*1 requires that formity decisions those RELATIONS with NATIONAL LABOR BOARD RADIO TELE- standpoint of the v. MACKAY I review case from the CO. GRAPH Re- validity Wagner-Connery Labor 8137. No. 151-166). I re- lations U.S.C.A. §§ written for opinions fer to heretofore Appeals, Circuit. Ninth Court of Circuit facts. statement of Oct. 1937. persons say five here that the Suffice to pay re-employed back were with ordered sixty-nine strike; members of that of sixty-four re-em- were union who struck places had been ployed. remaining five respondent filled other Angeles Los who had from been transferred fail- given for and New York. Reason persons whom the re-employ ure to the five employment Board ordered restored to Respondent that vacanies filled. were persons these were not contended that appli- employed delayed their they because their cations for until after filled; places that four of them had been placed upon a list eleven whose were upon by passed instatement was to be York; respondent officers in New than other rather reason re-employed, was because seven were Board, delay applying. how- of their ever, found, opinion, and so was of respondent manipulated list of required apply rein- eleven for who were for so fixed the time statement and application thus these individuals were deprived privilege of reinstatement opinion, F.(2d) former see 611. For of the union. accorded other members is stated The conclusion of the Board Counsel, Fahy, Charles Gen. Robert B. portion findings: their following Watts, Counsel, Norman I. Associate Gen. Somers, Senior, Atty., Litigation and Thom- clear “The inference seems Surrey, Attys., Stanley as I. Emerson and S. perceived respondent’s readily officials C., Washington, petitioner. all of D. provided them circumstances Cal., Myers, Angeles, Louis W. of Los respondent opportunity to rid excellent City, Merrick, New York Harold just which had of the Local of the leaders J. Cal., Mitchell, Angeles, Homer I. of Los costly pass through a caused it to respondent. op- the most it did fail to make advantage taking portunity. in thus And GARRECHT, WILBUR, Before opportunity com- MATHEWS, Judges. Circuit * * * of the act. mitted violation WILBUR, Judge. operators Circuit the four “We conclude placed (of the list My this case adhere to the associates in leadership union eleven) of their they expressed and the conclusions views turn to activity therefore the effect hearing. first These they reached on actions of men of that list reported opinions F.(2d) in 87 631 and are * * * named thereon. postpone induced to four were Supreme Court “These applications because of reasonable National Labor Relations Board permitted they would not S.Ct. belief that Corp., 301 planted that belief was return to work 108 A.L.R. by conduct cases, consti- in their companion minds sustain of their union against the as- directed them because tutionality most case, pects in this activities.” attack con- under
762 the ployees, pay wages for respondent’s to re and to them refusal As to the employees period they and Phelps, employee, the when were not employ fifth D. the P. expla services, clearly beyond the accept the no rendered was Board likewise refused to power be Board.” Phelps reinstated the nation that was not application his made cause at the he arrived the I have view of conclusion filled, and con position already it proposition, is concerning this second the of the cluded refusal unnecessary or to exer the first to consider 8, subdivisions was a violation of section court in discretionary power of the cise the 158 (1) (3) (29 and of the act U.S.C.A. § Compare Federal its enforcement order. (1, 3). Co., 260 U.S. Trade Comm. v. Pub. Curtis 408; 210, 213, In 67 findings of fact S.Ct. “Concluding In its Comm., Trade law,” ternational Fed. Shoe Co. v. Board states: conclusions of the 431. employ- refusing reinstate to By “2. statutory power of question Loudermilk, Bash and B. L. K. P. ment A. Phelps 8,1935 L. N. the Board I will now consider: on October Rone D. there- and G. Palmer on October E. on that respondent’s argument respec- employees the by discharging said question is as follows: days, discharges, tive each said predicated is Board’s decision “The regard in did discriminate assumption that these throughout thereby has dis- tenure of ‘discharged’ re wrongfully men were organiza- couraged membership in the labor ‘find’ purports to as spondent. The Board Telegraph- known as American Radio ‘discharged’ on Oc they fact that were so Association, Local ists’ San Francisco No. pur This 9th, respectively. tober 8th purely conclusion of law ported ‘finding’ is paragraph 2 in By “3. the acts described predicated clearly It is erroneous. and is above, them, respondent has and each of 2(3) section solely upon the in definition and coerced its interfered restrained 152(3)] defining 29 U.S.C.A. § [of guar- rights employees in the exercise of the indi ‘include word National Labor anteed in section as a conse vidual work has ceased whose Relations Act U.S.C.A. § 157].” [29 with, any cur quence or in connection ’'* * * dispute. finds that is The Board further It conced rent labor engaged an unfair spondent Congress enacting in a statute ed that within practice affecting commerce definition to a word used therein attach and section must be fit, section subd. ac and such definition it sees purpose National Labor Re- cepted subds. 