Evening star., 1941-05-02


hire and fire David Lawrence
long considered the privilege of
Americas managers of the free en-
terprise system-now has been linn
tied by Government itself, which not
only in effect places the burden of
proof on an employer when he
wishes to discharge but also places
upon him the responsibility of prov
ing just what are his reasons when
he does not wish to hire an appli-
cant. 1t is the Government which
has the say as to what may be done
in this respect within industry
hitherto regarded as private.
These results flow from the opin-
ion rendered by Justice Frankfurter
in behalf of his four New Deal COL
leagues, who now constitute ma
jority of the Supreme Court.
The decision has awakened in
Washington, and especially in Labor
Board circles, a sense of aware
ness of the tremendous responsible
ity involved. 1t is being averred
that the board will not lightly eXer-
else its newly received powers. The
prediction is made that it will not
be possible for any applicant for a
Job merely to claim that he was
denied work because of union az
filiation-he will have to prove it to
the satisfaction of the Board and
the latter, being composed nowadays
of a majority who are trying to look
effectively at issues that come be-
fore it, is expected to rule carefully
and meticulously on such cases.
Observed by Public.
What is often overlooked, how
ever, is that single ruling in which
there may never again be lawsuit
or a controversy is accepted by the
public and in practice the limita-
tons of that ruling are observed
far more broadly. 1t will be very
difficult to tell just why an appli-
cant was not hired. He or the
union which he represents is IN
position to harass employers with
suits before the Labor Board. The
record of the past shows that LABOR
Board examiners have not been
averse to using f1imsy claims by
employees and unions as the basis for
an inference of guilt. The Labor
Board permits surmlses and inter-
ences. to become the equivalent OF
evidence, which often means that
the examiners who hear the testl-
mony make q report guessing as
to what went on in the mind OF the
employer. 1t is against such
background as this that a promised
revision of Labor Board methods
has to be viewed. For with the
newly given power to order back
nay to those applicants who never
worked for an employer but who
can make out a case of alleged
discrimination on account OF union
membership, employers must watch
their step. 1t is curious paradox
that an employer runs far less
risk in refusing to employ a non
union than a union worker.
The consequences of the Frank
furter decision are bound to be far
reaching. The New York Times,
which originally enthuSed over the
appointment of Justice Frankfurter,
says: "One result of the new
decision should be to greatly
strengthen a movement toward the
closed shop. Another result should
be to strengthen more than ever
the system under which the en-
ployer cannot freely choose his
workers but must choose those sent
to him by union. For legal penal
ties for not hiring a non-union
man do not exist, but for not hiring
q union man the penalty may turn
out to be prohibitive.
1T is hard to see that all this
can result in anything but increas-
ing inability on the part of the
employer to maintain discipline and
efficiency. Lack of efficiency must
result in the creation of less wealth
and in the slowing down of defense
production"
1t so happens that Congress has
before it legislation to prohibit the
closed or open-shop issue from being
raised in defense plants. One can
already imagine what Justice Frank
furter could say in writing an
opinion holding such an act in
valid. He could argue that the
whole history of union relations
shows that closed shops eliminate
strife and tend to promote the public
welfare-even though the evidence
shows that the individuals right
to a job irrespective of whether or
not he has Joined a union has al
ways hitherto been considered in
elienable.
Own Reasons as Arguments.
The tendency of Justice Frank
furter-the leader of the New Deal
group Of judges here-is to write
legislation into statutes or to ignore
the words of statutes by introduc-
ing his own fantastic reasons or
predictions as legal arguments.
This has been growing through
series of decisions. But not till
the fragrant contortion of the words
OF the Wagner Act to permit en-
ployers to be punished in forms
never prescribed by Congress itself
has 1t become apparent that the
theory of State-imposed regulation
is now imbedded in the thinking of
the New Deal majority on the Su-
preme Court.
Within recent weeks the usurpa-
tion of power has gone so far that
Justice Roberts, whose vote origin
ally upheld the Wagner law, wrote
IN formal opinion Of dissent in a
recent case:
"I venture to say that no court
has ever undertaken so radically to
legislate where Congress has so re-
fused to do"
Again, Justice Stone, an out
standing liberal, said on April IA
last in formal opinion of dissent:
THE responsibility of departing
from the long accepted construction
Of this statute should be left to
the legislative branch of the Gov
ernment to which 1t rightfully be-