Evening star., 1939-12-12
2-to-1 Decision Grants
Discretion on Hiring
BY the Associated Press.

NEW YORK, Dec. II (P0.-The
United States Circuit Court of Ap-
peals held today that the National
Labor Act did not prevent an en-
ployer from discriminating against
union or nonunion members IN hir-
ing workers.
The decision, the first of its kind,
was by 2-to-1 vote. the majority
declaring that it was only after
an employer -employe relationship
had actually been established that
the employer was required to refrain
from discrimination.
Most local labor leaders declined
comment, saying they first wanted
to study the opinion in all its i'm
plications. One C. I. o. source, how
ever, said informally his organiza-
ton did not appear affected, since
c. I. o. agreements with manage
ment usually required employees to
Join the union only after a stated
period of employment.
Firms Policy Discretionary.
The American Federation of La
UOl 1ldS q PolISy vi 1CHAil Ai6 V4A-
ployers in some crafts to select new
employees from a 100 per cent union
list. This is done, however, under
the authority of private labor con-
tracts and the court remarked that
the employer may" but not must,
require membership in the labor
organization which has been legally
chosen to represent his employees"
Dissenting from his colleagues,
Judges A. N. Hand and Thomas w.
Swan, Judge Learned Hand said it
appeared beyond doubt to him that
1t was unfair labor practice "mere-
ly to refuse to employ men because
OF their union activities"
Surely" he added, 'it tends to
discourage membership in any labor
organization "a phrase from the
act ITSELF to know that record of
union agitation will prevent one
from getting back ones old job"
The case involved the National
Labor Relations Board and the Ma
tional Casket Co. of Oneida, N. Y.
The board had directed the COM
pany to cease and desist" from dis
couraging employees from joining an
A. F. Of L. union and from inter-
fering with their right of self
organization" The corporation also
had been ordered to reinstate seven
men who claimed they had been dis
charged for union activity.
One Order Reinstated.
The courts majority approved the
boards desist order and directed
the reinstatement of one of the
seven discharged men.
As to the other six, the opinion
held:
The section Gin question:, 8 90,
confers rights upon employees. not
upon applicants for employment.
The purpose of the act is not to
compel an employer to hire men,
bers of one union rather than an
other, to select an A. F.. of L. man
In preference to c. I. o. man, or
a non-union man In preference to
either"
"The board would then have to
enforce the rights of the non union
men not be Disseminated against
Between applicants for work who
are not employees. we think an en-
ployer is free. to employ one who
has not previously engaged In
union or non-union activities, OF
vice versa.
NOn-Union Rights Cited.
~ 1t should be cited that the
boards reading of 90 would not
lead to the hiling of union rather
than non-union men in all instances
Where the employer hired a union
man rather than a non-union mar
Of equal merit because the former
was a member of the union there
would be discrimination in hire
which tended to encourage mem.
bership in a labor organization, an
unfair labor practice in the board.
eyes. The board would then have
to enforce the rights Of the non
union men not to be Disseminated
against"
Ruling that there was no justifica-
tion 1or awarding damages to the
six men not reinstated the court
held that such an action would "gt
lar beyond" the act and "in effect
promote a policy which would re.
suit in the employment of only
union labor"
Too, it added, under such 6
construction difficulties might b.
created as between equally qualified
members of separate unions.
Status of Applicants.
The majority decision denied re-
mstatement to the six on the groune
that they had been dismissed be-
fore the Labor Act went into effec
and thus had the status only of un'
employed applicants for jobs.
Judge Hand disputed that view