Evening star. [volume] (Washington, D.C.) 1854-1972, 1935-09-04
vO|D|NG OF LABOR
LAW IS FORECAST
Board Chairman's Argu.
ment Held Proof Court Will
Act Adversely.
BY DAVID LAWRENCE.

What j. Warren Madden, chairman
of the newly created National Labor
Relations Board, said over the radio
about the Wagner labor law has To-
cused attention once more on the
probability that the act will some day
be declared unconstitutional.
No better proof of this could be
given than the argument which Mr..
Madden has made for the board. He
said:
THE boards powers are expressly
limited to the prevention Of unfair
labor practices affecting commerce
and commerce is expressly defined
as interstate and foreign commerce"
The Supreme Court Of the United
States in the Schechter case by
unanimous opinion stated that the
mere fact that practice "affects"
interstate commerce is not sufficient.
The effect must be direct" And the
Supreme Court in previous cases has
held that q labor dispute or a threat
Of a strike-except Of railroad en-
ployes-directly affects interstate
commerce even though the employer
sells in interstate commerce goods
which have been produced by en-
ployes who are parties to labor dis
pute. This has been held to be true
even though the effect Of o strike or
a threat of a strike Is to reduce the
amount of goods moving in interstate
commerce.
Would Retard Bargaining.
The essence OF the Wagner labor
law is an attempt to enforce collective
bargaining as principle OF conduct
in the relations Of employer and en-
ploye. There is much merit in col
lective bargaining and the right OF
employees to negotiate through agents
of their own choosing, but the pro-
lection of this right is matter for
the police power of the States. In
deed, everything that Mr.. Madden
says about the virtues OF collective
bargaining can be obtained under State
laws. The effort to concentrate on q
Federal statute for this purpose will
only delay and retard the true at
tainment of collective bargaining for
American labor.
For it Is evident from Supreme
Court decisions that there is no direct
relationship between a labor dispute,
or controversy over union or nom
union membership and the movement
of goods in interstate commerce. In
the famous Adair case the Supreme
Court passed judgment on a law which
had forbidden interstate carriers,
namely railroads, to threaten any
employee with loss of employment
or to discriminate unjustly against
any employe because of his member
ship in a labor union. Said the
Supreme Court in 1908 in holding the
act unconstitutional;
"Manifestly any rule prescribed for
the conduct Of interstate commerce,
to be within the competency Of Con-
gress under its power to regulate COM
merce among the States, must have
some real or substantial relation to
or connection with the commerce reg
ulated.
No Bearing Under Law.
I
| connection Is there between an en-
ploye's membership in a labor or
ganization and the carrying on OF
| interstate commerce? Such relation
to a labor organization cannot have,
in itself and in the eye Of the law,
any bearing upon the commerce with
which the employe Is connected by
his labor and his services"
The court held also that the statute
had its origin "in the apprehension,
on the part of Congress. that II it did
not show more consideration for men,
bers Of labor organizations than for
wage earners who we're not members
of such organizations, members of
labor organizations would, by illegal
or violent measures, interrupt or i'm
pair the freedom Of commerce among
the States"
The court stated that 1t could not
indulge In any such conjectures with
out imputtng to Congress the purpose
to accord to one class of wage
earners privileges withheld from
another class of wage earners, en-
gagged, 1t may be, in the same kind
of labor and serving the same en-
ployer."
The last sentence applies equally
well today to the language Of the
Wagner labor law, which attempts to
bind q non-union minority IN q shop
| to the wishes of union men or union
minority to the wishes Of a non-union
majority.
Misled by 1917 Decision.
Some observers have been misled by
subsequent decision. in 1917. where
by the Supreme Court upheld an act
of Congress fixing hours Of employ
ment, but here the precedent cannot
be held to apply to private industry.
because Congress had already asserted
its power to regulate the railroads
and the question Of standard eight
hour day was held to be part OF the
regulatory power Of Congress over
railroads.
Inasmuch as collective bargaining
| is attainable under State laws and
probably will be held to be outside the
scope Of Federal power. 1t Is interest,"
| ing to 60 back to the "horse-and-
buggy days" Of February, 1898. when
Senator Robert Wagner. author OF the
new labor law, was speaking in the
United States senate. He had Just
contended that the question which
had troubled the American people
since the eighteenth amendment was
added to the Constitution was not at
all concerned with liquor" but was q
question of government. how to re-
store the constitutional balance OF