining agreement agreement may Yale time, 1 other countries see Canadian Bar American Review 100 vey —Right Acts As Collective Contract tive Labor cago 335; The Present Status of Collec- Review 520 for ments, Benefit of Third ments, Labor bor ion. tion for —Contracts—Rights Rights ployee, viduals, forcement of Collective Quarterly Agreements Right Theories of ments, Labor Collective Quarterly 1221 (note); 5 “That Teller, See Agreement *9 of effect Damages Resulting 26 Illinois (note); Concerning Law is no bar to relief. (comment); Agreements, articles 10 North Law— 31 Columbia Law Review 1156 11 New York of Non-Member to Sue Distinguished 18 Damages by Under With Contracts Labor Agreement. University Law, Review 262 Journal is one at — §§ Agreements, Bargaining Agreements Marquette (note). Washington (note); given Labor employment under Nature, Enforcement Review ; Violated Union, cited be 44 Harvard Law Review Law Union-Employer Agree- Labour Disputes Labor Collective Carolina changed 166. to these 41 Yale Law Journal Cf. Party — Mackintosh, Legisla- Contracts —Contracts Law- of Nonunion Em- in Non-Member of Un- Review 922 will, 97 and (note); Validity Law Review Bargaining Agree- Deguit, by Employer footnote 4. Also 51 Harvard Law . 766. Por a sur- Law— Collective Labor Employee from Breach of University University Agreements, —Trade Minnesota Daw So -Collective La- and Collective at agreements or that Contracts, of Collective Labor Law long 220; Rice, Labor Law Employee’s Collective Employer and En- ' Review Unions of Chi- (note); as the future Agree- Under —Ac- craft such Law 251; Law 14 in in
271 strive thinking wishful consider and now by the ancient be barred 6 so tolerable. to make much of life “slavery” What doctrine. ably weakened has, assigned Congress frequently employ may, and individual given the effect ever subject matter appropriate are what it deemed contracts, agreements collective ment preliminary where category. So tribunals special administrative to be in a held equity inadequate, listed damages are are money Many decision. such instances their terms. to. opinion just will dissenting enforce in referred exclusive, such These tribunals be discharged assume, then, that the canWe Commission the Interstate Commerce her may, if she establishes employee here Commission, the Federal Communications money- facts, damages, if she get either concurrent, in- as in the they may be further minded, job her We can back. Appeals, the of the Board of Tax stances as may be with done assume that this Commission, con- and in the Trade Federal help all ordained courts sistance those majority principal case. The tention of only those and not of her fellow-citizens must, concede, legis- they such conception of nebulous working within the implication only and assignment right and lative this commerce. With interstate employee spirit in rather than in the letter courts neither the these bar, Labor Re paraphrased nor the National argument may at Their the case law. behalf, are satisfied. in her lations bargaining defini- thus. Collective naturally, not, courts that They do criticize tion, device of the fundamental prior to their own existed for centuries have its members suffi- Discharging unionism. merely pref express a They existence. destroy any quantities will union. cient upon initial adminis for and insist erence juris- Erg'o Labor Board should say be initial remedies. One has trative prevent discharges. The diction to such they themselves find for enforcement cause plain sequitur seems to the writer. non ’ very Nor is same courts.7 these discharge in- by unredressed Destruction theory and in his critical writer turn the redress Destruction because evitable. had practice quasi-judicial bodies. He another, and not is incon- in one form give it some consideration an occasion meaning If with the the word. sistent recently opinion dissenting filed.8 other there, remedy is a labor union is im- 9 them, disparage prefer others them. Some is so whether remedial pervious. This hearing process starts room Wash- preference and in- The trouble ington Jersey in a room in New court being instance in its but another lies sistence 171, 200-201; Eq- Harvard Law Review and the craft continues to work uity: Specific effect, Performance of Collective his is in he is entitled to Bargaining Pipin, rights Contract At En- Suit contract.” Union, Quarterly Rights Trade 16 Law Bar- Cornell Under Collective forcement gaining Agreements, (note); Agree- Bargaining University 96 Collective Chi- 6 Seniority Clause, cago ments: The 41 Colum- Review Law Ky. Gregg (comment). Starks, Law bia Review 304 Ma- See Of. Organized Ry., son, Party 459; Piercy & Labor as v. Louisville Plaintiff N. S.W. Injunction Cases, Ky. 33 A.L.R. 30 Columbia 248 S.W. Law McGregor Ry., 322; & N. Review 466. v. Louisville agreements Ky. 696, “The into which 51 S.W.2d bar- gaining crystallizes adequately in “If union has not must be equity pre only gira enforced the courts not a court voke the aid of parties violation of effect to a contract the intent of the the unlawful and in- vent bar, dealing them, fair the case at then sure between but as exists also such force, judi- to avoid loses most of its the inevitable a contract alternative to' such bargaining sanction, costly lockouts, cial of collective are strikes and and the employer, employee, narrowed, the economic benefits to aline to and consum- community er.” Theories of Enforcement Col- great Agreements, lective Labor extent lost.” Goldman Yale v. Co Law to hen, (comment). App.Div. 631, 634, Journal 227 N.Y.S. 160(e). *10 311, § 29 U.S.C.A. 314. Witmer, 8 B., Cir., Burk Brothers v. N. L. R. 3 Collective Labor also See February 686, Courts, 3, Agreements F.2d filed 1941. Yale Law 48 117 Report Attorney 9 seq.; 194, Rice, Final of Gener 201 et Collective Journal Agreements Law, Bargaining on Administrative Committee Proce In al’s American Printing ; dure, Simp- 572, United States Government Law 44 Harvard Review 607 Office, Fifty Equity, son, 1941. Years of 50 American 272 up wear black robes or manner op- whether the hearers and including the chief erating business suits. officer designated of carrier disputes; but, handle such failing to reach patronizing There something seems me adjustment manner, an in disputes particular help in this effort to out the Con- by petition referred parties of the gress. body sign That has shown no of party or appropriate either division failing comprehend be- distinction Adjustment a state- Board with full tween statute which a creates new ment facts and all supporting data by “representatives of bargaining of one’s bearing upon disputes.” 45 U.S.C.A. § choosing” own and a statute affords 153(i).10 a pri- new additional tribunal mary adjudication rights legislative bodies, of one oldest Other both in this coun- 11 try abroad,12 known to the common law —the equally spe- have been Act, Railway hand, contract So in York, Labor cific. On other in New Congress disputes declared: “The be- where State grant Labor power tween group comparable to the National Labor Board,13 and a growing carrier or carriers out of court has held that the Board * * * grievances interpretation given out of the “was any in- application agreements terpret, concerning rates enforce or abrogate contract rules, pay, conditions, or working in- parties, particularly made two where cluding unadjusted pending cases on it is not con- party to the [the Board] 14 21, 1934, shall be handled in usual tract.”
June Robbins & putes iation and Arbitration of and Arbitration Law Journal 147. Canada: Australia: trial tions Russell, Sweden: pp. Government, of Industrial 111.10, The State 1937 1938 Wisconsin Law Review Rice, vard Law Review 722 8, 9, Review Disputes nal 1934, Administrative Journal dustrial Journal Railroad 633; of Collective 12 American Act omy 53; University 11 10 Law & 1939, Legal Canada, 139-148; Nicholis, Great 322; Minnesota Acts of Chamberlain, Labor Act ; in the Commonwealth of 11 Disputes 29 Wisconsin Labor Relations Act in Ellengwood, 1926, 111.11. 1071, 567; Magruder, The Commonwealth Arbitration, c. (a) and Collective Influence Illinois Canada 403; Garrison, Adjustment Gause & Childs, Railroad Britain: Heekseher, Labor Evatt, Contemporary Bargaining, Intervention in 36 Disputes 1086 § Arbitration Journal 375. Chicago Bar Association Journal and Federal Decision, Journal of Political Econ- Compare, Agency, 111.06 Act, 1928, 2 12 Law (1924); The Control of Labor Rela Upon This Kightlinger, et Sells, The Labor (a); 1 Collective Railway Board: Review 789 (note). seq.; Mayper, Mediation, 1939, Bargaining Law Review Arbitration Jour- (2c), 50 Harvard Law A 12 Indiana Law Railway Wisconsin Acts 46 Yale Problems 321. Fisher, Great Acts, The National Legislation Teller, Half Development Labour Dis Democracy; c. 111.06 Mackintosh, Conciliation Legislation, Settlement Labor A Australia, 440, Australia Bargain- Disputes 51 Har- Britain, Century Concil Unique Indus Labor (note). Labor 529; (1F), Rail- 229; 451; §§ Law In- 2, idated Ed. 126. App.Div. 501, intrastate up Confectionery follows vision of labor tions fective merce. The state S. Australia, Labor seq.) Colorado Relation view mann, ments of French the Social Sciences sota Law sota Law Review Illinois Law Review 396. view 29. Regulation lands: Studies Under German ment