6 and for the as conclusive 152(6, 7), equally (29 It is clear interpreting lations Act that statute. U.S.C.A. §§ has no ef statutory (3). definition whatsoever, except an aid to the as fect of the decision In view interpretation particular statute. Relations Board in National Labor Court power, by Obviously, Congress supra, Corp., and com- fiat, a fact or legislative mere create cases, Wagner panion holding that Act change fact. Constitution, only is not in conflict with the remain points to be considered. The of this two “The obvious definition employees, point provide not the order of first is whether or in the statute requiring regarded Board while shall be as if out arbitrary, fact, former “is ca- still were for the five unjust pricious, bargaining. and unreasonable that purposes it o‘fcollective Without provision Act, reason should be annulled for this alone.” such a collective power provisions utterly concerns the fail bargaining This would modify aside in whole or good court “to or set of a strike. There is no the event part suppose Congress, by order of the Board.” Section creating reason to definition, purposes (e), 160(e). solely subd. for the statute, question goes attempted thereby the statutory second intended or relationship re-employ- Board to order the to create the employees. relationship of the five ment former where no such exists respond- Clearly, beyond proposition is thus stated this would be fact. supposed if constitutionally power, ent is not that Con- : “Even Act were to be valid, requiring gress something so obvious- attempting the order n spondent reemploy five former em- ly futile. ac- ‘take such affirmative em- relationship “The tion, contract, including rests ployee is a status pay, will effectuate contract, with or without back ex- only by can be created submitted policies Act.’ It of this implied. our American pressed or Under *3 provision of this for ‘reinstatement’ that body power Constitution, legislative no pay employees be with without back must or parties two create between contract a employ- applying only construed as to such em- When an without the assent of both. discharged. wrongfully, ees as have been So ployee quits out and job and walks his construed, entirely be reasonable would work, result is eithér the fuses to return to valid). An (assuming the Act otherwise be employment his contract of that he breaches employee wrongfully dis- has been who con- is a term he it. If it or that terminates right to charged has treat his contract the expired, he not tract and the term has employment subsisting, and of as still op- it, at his employer, the breaches —and thereunder, his less what wages recover tion, a breach as may treat such' elect to may he have in the meantime. earned termination thereof. may is legal right by enforced an a be will,.it is at is termi- “If it contract action law.” employee in act by nated the mere case, the of .quitting. either contract In In this the dealing with employment the has been terminated and previous hearing, I said: longer employee status of might disposed “The case be of the exists. theory by the that advanced case, found the “The as facts of individuals who ordered restored the were Board, employ- conclusively that show the positions by the Board had them- these men were termi- ment contracts of five selves, act, voluntary by their ceased to be 5th, respectively, 4th and nated on October employees; consequently, the act does quit- men in voluntary action the the of apply the act the not authorized fact, of jobs. In none these men ting their does any employee respondent at an has been of regulate employ- the the or Therefore, subsequent 5th.. to October interpreted, ment of laborers. Thus act the conclusion, ‘dis- men these the applies only situation where to a the .em- merely contrary to' evi- charged’,’ is employee ployer discharged against ; contrary facts found dence it is to the as the will of the and his reinstate- by the Board itself. consequence. ment is directed in But ‘ upon theory order herein is be- “It follows base our conclusion Act, power require ignore of the Board under the yond the case at bar would us to constitutionally assuming to be act even declarations in the itself that requires to offer ‘full It on a strike be still em- valid. are to considered as ployees each these men the act reinstatement’ to of of which within pay wages, each full amount of dur- used declares term as in the period from to the ing ‘any October individual whose act to include ‘reinstatement,’ consequence of which of such offer has ceased as a or in con- date earned if had em- current any have he nection he would practice, rendering full service to ployed because of period. spondent throughout (This regular has not other who obtained case, by substantially employment.’ in each equivalent reduced Sec- amount had em- man earned other subd. of U.S.C.A. amount the § relatively period ployments, during 152(3). Consequently, brief the Board was act- power Congress sought within ing October and December well between it, hearing. Under our decision must the date of to vest based act, upon ground can be no reduction on broad accord- Board’s there order terms, earnings plain ing these men dur- unconstitutional account of the of period subsequent Fifth far to December violative of the Amendment so ing the attempts force large earnings those as it however commerce engaged in interstate have been. engaged employment with so who those predicated evidently its ac “The Board voluntarily terminated contract have upon misinterpretation tion in behalf employment. portion 10(c) of section [of requiring the purports “The order 160(c)] 29 U.S.C.A. § beyond the individuals named is authorize the Board its order to the five 76á versy
power
respect
appropriate
and cannot be en-
free and
right
exercise
charge.
