Evening star. [volume] (Washington, D.C.) 1854-1972, 1938-05-22
The Labor Board Wins Again



better workers, that would have been .
valid reason for denying employment to
the strikers and the board could have done
nothing about it. IN fact, as the court said,
the employer might have resorted to any
one Of number of methods" of deciding
which of the strikers were not to be taken
back provided the chosen reason was not
one inspired by a desire to punish them
because of their activities in behalf of the
union.
Permits Employers Latitude.
So far as the Supreme Court is concerned.
then, it appears that an employer does have
some freedom in deciding whether he will
re-engage strikers provided he was not
guilty Of an unfair labor practice which
causd the strike. But in each case that
freedom will be limited by such proof of
union discrimination as can be placed be-
fore the board. and for all practical pur-
poses the board is to be the sole Judge OF
the sufficency of that proof. Should the
board order reinstatement of strikers with
out any evidence of discrimination by the
employer the court no doubt would refuse
enforcement of the order. but it does not
seem an exaggeration to say that the pre-
ponderance of the evidence need not be on
the side of the strikers.
The opinion should give measure OF
comfort to employers genuinely DESTROYS OF
abiding by the Wagner Act. but it is clear
warning to those who would circumvent
it that they will have to go to bat before
the Labor Board with two strikes called
against them.
The courts finding that the procedure
of the board in the Mackay case was both
adequate and fair was hailed by Senator
Wagner, author of the act bearing his
name, and by persons associated with the
board as the most important aspect OF the
decision a point of view that was with
out doubt influenced by the barrase OF
criticism aimed in recent months at the
manner in which several cases have been
conducted.
Hinged On Report
The procedural questions before the
court, briefly stated was whether the fall
ure of the board to serve the company
with a copy of an intermediate report
based on hearing before trial examiner
was sufficient to vitiate the whole proceed
ing. The intermediate report. ordinarily
made. was omitted in the Mackay case as
we'll as in several others
Noting that the members of the board
had heard oral arguments in the case and
had received brief from the company
setting forth its contentious before decid-
ing the case. the court decided the omls-
sion of the report was not fatal defect
Justice Roberts observed that the COM
pany understood the nature OF the issues
and the claims advanced by its opponents.
That, he said. gave them ample opportu-
nifty to prepare defense. which was all
they were entitled to under the due process
clause of the Constitution. The f1fth
amendment" he said. guarantees no par
ticular form of procedure; it protects sub
stantial rights"
A similar procedure was followed by
the board in the Republic Steel and Ford
Motor Co. cases. Until the Mackay de-
cision was announced many persons be-
lieved the court would rule against the
board in those cases under the definition
of fair procedure it announced last month
in the so-called Kansas City stockyards
case Apparently, however. the court
drew a distinction between the two cases
on the theory that the defendants in the
Kansas City case were not sufficiently well
advised of the nature of the charges against
them to prepare a defense.
Contends Privilege Not Denied.
In the Republic and Ford cases the board
did not receive briefs and did not hear
oral arguments. It is contended by the
board, however, that the two concerns
could have filed briefs and could have
presented oral arguments had they desired
to do so-ttat the board, in other words,
did not deny them those privileges. Should
those cases 60 to the Supreme Court IN
their present form, that tribunal may or
may not approve the procedure that was
followed Spokesman for the board pro-
fess confidence, however, that the pro-
cedure was sufficiently identical with that
in the Mackay case to assure ruling in
their favor.
The effort of the board to reopen the
Ford and Republic cases after the stock
yard decision was hailed by its critics as
q tacit admission that its procedure had
been unfair.
During its recent meeting here the
United States Chamber of Commerce
adopted a resolution to the effect that the
Wagner Act and its administration had
exerted q strong influence against recovery,
adding that "the recent action Of the Labor
Board Tin seeking to reopen the cases) Is