Evening star. [volume] (Washington, D.C.) 1854-1972, 1938-05-22
BY JOHN H. CLINE.


lations Board was effectively
~ spiked for the time being last
week by the Supreme Court.
That. at least, is the widely accepted in
depreciation which has been placed on the
courts ruling in the Mackay Radio & Tele-
graph Co. case that the procedure followed
by the Labor Board did not violate the
rudimentary requirements of fair play,
which the justices have said must be OBJ
served
The members Of the board have been
subjected to repeated attacks from repre-
sentatives of business and industry on the
ground that their proceedings have not
been fairly conducted, and the stamp of
approval placed on the proceedings in the
Mackay case. especially in view Of the fact
that there was no dissent from the So
called conservative Judges, makes the pro-
cedural ruling of prime importance. While
it does not necessarily follow that the board
will be upheld in all other pending pro-
cedural controversies, the language Of the
opinion certainly carries strong implica-
ton to that effect.
Unemployment Phase Submerged.
Widespread interest in the procedural
question resulted to some extent in the SUBJ
mergence Of another highly important mat
ter on which the court passed judgment in
the same opinion-the circumstances under
which an employer may and may not be
compelled to re-employ workers who par
ticipate in a strike.
In ruling on the latter point. the court
upheld the order of the board directing the
Mackay company to re-employ the strikers
in question, but then undertook to specify
circumstances which would have relieved
the concern of its obligation to take the
men back. BY doing that, the court cleared
up a great deal Of uncertainty which has
enveioped that question and for the first
time laid down a set of principles which
will serve hereafter as guide to employers
faced with the necessity of deciding
whether they should reinstate striker or
retain q substitute hired to replace him
during strike.
telegraph operators employed by the
Mackay company in its California office
went out on strike in 1885 while negotia-
tions for q contract were under way. In
order to maintain its service the COM
pany brought operators TO San Francisco
from Los Angeles, New York and Chicago,
promising they could stay at San Fran
cisco If they wanted to.
Strikers Asked for Jobs Back.
The strike lasted but a few days and
the strikers asked to be put back on their
Jobs. The company agreed to take all
of them back with the exception Of II
supposed ringleaders. provided the i'm
ported operators did not want to stay.
It was stipulated that the II not imme-
diately re-engaged would have to submit
applications for reinstatement to the New
York Office and await approval from that
source. It developed, however, that only
five of the new men wanted to stay, so
six of the II were given their jobs back.
The company refused to reinstate the other
five.
On their behalf the union filed COM
plant with the Labor Board, alleging the
company, in refusing reinstatement. was
discriminating against them because OF
their union activities. The Labor Board
ruled In favor Of the union. but that ruling
was reversed by the Ninth Circuit Court
Of Appeals, which held that the strikers
by virtue Of the strike had ceased to be
employees, and that since the employee
employer relationship had been dissolved
by the voluntary act of the men, the board
was without power to order their re-em-
ployment.
With that view the Supreme Court was
in thorough disagreement.
That tribunal, in an opinion written by
Justice Roberts. called attention to the
fact that the strikers remained employees
under the Wagner Act section which pro-
vides: THE term 'employe shall include
any individual whose work has ceased as
4 consequence Of or in connection with
any current labor dispute or because of
any unfair labor practice. ="
It was recognized that at the time of
the strike the company had not been
guilty Of any unfair labor practice. Fur
ther. the court said, it was immaterial that
the company was innocent of any act
which would have justified . strike be-
cause the existence Of the current labor
dispute" In the form Of the negotiations for
Q contract retained for the strikers their
4.