Evening star., 1936-04-05
BY WILLIAM S. TARYER.

Although haraSSed by so injunc-
tion suits attacking the constitution
atty of the Wagner act and facing
the probability of an early Supreme
Court test, the National Labor Re-
lations Board is moving into its Sec
ond half year of operation far ahead
OF its opponents in the number of
legal victories.
Designed to enforce the right of
collective Bargaining by employees, the
act has been challenged by many
employers, who contend it deprives
them of constitutional rights.
Here Is the score to date in these
contests:
For the board-20.
Against the board-11.
In only six Of these decisions, how
ever. have the courts touched upon
constitutional issues. Four Federal
judges favored the act and two fatty
declared it invalid.
Of unusual interest in the two ad-
verse opinions is the striking assertion
by Federal District Judge John P.
Barnes of Chicago that the act COM
pels the employer to accept in some
form the offer made by his workers.
Bargaining, said Judge Barnes, in
which one party is forced to negotiate
over terms of an agreement while
the other party may arbitrarily re-
ject any proposal is one-way mat
ter and no bargaining at all.
Evident Intention of Act.
Yet this result is the evident inten-
ton of the act and, coupled with the
principle of majority rule, constitutes
its very essence. the jurist declared.
In none of the five other opinions
touching upon the constitutionality OF
the act is this question of "compul-
sory unilateral arbitration discussed.
Judge Merrill E. Otis of Kansas
City, Mo, who, with much vigor of
language also has ruled the act uncon-
stitutional, based his decision squarely
and solely on the proposition that
Congress has no power under the COM
merce clause to regulate manufactur-
ing. This view also was taken by
Judge Barnes.
Judges Jesse G.. Adkins of this city,
j. D. Martin Of Memphis, Harlan w.
Rippy of Syracuse, and William
Bondy of New York, all Of whom
aligned themselves on the side of con-
stitutionality of the act, likewise failed
to mention the point brought out by
Judge Barnes, although Judge Ad-
kins' decision, made Thursday, fol-
lowed publication of the findings OF
the Chicago jurist by one week.
Their decisions reflected the belief
that opponents Of the act have an
adequate remedy at law and the de-
termination expressed by Judge Mar
tin that he would hold firm to the
principle that an inferior court should
not strike down an act of Congress
unless convinced beyond the shadow
of doubt that the act is unconstitu-
tional."
Uncertainty Of Discussion.
Whether compulsory unilateral ar
bitration" will enter into decision Of
the Pennsylvania Greyhound Bus
Corp. case, argued Tuesday in the
Circuit Court of Appeals in Philadel-
phia, cannot, of course, be predicted.
This case appears likely to outdistance
all others in the race to the Supreme
Court and final test of the law which
was hailed at its passage as the Magma
Charta of labor.
Ruling in the Bendix Products Corp.
case, Judge Barnes held that collec.
tive bargaining under the act must,
OF necessity, deprive the employer Of
his freedom Of contract, which Is q
property right safeguarded under the
due process clause in the first amend
ment.
He based his reasoning entirely on
the act and the dictionary.
The act, he found, makes it an un-
fair labor practice for an employer to
refuse to bargain collectively with the
representatives of his employees.
The dictionary defines the verb
"bargain" as meaning ito negotiate
over the terms Of an agreement"
Sweeping aside contentious of the
Labor Board that a system of law
by precedent must be built up to
clarity just what bargaining is, Judge
Barnes adopted the dictionary defini-
ton as his own.
From it he reasoned that an en-
ployer must negotiate over the terms
OF an agreement which his employees
collectively offer him and, since the
law pre-supposes that he acts in good
faith, he must necessarily eventually
adopt the proffered agreement in some
form.
To drive home his point, Judge
Barnes superimposed hypothetical
situation on the Bendix plant, which
is located at South Bend, Ind.
Facts Of Case Typical.
The facts Of the Bendix case were
typical Of q large number coming be-
fore the Labor Board. Local No. 8
Of the United Automobile Workers OF
America, an American Federation Of
Labor affiliate, asked the board to
certify 1t as the proper agency Tor
collective bargaining, claiming 1t rep
resented about 2,500 Of the 3,540 Ben
dix employees. The Bendix Employees
Association objected. insisting it was
the majority representative.
To decide the merits of the rival
claims, the board ordered an election.
The corporation countered with an in
junction suit.
Let US suppose, said Judge Barnes,
that the election was held and the
Bendix Employees Association received
1900 votes and Local No. Q received
1,7o0.
The association then proposes to