of bitration Disputes tion dustrial Hagander, 197, 222, United in “The New York Journal respect Act France: Sobernheim & 1025; * * * provides Edison Co. v. Law, Consol.Laws, Sweden, Philippines, Collective Labor closely Compulsory July 1, 1937; the Labor Court Republic, Labor, Report Laws Journal Relations (Laws Studies, enterprises Review National Labor Relations Act Baking Compare, of Labor France, to interstate or 926; Riesenfeld, 14 N.Y.S.2d Workers’ the national act.” Swedish Labor relations Democracy of Great 24 American Bar Associa- New 59 S.Ct. 411; Robbins, Labor act, 10 407. Series 1937, Chapter 443, United States 2 Vol. No. Co., Industrial Arbitration 921; 37 Labor in Zealand, Arbitration Journal Wisconsin Law Re- Mitchell, similar State Labor Rela Unions and Labor with added Michigan Article 20 Inc. Union, etc., Laws Britain, Canada, Sweden Law, Recent Germany: complete super Comm’n c. C., Malick, Board, (University Philippine employers foreign Court, Sweden, Rothschild, Studies in 23 1). Under Industrial Bakery Law Re- Jurisdic- Develop- Depart- Consol details, (193S); Minne- 305 U. Minne- 700 et Labor 83 L. 1 Ar- com Leh- In- set ef Is- 35 & *11 Inc., Fund, Century half of the Twentieth legislative construc- form A common prior following recommendation: finding in the and be found is to of statutes tion legisla- proceedings subsequent agree- think it is that such “We desirable inter- to handiwork is he body whose tive preted. ments, freely employers arrived at between the National anent proceedings should, employees, parties and their if the room no Act leave Labor desire, regis- to the so and after authority on labor leading A doubt. by appropriate tration ¡governmental relations, Professor industrial problems and agency, by giving he sanctioned to such Har- a Wolf, of note writer appropriate power agency enforce * * * have observed: vard Law Review agreements. bar- step making collective “The first provide “We recommend that the act agreements legally gaining Commission, permanent enforceable a Federal Labor violation of would be declare independent governmental agency terms, by either of its agreement, or appointed by whose- members shall constitute an party would thereto President with the advice and consent of by practice. This could be done Senate, and which shall have follow- * * * paragraph that effect to simply adding a power functions National Labor Relations 8 of the appropriate regulations regis- rules and violation, or threatened violation Act. A ter, joint request parties, at the of the machinery of enforce- then set the would agreements trade definite enforce upon appeal operation by either ment in freely by employers duration entered into party. employees.” Hearings on S. 1958, 3, of, pp. (italics ours). Part. 720-721 machinery might well consist “Such comparable agency first a federal not, however, This recommendation did Board. National Labor Relations Unless Furthermore, find its into the Act. arising of the the additional duties out although Congress various members place agreements enforceability would seemed have been dissatisfied with one already great too on an over- burden another of the or as take the form of statute body, and understaffed there is much worked to enacted, finally displeasure such did not making be said Board itself the repeating by way of superstructure templated.” machinery here con- proposals anything amendment those like Wolf, Enforcement of offered Davis.16 Mr. The conclusion Agreements: Proposal, Collective Labor A that, place, seems irresistible in the first 273, Contemporary 5 Law ci Problems 282 Congress upon frowned the Twentieth (italics ours). Century theory Fund’s “It should be that the Wag- borne mind and, place, nothing Board subsequently the second predicated upon assumption ner Act was transpired change the frown agreements that collective adequately were into a smile. protected by existing judicial remedies. Analogous principle operation and in Administrative agree- of these enforcement legislative construction executive con ments, although a reasonable possibility, is struction. The writer has never favored yet receiving serious consideration the extreme views doctrine held present Congress.” Proposed 17 However, courts. some he has felt it Wagner Amendments to the vard Har- be used a marker should rather than as 970, 29, Law Review footnote or, metaphor, channel in a different a a wise (note) (1939) (italics ours). precedent binding rather than as a Hearings In the on authority. the National Although judicial notice Relations Board before the Committee to me indicates no available other instance Education and Labor United States of