forced.”
selection and dis-
* * *
decisions of the
none of the
requirement
Congress
“The
involving
Court
restoration to
ser-
employeesdischarged
vice of
has the
order a reinstatement
violation
provisions
gone
re
that act [Railway
court
quiring
far as to sustain
order
Act,
persons
reemployment
seq.]
et
thus
employment by
imposed
sanction
judicial
gress
strik
the enforcement
terminated their
Ry.
ing.
of
v. Brotherhood
decree.
do
Texas
N. O.
We
not doubt that
Con-
Clerks,
Ry.
impose
could
a like sanction- for
S. S.
1034;
Rela
regulation.
National Labor
enforcement of
valid
*4
Corp.,
fact
Laughlin
tions
that in
case it
judicial
Board v.
&
S.
the one
was a
Jones
cases,
sanction,
one,
companion
supra.
legislative
and
In the latter
in the other a
and
is
determining
Hughes, speaking
case
court,
for the
not an essential
Chief
difference in
Justice
propriety.”
its
said:
compel agreements
previous hearing
put
not
On the
my
“The act
I
does
deci
employers
employees.
flatly upon
sion
question;
between
and
It does
the constitutional
compel any
namely,
power
agreement
not
does
m Congress
whatever. It
want
to
compel
prevent
employer
to
refusing
employer
‘from
to
not
make a contract
employment.
assumed,
hiring
doing
and
indi
make
viduals on whatever terms’ the
In so
I
a collective
con
trary
employer
respondent,
“employee”
to
contention of the
‘may
action determine.’ The
the definition of the word
unilateral
provides
Wagner
applied
expressly
9(a)
in section
in
Act
act
the
contained
employee
to an
[of
any
clearly does,
159(a)]
29
indi
on
as it
U.S.C.A.
and
§
employee
group
said
employees
Congress
a
intent
vidual
or
evident
is to
permit
right
any
present
shall
have
at
time to
order
of reinstatement of such
theory
grievances
employer.
employees
pay.
The
to their
with back
Since our former
opportunity
nego
that free
for
decision in this case the Circuit
act is
Court of
Appeals
representatives of
tiation with accredited
for the Fourth
Jeffery-
Circuit in
employees
likely
promote
is
to
industrial DeWitt Insulator Co. v. National Labor
peace
bring
Board,
adjustments
134,
and
about the
Relations
91 F.(2d)
decided
16,
agreements
1937,
and
in
pointed
which the act
itself does
so held.
As
out
June
compel.
attempt
Hughes, supra,
not
to
As we
in
speaking
said Texas
Chief Justice
Clerks,
Court,
Railway
& N.
O. R. Co. v.
& S. S.
in National Labor
supra,
Railway
repeated
Virginian
and
Laughlin
Relations
Board v.
Steel
Jones
System
Corp.,
require
40
Co. v.
Federation No.
U.S.
the act does not
[300
did,
57
If it
the cases
enter into a contract.
it would
789]
States,
doubt,
subject,
Adair
S. be
v. United
U.S.
to the constitutional
objections
Ct.
Coppage
Ann.Cas.
declared
the earlier cases
Kansas,
applicable
which
(Adair
v.
