Evening star., 1947-09-14
Threatened Legal Battles
Over Labor Act Luqqinq
Only 2 Suits Involving Constitutional
Issues Have Been Filed as Yet
Bp Gerard d. Reilly

ofnclals in their public appearances have been
proclaiming their intentions of launching an
immediate legal attack on the constitutionality
OF virtually every provision. 1t will therefore
come as surprise to many to learn that in
the two and one-half months which have
elapsed since the Presidents veto of the bill
was overridden. only two cases raising any
constitutional question have been docketed in
the courts.
Moreover, the moving party in the more i'm
portant OF these two cases is not an AFL or a
CLIO union. 1t is the nominally independent
Foremen's Association of America, which has
commenced an action against the Labor Board
members and the general counsel in the United
States District Court for the District of Co.
lumbia
The provision of the act assaled in this law
suit is an amendment to the Wagner Act which
excludes supervisors from the category of en-
ployes. The legal effect of this subsection Is
therefore to take from the board its iurisdc-
tlon to entertain election petitions by labor
organizations, composed in whole or in part
OF 1oremen. Supervisors also lose their right
OF recourse to the board should an employer
olscharge or discipline them for joining or
supporting labor organization
During the 60-day period of grace which the
statute gave the board to put the Wagner Act
amendments into operation there were some
50 cases in which the foremen's association
mad hled petitions for elections. There were
also about the same number of cases in which
the association, having won elections had filed
charges demanding that the board enforce its
status as the bargaining agent. Although only
one Of these cases, the Packard Motor case, had
reached the Supreme Court, the 5-4 decision
In favor of the foremens organization fore
shadoWed decisions in the other so cases COM
pelling the employers involved to comply. The
action of Congress. however was tantamount
to legislative reversal of the Supreme Courts
decision.
few weeks before the act went into effect
the board knowing that 1t would no. be able
to issue any order in foremen's cases after
August 70 which could be legally enforced, dis
missed all pending matters involving super
visory employees. The union retorted by filing
bill for declaratory Judgment and an in
junction to compel the board to hear the cases.
claiming that the exclusion of supervisors from
the act is unconstitutional
The protection given under the old Wagner
Act, however was not l-embracing Two i'm
portant occupational groups whose numbers
run into millions were excluded from the
benefits of the act, viz. domestic servants and
agricultural laborers. No one ever doubted that
the exclusion of these groups was within the
power of the Congress which passed the Wagner
Act, and the same exemptions in slightly
different language were repeated in such sub
sequent legislation as the Social Security Act
the Walsh-Healey Act and the Wage-Hour Act.
All that Congress did in the Taft-Hartley Act
therefore, was to create new class of exempt
persons
The challenge to the constitutionality OF this
subsection rests upon the extremely tenuous
argument that although the exclusion of certain
categories may be proper, the exclusion of
foremen was an unreasonable classification, and
consequently repugnant to the due process
clause. 1t Is hardly likely that this argument
will be persuasive, for all that the majority of
the Supreme Court decided in the Packard case
was that the board had not exceeded It's powers
In treating foremen as employees. The clear
implication Of Mr.. Justice Jackson's opinion
was that had the board anticipated Congress
by viewing foremen as outside the act such a
decision would have been equally proper
The chances are that the merits Of the
constitutional question will not even be reached
in this proceeding. While there have been scores
of cases in which unions, which have felt
aggreVed by decision in a representation case,
almost invariably been dismissed on jurisdic-
tional grounds The circuit courts of appeal
have generally accepted the theory that since
Congress provided for judicial review only in
unfair labor practice cases. the absence OF
similar provisions regarding representation
cases meant that the courts lacked jurisdiction
to entertain appeals from board rulings in this
field. AS the general counsels Office will file a
motion to dismiss on this ground 1t Is almost
a foregone conclusion that 1t will be sustained.
Nevertheless in the other test case docketed
in the United States District Court for the
Northern District of Texas as Oil Workers
International Union (CIO) VS.. Elliott, the
plaintiffs successfully surmounted this pre-
minary hurdle. This was the election case in
a petroleum refining plant in which the ballots
were impounded by the NLRB regional Office
pursuant to instructions from General Counsel
r. N. Denham. His ruling was that no union
whose officers had failed to file the affdavits
disclaiming communism, required under the
new act. was eligible for certif1cation even
though the votes were cast prior to the effective
date. TIE union sought to have the court
compel the counting of the ballots on the
ground that the section relating to the Com
munist membership of union officials was
invalid.
Having denied the Governments motion to
quash the case on jurisdictional grounds, Fed
eral Judge Whitfield Davidson was faced with
the constitutional question. This he met
unhesitatingly by declaring that Congress had
acted properly in barring access to the board
by unions with Communist officials.
The Constitution guarantees q representa-
tive form OF Government" he declared, land
it is consistent and proper to throw restraint
around any organization by denying privileges
to those who would destroy this form of Gov
ernment." Moreover. although it was not
necessary for him to pass upon the question
(the union involved had not itself filed the
qualifying documents, the judge also upheld
Mr.. Denhams disputed ruling that the act
requires affidavits to be filed by officers Of the
,arent bodies as well as by the afnliated unions,
20 give any AFL or CIO organization right
70 be heard by the board.
He said "the policy of the C1o is shaped by