redress a Labor Board after a col 1935, Senate in the spring of we find agreement, my lective informa Mr. William Davis course, H. submitted on be- geographically limited. interestingly Now, enough, 1550, April Chairman S. S. S. Hearings Defense Mediation (included Board and then Before the Special Part, Chairman of a p. Committee on the 467). on the Senate above bills. Government and Labor -of the Twentieth Commissioner Corp., Textile Mills Securi- Century Fund, Inc., New Cir., York. ties 72. Cf. F.2d 16 Report of Feller, Regulations the National Labor Rela Addendum to the tions Board to the Senate Problem, Committee on 54 Harvard Law Review Upon Education and Labor S. S. *12 says pro- it it then Therefore, they bargain, shall and departmental administra or every agreements vides that of cannot one those practice technical sense tive shall filed Mediation proper, never be with the National seem relied on. It does Board.” theless, following quotations William M. Leiserson.19 to submit the wise capacity and markers predecessors) (or the Board Counsel for precedents. Adjustment “The National Railroad Board, amendment created Members the Board 1926, is, so far Railway Labor Act of the accomplish “All that the Act intends to tribunal, know, only I the administrative to see regard is to collective state, set has ever been federal not tactics of employer may that the ren- up country in this the him- and bad faith so conduct obstruction dering decisions judicially enforceable impossible and negotiations self as to make interpreta- arising controversies out of thereby defeat the consummation of an Lloyd tion of contracts.” K. Garrison20 Edwin agreement.” S. Smith.18 ours). (italics “Yes; so, I think that answer does but signed “A contract is then the end—all exactly applicable mean that is not the same it process, Labor far as the National so just way, re- going and I was concerned; regarding Relations Act is Burke’s mark in connection with Senator National the observance contracts the provision question about the mediation Board, the act Labor Relations to which Act, question Railway that the why Labor standards, application of its entrusts that me ha.s often been asked practice responsibility. It is ‘the has no My applied ? answer to the other industries procedure bargaining’ that of collective Act usually this: The Labor Relations is board’s concern. formation of theory of proceeds on the novel writer. the contract is the culmination bargaining. says It shall not dis- point legislative At that against organizations or inter- criminate over, process in labor relations is them, says employers it fere with and then process application and inter- executive collectively. bargain shall not refuse pretation begins.” (ital- William G. Rice authority Labor That where ours). ics ends, at em- bringing Relations Board “The Act does not deal with enforce- negative- ployer together, but all, against either agreements ment at ly. employer does not re- The moment the employer, employee. against It collectively, fuse to Board matter leaves the law on this where it stood words, it through. novel, In other is like the Magruder22 (italics before.” Calvert get to- when the hero heroine ours). Well, they gether happily live ever after. true, perfectly never “It is there has anyone iswho married knows that is not it, that the does any doubt about law story. Railway starts Act all field of deal with the somewhat limited where Relations Act leaves the Labor off is, relations, it is not a mediation provision protecting with the board, or an arbitration concilia- board tion just Railway employees. The Act starts up protect, It agency. was set way, positively. says the other shall statute, rights, certain the terms of duty every fus be the carrier and officers simply stated, very which were all the agents and every and of to exert bargaining, and right of collective as an agree- effort make and maintain thereto, self-organiza- incident agree- collective-bargaining That is
ments.
tion.
that,
duty
ments. It is their
to do
exert
“Now, that
all that the
every
stating
it.
Instead
function
effort
do
Fahy.23
bargain,
is.” Charles
they shall not refuse to
negatively,
Education and
to Amend
Act, p.
justment
Cong.,
tive
20 Garrison,
Hearings,
Hearings
Agency, 46 Yale
S.
1st
1607.
Board:
Sess.,
supra, p.
Before the Committee on
S.
National Labor
Labor,
A
National Railroad Ad-
S.
Law
Unique
U. S.
998.
Journal
S.
Senate,
Administra-
S.
Bills
76th
S.
lective
Influence
693-694.
view
lations
Contracts Under
22 Magruder, A Half
Hearings,
Rice, The
Bargaining,
Upon
supra, pp.
Legal
the National Labor Re-
Michigan
50 Harvard
Development
Significance
Century
444-445.
