Evening star., 1940-02-12


average American citizen will
promptly answer both questions
with a feeling that it is almost
superf1uous to ask them.
But the record shows that Con-
gress alone does not make the laws
and that boards and commissions
in Washington have gone so far as
to write whatever laws they feel
are necessary without themselves
being responsible to the people
through the customary election
process.
Thus the National Labor Relations
Board members are not elected to
Office. Congress, which is elected,
delegates certain power to boards
and commissions, but it is an old
rule that what is omitted from the
statute should not be written in by
anybody else except the Congress.
Yet a shocking instance has come
to light of the conception held by
members of the National Labor Re-
lations Board. Warren Madden
and Edwin S. Smith-in which they
boldly proclaim the right to put
language into law that Congress
itself omitted. This would seem in
credible were it not for the fact
that 1t appears in black and white
IN the Stenographic record of the
proceedings of the special House
committee investigating the labor
board.
Questioned on Board Ruling.
Representative Howard Smith of
Virginia, Democrat, chairman of the
committee, was questioning Mr..
Madden, the head of the labor board,
about decision of the board to the
effect that a certain company re-
fused to hire two men who had
never before been their employees.
The board ruled that the reason
for refusal to hire was their mem
bership in a union and ordered the
company to give the men jobs and
also pay them wages for the interval
OF time that had elapsed between
the time the men applied and the
time the board made its ruling
Chairman Smith was quite willing
to concede that if the two men had
been employed before by this COM
pany and then had been dismissed
for union activity or membership,
the company could be required to
"reinState" them, but he said he did
not think the word 'reinstate" could
be construed to mean that persons
who never were employees could be
"instated," so to speak. Here is the
colloquy in the committee hearing:
Chairman Smith-Then you don't
think that the Congress by using
the word "reins.ate" confined your
remedies to employees rather than to
persons who had never been en-
ployed?
Mr.. Madden-I meant to speak of
that as matter of statutory inter-
pretation. 1t seems to me that when
you look at the whole spirit and
purpose of this act (the National
Labor Relations AcD, and when you
look at the evil of black lists, which
say it is inconceivable that the
Congress intended should be with
out remedy-when you look at all
those things, it seems to me that
the little prefix reinstatement is
too slight and accidental a matter
OF verbiage to control the whole
spirit and purpose of this statute.
Conception of Public Duty.
A little further on in the same
days proceedings Chairman Mad
den boldly proclaimed his concep-
ton of public duty as a member of
the labor board to include the right
to invent" any remedy which the
courts subsequently did not repri-
mand him or the board for using.
In other words, the citizen could be
punished as severely as the board
wished, subject only to the posi-
bility that a Federal judiciary, now
more than SO per cent appointed
under the New Deal, might check
the abuse of power. Here is the
quotation on invention of remedies:
Mr.. Madden: You will re-
member that our statute, in giving
us the power to order a person to
cease and desist and to take such
affirmative action as will effectuate
VIC pOlISACo vi OllC dCt, QCcS give
us pretty broad power.
Chairman Smith-And it gives
you the right to construe it as you
see fit, except as some court may
later come along and say that you
have been mistaken?
Mr. Madden-YeS. What we would
invent by way of remedy I take it
would have to be a reasonable and
not an arbitrary device to remedy
the situation.
Power to Assess Fines.
The reading public can judge how
reasonable or how arbitrary is the
remedy selected by the board
when it assumes the legislative
power to impose fines that could
amount to millions of dollars on
company which in choosing between
several applicants prefers for rea-
sons of its own certain prospective
ADVERTISEMENT.