35 S.Ct.
he refers
v.
L.R.A.1915C,
S., supra,
Kansas,
Coppage
supra),
are U.
v.
inapplicable
legislation of this
which
Congress
character.
hold in effect that
cannot
interfere
act does not
with the normal define the
a contract
terms of
between em
right
ployer
require
employee,
exercise
nor
them
or
employees
discharge
select
them. enter into a
word
contract. The
“reinstate
not,
employer may
under cover
10(c)
of that ment”
of Wagner
used
section
right,
or coerce
160(c)
intimidate
must
be con
respect
self-organization
strued
light
limi
constitutional
and,
representation,
hand,
powers
the other
Congress
the tation
authority
board is not entitled to make its
permit
would
“reinstatement” of
pretext
discharged
right
wrongfully
(National
interference with the
Re
a
discharge
other
right
Corp.,
when that
is exercised for
lations Board
would, my opinion
reasons
intimidation
a
supra)
than
but
forbid
subject
requirement
“reemployment”;
is,
coercion.
true
is
investigation
Moreover,
opportunity
employment.
with full
to new contract of
pointed
show
It would
respondent
the facts.
seem that when as
out
the ordi
employers freely recognize
right
nary
of their
the word
“reinstate”
organizations
place
their own
again
possession,
and “to
or in á for
right
representation
their unrestricted
mer state:
to restore to a state from which
there will
less
removed,
be much
occasion for contro-
again.”
one
to instate
[chapter]
explicitly states
less the Act
Dictionary.
Webster’s International
any
otherwise,
shall
individual
include
therefore
order
must
of “reinstatement”
conséquence
whose
has ceased as
at the
“employee”
refer
status
labor
any
or
current
which,
in connection
practice
time of
labor
the unfair
prac-
unfair labor
or
bar,
the strike.
the case
occurred after
at
tice,
any other
has not obtained
who
employee
status
to his
To reinstate such an
regular
substantially equivalent em-
guilty
at
the time
ployment,
any indi-
shall
but
not include
would be to
laborer,
employed
agricultural
vidual
as an
col
recognize
right to
his
any family
or
or
in the domestic service of
lective
It is not
bargaining.
contended
person
home,
his
or
individual em-
at
right
them. I conclude
was denied
ployed
parent
spouse.”
by his
or
(section 10(c) properly
under the statute
light
construed in the
of the Constitution
findings are clear to
The evidence and
to order “reinstate
of the Board
dispute culminating
effect that
employee
ment”
of an
does
authorize
protract-
m
a strike
as a climax
occurred
re-employ
order
requiring the
unsatisfactory negotiations.
ed and
otherwise,
salary
wage,
his former
or
Following
excerpts
findings
are
from the
striking
who
of fact made
the Board:
his
voluntarily
terminated
had thus
*5
September
“In
Francisco
San
right
wages
al
salary
to
at the time the
members, Loudermilk,
Local sent one of its
leged
was committed
to
to New York for‘about a month
aid in the
by
respondent.
organization
Mackay opera-
ARTA
of the
I
in the conclusion of
therefore concur
city
attempt
prevent
tors in that
to
Judge
application
be
MATHEWS
undermining of
wage
the San Francisco
denied.
payment
by
scale
of a lower scale New
February
York.
In
1935 an administrative
MATHEWS,
Judge.
Circuit
appointed
Committee of the Local was
expressed my
I
views
adhere to the
contacting
opera-
all of the
separate opinion
January
filed
Mackay system,
tors in
ARTA
members
.
F.(2d) 631
non-members,
to
their views
ascertain
wages
working,
conditions. A
lengthy questionnaire which covered these
GARRECHT,
Judge
Circuit
(dissent
detail
Mackay
matters in
was sent to the
ing).
operators.
receipt
compila-
After the
view
of the
material,
tion
of this
members
the Local
Court in National Labor
Board
Relations
prepared
general agreement concerning
Corp.,
Steel
wages
working
conditions for the. entire
A.L.R.
point
point system.
Mackay
agree-
to
1352, I
grant
feel
court should
all
ment was sent to
ARTA
locals
petition
of the Board in
this case
by
presented
and ratified
them.
