Evening star. [volume] (Washington, D.C.) 1854-1972, 1939-12-26

AL llAS CIV
enth. sixth and fourth circuits, re-
spectively. have put their hneer o1
warning on the Labor Board for at
tempting to apply its own guess or
surmise of union activity as the mo-
tive of an employer in exercising his
constitutional right to dismiss en-
ployes because Of poor quality OF
work.
It is plain that if the Labor
Boards rulings were upheld the
right of discharge would disappear
altogether and any union or nom
union worker who lost his Job could
claim he was being Disseminated
against for union activity and thus
get the protection of the board.
Abuse of Discretion.
What the three cases-Which are
strangely alike though arising in
different parts of the country-re-
veal is that the board feels that
under the provisions of the Wagner
law it has discretionary power to
rule on any and all cases of dis
rnissal in America the moment any
body raises link to unionism and
that there is absolutely no safe
guard in the law now against the
use of the board itself as an in
strument of coercion in regulating
the hiring and firing of employees III
American industry. Judge Treanor
in the seventh circuit characterized
the boards activities as IAN abuse
OF discretion
In all three cases the Circuit
Courts of Appeals find that the
board was unable to support its
findings by substantial evidence -
This means that the courts are be-
Coming review commission where
the citizen must go to get a fair
trial after going through long liti-
cation processes.
In one of the three Cases-decided
last week at Chicago-even the
trial examiner held that one Of
the employees had been dropped for
inefflciency and refusal to do his
work, but the Labor Board over
ruled the trial examiner and now
the Circuit Court of Appeals finds it
necessary to override the board-a
process that costs time and money
and certainly arises out of the care
lessness of Congress in vesting con-
troll over the employer employe re-
tationship in board of three men
who are empowered to find the
facts and who lately have inserted
surmise and inference as a means of
reaching conclusions.
In another case-decided at Rich
mond, Va, last week-the judges of
the Fourth Circuit Court found
that the board had ordered a man
reinstated who according to testi-
mony accepted by the board itself
as correct was negligent and care
less in his work and had been guilty
Of misconduct of various kinds, in
Guiding gambling and drinking"
Judges Comment.
The board nevertheless insisted
that the true reason for discharge
was because he was active in organ
1zlng a union which the manage
ment disliked. After reviewing the
boards decision, Judge Soper said
on behalf of a unanimous court of
three judges:
Had the issue under discussion
been a question for the decision of
Judge and jury in trial at common
law, the evidence would not have
warranted its submission to a jury,
and If nevertheless such an issue
mad been submitted, and had been
followed by verdict adverse to the
employer, it would have been the
duty OF the Judge to set it aside and
grant new trial. This is a sound
test when the probative force of
evidence is to be ascertained, as the
supreme Court and the Circuit
Courts OF Appeals have repeatedly
held, and 1t is the proper test to be