Law Review
Law
of Labor
of Col
Legal
Re
*13
hardly necessary
point
counsel
It seems
to
out
argument learned
second
At the
our
rhetoric”
that
that the “useful
in stat
rather intimated
is used
for the Board
oversight.
any way
that
an
ute
does
concern itself in
been due to
decision had
first
scarcely,
unconscious
a Labor Board
can
suggested that we had been
there
He
fore,
which
to
phrase
conferring
157
have much
do with
last
Section
of
“ * * *
of col
If
enough,
thereon.
this were not
I
reads
may
shop-worn
aid
observe that the
bargaining or other mutual
also
rule
lective
frequent
ejusdem
applies here,
of
generis
protection”.24 That a court whose
as elsewhere.
27
A writer
duty
generally,
it is to enforce the Act
Yale Law Journal
“ * * *
applies
specifically.
says:
it
He
of
its
should
unaware
However,
reading reveals, however,
unlikely.
not over A second
we
seems
did
that
thought
protects
then
quoted
the Section
words. We
the line
union
look
appears
opinion
only
activities
organizational
majority
from tile
defensive
now,
thing
agree
only
tlie
activities—concerted activities ‘for
aid or
to be
on which we
mutual
phrase
protection’.
absolutely “nothing
‘protection’
has
The word
that the
this,
They
enough
the case”.
via the should be
establish
do
derive
but the
7(a)
In conclusion is reinforced by
of the National
famous
use
the word
‘other’,
Recovery
pre
Act25
refers back to
dustrial
from the
‘collective bar
2
gaining’. By
principles
amble of Section of the Norris-LaGuardia
familiar
of statu
construction,
Greene,
tory
therefore,
Frankfurter and
dis
Act.26
‘other’ limits
preamble,
say:
that
what follows
activities
cussing
have this to
gen
the same
eral nature
as collective bargaining.”
pronouncement
recognizes
“This
the Ward, “Discrimination” Under the National
of freedom
in the ab-
futility
contract
Labor Relations
48 Yale Law Journal
of the freedom That a
sence
single
contract.
1152, 1161.
enterprise
increasingly
may, and
does,
language goes beyond
the em-
If this
opportunity
control the
a “rhetoric”
thousands,
through meaning,
possibly
it is
ployment
and that
found in the views
cooperative
Congressional opponent
of a
large
tactics
units
of these
original
says:
practical
industry
dominance of a whole
Act. He
“Under
provided
it is
may.
they may
be achieved—these are facts
our
engage in con-
premise
major
life which
certed
economic
form the
activities
mutual aid—and this
proposed legislation.
is not
employer’s
restricted
an
own em-
agitators
ployees
anywhere
but
from
formula,
expression
policy
this
“As
may thrust
themselves into a man’s busi-
courts,
Many
including
from novel.
is far
ness
interfere with
his employees and
Supreme
itself,
repeatedly
Court
have
try
get
them dissatisfied and
demand
judicial
given
The need
benediction.
they
against
unionize
Cong.
will.” 79
arises,
seen,
assertion
legislative
as we
Rec.,
9,
9701,
p.
Ft.
Cong.,
74th
1st Sess.
the fact that
courts
from
action the
policy
more in
this
have honored
the breach
The writer
dissent
ends where he
legisla-
presents
began.
than
the observance.
The new
no
case
issue of labor’s
susceptible rights
tive exordium doubtless also
or relations. This country’s policy
evaporation.
negotiation
judicial
setting
But
favored the
rather than the
28
compulsion
agreements.
It is intended
section
rhetoric.
A wise Con
useful
explicit
has,
gress
by Wagner Act,
an
avowal of the
considerations
freed that
and,
Congresssional
moving
negotiation
there-
action
from the
unfairness which
fore,
loyal
controlling any
app’ication of
from the difference in
posi
arise
tion
economic
parties.
policy by
courts.” Frankfur-
assign
national
ter and
To
Greene,
Injunction, pp.
their
protects
enforcement
the same agency that
(italics
paragraph ours).
step
second
their formation is
211-212
toward
compulsory
industrial
U.S.C.A. 157.
arbitration
24 29
see
Packing
195,
25
Wolff
Stat.
declared unconstitution
Co. v. Court of
48
Industrial
Poultry Corp.
522,
Relations,
630,
United
43
in Schechter
262 U.S.
al
S.Ct.
67
837,
1103,
1280;
States,
Id.,
A.L.R.
U.S.
L.
L.Ed.
S.Ct.
U.
785;
Nos. Appeals, Third Circuit. Court
Circuit
April 24, 1941.