It was then
I
dissent
other holding.
from
officers
the national
of ARTA to the
To what
said
was
me in the first Mackay officials in New York in
June
hearing,
F.(2d)
632-641,
see 87
fol-
They requested
given
and were
more time
lowing pertinent
considerations
be
agreement
in which
consider the
to
in view
added.
contemplated
bankruptcy proceedings
The order of the Board
rein-
requiring
might
Mackay companies.
affect
statement
five striking
of the
again presented
agreement
Sep-
payment
to them of
tember 1935. The national officers of ART-
wages
period subsequent
for the
fail-
requested
A had
that the Local send O. M.
ure
fully
them
justified
reinstate
un- Salisbury New York to
them in
assist
der the act.
negotiations
since
too
familiar
If
ceased work
point
on October
point
Salisbury,
with
conditions.
consequence
1935 “as a
or in connec-
point
point
who was chairman of the
divi-
with, any
dispute,” they
current
operator employed
sion of the Local and an
retained their
office,
status
purpose.
the HB
went East for this
spondent
2(3)
during
absence,
the strike. Section
given a
He was
leave
the rea-
152(3)
the act
trip
is as fol-
being clearly
son for
understood
lows: “The term
respondent.
time,
shall include the
At
the same
at a
any employee,
shall not be
prior
limited
meeting
Septem-
of the Local held
particular employer,
the employees
un-
ber
the members
voted
favor
necessary
unsatisfactory
ble
in view of the
state
action became
strike
if
negotiations. Salisbury telephoned the
.support
demands.
point
point
Local and a
group
meeting of
pre-
had
operators
also
marine
“The
evening.
strike
was held
system
Mackay companies with
sented
midnight,
set for
12 o’clock
San
13, Salisbury
September
agreement. On
time,
Francisco
was to
nation-wide
place,
in his
Bash,
chairman
who was
wired
Mackay system.
over the
A
com-
Corporation of Amer-
the Radio
while
appointed
mittee lor
San Francisco was
agreement,
signed such a marine
ica had
HB
meeting.
midnight
At
of the
recommending
refused and was
Mackay had
duty
office force then
went on
steam-
operators
non-ARTA marine
exception
charge.”
with the
the officialin
special
suggested a
ship companies. He
on the two
joint action
meeting
consider
findings
supported
being
These
evi-
Rathborne, Secretary of the
agreements.
(section
dence are
conclusive.
Russ,
was marine su-
Local, Bash and
(e),
provides: “The
160(e)
29 U.S.C.A. §
respondent,
perintendent
conferred
facts,
findings
if
as to
of recommend-
morning
on the
supported by evidence, shall be conclusive.”
operators
but reached
ing non-ARTA
Na-
National
Relations Board v.
See
Stone,
vice-president
agreement.
the new
Shipping
tional New
Co.
Packing
York
operations
charge
in
happened
(C.C.A.)
most tends to effectuate its construed, clearly constitutional said, beyond unless a reasonable it can be doubt, an incident that the addition of such to bly promote conceiva status cannot interstate com the welfare of 213, Saunders, Ogden merce. 12 Wheat. 606; Cases, Sinking Fund 700, 718, 496; Lindsley v. U.S. 25 L.Ed. 61, 78, Co., Natural Carbonic Gas 31 S.Ct. 220 U.S. Ann.Cas.1912C, 55 L.Ed. 160; City Mayor Williams v. Council Baltimore, 36, 42, 53 S.Ct. 1015; Butler, 297 U. U. v.S. 1, 67, 56 S.Ct.
A.L.R. 914. promotion bargaining of collective subject to the Con industries gress determined to be within congressional Certainly field of action. conjecture” cannot be deemed “fanciful (Borden’s Baldwin, Farm Products Co. v. 79 L. 281) prevention Ed. that the of discrimina by requiring to reinstate position held before a to the gave oppor strike which tunity practice oper discrimination will promote strengthen ate to collective bargaining. Therefore I am the proper. obviously Board’s order It fol- payment wages
lows that the order for the date of the from jurisdiction. also within the Board’s *8 COUNTY, DIST. NO. CLARK
SCHOOL WASH., v. ISACKSON.
No. 8417. Appeals,
Circuit Court Ninth Circuit. Oct.