Evening star., 1941-05-01

C1ceS OF the supreme Court OF the
United States, appointed by Presi-
dent Roosevelt since the court con-
troversy in 1887, have in effect pro-
claimed such doctrine. It means
a grave loss to the citizen of one of
his precious liberties and has no
warrant in the words or implications
of the Constitution but it is today
the supreme law of the land.
For what the Supreme Court has
said about the Wagner Act it can
cay about any other Federal statute.
Justice Frankfurter, probably the
greatest verbal acrobat who has ever
sat on the bench, wrote the opinion
of the court which is the most far
reaching deviation from the Con-
stitution in the whole history of the
high court.
Mr.. Frankfurter starts out with
the declaration that, in the event
of discrimination by an employer
against an employe because of his
union Affiliations, Congress directed
the National Labor Relations Board
"to take such affirmative action, in
eluding reinstatement of employees
with or without back pay, as will
effectuate the policies of this act"
To the objection that the word
Reinstatement" plainly was meant
to cover the case of worker who
had actually been employed and
dismissed and could not possibly
cover the case of an applicant for
q job who really was never employ
ed, Justice Frankfurter argues that
the word including" does not mean
that the Labor Board is barred
from any other penalties which
1t might wish to devise to "effectuate
the purposes of the act"
To the objection that person
who was an applicant for job and
was refused employment happened
to get substantially equivalent EN-
ployment elsewhere in the interim,
Justice Frankfurter says this doesn't
matter and that the Labor Board
must be regarded as having the
power to order back pay and
employment simply as means OF
accomplishing "the central purpose"
OF the Wagner law.
Limitations on Review.
On the one hand, the Frankfurter
opinion permits a governmental
agency to prescribe almost any rem
edies which in its own judgment
would "effectuate the purposes of
the act" but it insists that judicial
review of the orders of the board
should be limited and that courts
should not interfere.
"All we are entitled to ask" says
Justice Frankfurter, lis that the
statute speak through the board
where the statute does not speak
for itself"
This novel doctrine is vehemently
Pebutted by Chief Justice Hughes
and Justice Stone, who represents
the liberal point of view which is
now in the minority in the Supreme
Court. Says Justice Stone in his
formal dissenting opinion:
The authority of the Board to
take Affirmative action by way OF
reinstatement of employees is not to
be read as conferring upon it power
10 take any measures, however dras-
sic, which it conceives will effect
eate the policies of the act.
THE authority given to the board
by Section 10c is not an unre-
mtricted power, and the grant is not
10 be read as though the words in
eIuding reinstatement of employees
with or without back pay were no
part Of the statute. None of the
words OF q statute are to be disre-
garded and it cannot be assumed
shat the introduction Of the phrase
kn this one was without purpose.
But an authority to order REIN
statement is not an authority to
compel the employer TO instate as
his employees those whom he has
never employed and an authority
to award back pay to reinstated