Evening star., 1936-04-05
LABOR BOARD VICTORIES
2O.ll in INJUNCTION SUITS
Questions Raised in Decisions, Must Be
Settled When Cases Reach u. S.
Supreme Court.

the company there be change in
conditions of employment and that
the change be to closed shop.
The law requires the company to
bargain, or, according to Judge Barnes
definition, Ito negotiate over the terms
Of an agreement.
The Judge rejects as contrary to
reason" the suggestion that the words
TO bargain" mean merely Ito talk"
Pressing his argument. he con-
tinues:
"Then the further question arises:
May the plaintiff bargain indefinitely
without any good faith intention of
entering into closed shop agreement?
The answer must be in the negative;
one cannot be said to bargain for
the purchase of a house If he has
a settled determination never to buy
house on any terms.
Must the plaintiff bargain in good
faith with an intent to enter into some
sort of closed shop agreement? This
is apparently the intention of the act.
An agreement for a closed shop Is
expressly declared not to be illegal.
The act applies compulsion to one of
the contracting parties-the employer
and requires him to bargain con-
corning working conditions, and, since
it Is not illegal, an agreement for a
closed shop may be working condi-
tion.
Agreement Necessary.
And, to pursue the intent Of the
act little further, since the employer
must bargain in good faith with an
intent to enter into some sort Of a
closed-shop agreement, and, since
under the act, the representatives Of
the employees are at liberty arbitrarily
to reject any suggestion Of the en-
ployer, regardless Of how reasonable
it may be. the -.1loyer must eventu-
ally enter into q closed-shop agree
ment."
Once the agreement has been
signed, the 100 members Of Local
No. and the 40 independents either
must join the Bendix Employees Asso-
citation or be discharged.
Characterizing Judge Barnes con-
clusions as legal refinements based on
situation just within the limits of
possibility, champions of the act
maintain its enforcing officers do not
give it the strict Interpretation the
jurist held to be required by the Ian
guage of Congress.
Both parties in collective bargain
ing must show a sincere desire to ar
rive at an understanding. and the en-
ployer who. in good faith, talks over
the situation in an effort to reach a
give-and-take agreement has moth
ing to fear from the law, they contend.
Yet a situation somewhat familiar
to Judge Barnes hypothetical case
appears in the Majestic Flour Mill
litigation before Judge Otis.
Because the mill owners could not
comply with certain demands Of their
newly organized employees and con-
tinue to compete with other mills,
they were forced temporarily to close
their mill. Shortly thereafter, at the
request of business men and city OH
cialS, they agreed to resume opera
tions. An increase in wages over the
previous scale was offered and found
satisfactory to the workers, as were
the proposed hours Of labor. But the
union still insisted that the company
meet its demands for q contract en-
bodying promise to employ none but
union members and to discharge no
employe without cause.
This the owners refused to do and
the Labor Board construed their re-
fusal as an unfair labor practice,
Judge Otis asserted.
State Control Invasion.
He decided that the act tnvades
fields Of control reserved to the States
in violation Of the tenth amendment,
since its attempted justification as
regulation Of interstate commerce
cannot be sustained so far as intra-
State manufacturing Is concerned.
The unsoundness Of the contention
that interstate commerce can be af-
fected by the manner in which an
employer bargains with his employees
is apparent, he declared.
In his declaration that q district
Judge should rule on constitutional
questions so as to give the higher
courts the benefit Of his conclusions,
Judge Otis came In direct conflict with
Judge Martins opinion In the Bemis
Bag case.
Judge Martin contended that dis
trict courts should be reluctant to
hold acts Of Congress void. since
notification Of laws in some districts
and their enforcement in others leads
to much confusion.
Judge Rippy, in the Precision Cast
ing Co. case, held that the courts
should refuse to pass on constitutional
questions unless presented "in q Jus
ticiable controversy where the private
rights Of individuals are involved after
application Of the act by the agency
authorized to apply It,"
Both he and Judge Adkins adopted
the often repeated contention Of the
Labor Board that district courts are
without jurisdiction to pass upon con-
issues arising under the
act, since the statute, itself. provides
for q review Of its orders by the
Circuit Court Of Appeals.
Part Of Law Held Valid.
Judge Adkins refused to rule on the
constitutionality Of the act,
except as to the provisions guaran-
teeing workers the right to organize
and to bargain collectively without
by employers. This part
Of the law he held to be valid.
citing as authority the much-quoted