Evening star., 1940-10-05
Homperinq Defenses

other executive agencies of the Gov
ernment unless and until reversed by
a court of competent jurisdiction
may have very serious repercussions
in our emergency defense effort.
Considered against the background
of the controversy to which it is pre-
sumably directed, the opinion is a
singular one to say the least. Mr..
Jackson, it should be noted, did not
rule that the Defense Commission or
any procurement agency is forbidden
to approve contracts with firms
adjudged by the Labor Board to be
in violation of the wagner Act. What
he did say was that executive agen-
cies must assume that Labor Board
findings are valid until the contrary
has been established in the courts.
A possible effect of this ruling,
obviously, might be to foreclose
the right Of judicial review guaran-
teed by the Wagner Act itself. Under
that statute a finding by the board
in any case does not become binding
and conclusive even upon the en-
ployer in question until the appellate
courts have upheld the board. This
right Of appeal is vital one, and
Mr.. Jackson's holding that executive
agencies may not await a final de-
termination before treating the
accused as guilty becomes all the
more significant in view of the fact
that the courts on numerous occa-
sions have reversed the Labor Board.
AS the matter now stands, the po-
Sition of the Defense Commission is
a difficult one. In a recent public
statement that agency strongly
urged all concerns accepting de-
fense contracts to comply with the
labor laws, and fair-minded persons
will agree that any firm seeking
Government business ought to COM
ply with the laws of the land. To
hold otherwise is to argue that the
Government should do business on
even terms with law-abiding con-
Germs and with those which flout the
laws to gain competitive advantages.
For these reasons, it may be assumed
that the commission would not and
should not deal with any concern
which, after full appeal, still re-
fuses to obey the law. But that is
an entirely different matter from
applying the same rule after find
ing of guilt by the Labor Board and
before any court ruling on the issue.
II the commission is going to adopt
this latter policy-and it must be
conceded that the Attorney Cen
erals ruling exerts strong pressure
to that end-there would result
situation which is alien to the most
elemental concepts of fair play.
For example, an employer, once
found guilty by the Labor Board,
might have to choose between aban-
doning an appeal or foregoing all
defense contracts. The first choice,
while strengthening the position of
unions and of a Labor Board which
Is thoroughly diStruSted by the bulk
of industry, would have the effect of
denying an employer the right Of
judicial review which is inherent in
the American system of justice and
which is safeguarded by the Wagner
Act. Nor is the alternative more
attractive, for if any substantial
number of employers should elect to
forego contracts a serious break
down in the defense program would
result.
There is but one equitable way out
of this dilemma, and that is for the
Defense Commission and the various
procurement agencies to treat the
Attorney Generals ruling for what
is-a basis for refusing to approve
contracts If in their discretion they
should not be awarded to particular
firmS-but to resist any attempt to
use the ruling as pressure instru-
ment for the indiscriminate denial
by executive action of rights recog-
nized by the laws of Congress.
There is ample justification for
such course. John L. Lewis of the
c. l. o. has consistently sought to
compel firms receiving Government
contracts to comply with all findings
Of the Labor Board. But the House
has refused to adopt legislation de-
sired by Mr.. Lewis, and the President,
when requested last year to issue an
executive order accomplishing what
the House had refused to do, declined
with the explanation that the "only
unquestionably valid" method of in
stituting this requirement was by
legislation.
The Presidents position is still
sound, and it ought not to be circum-
vented by any one at this critical
time.