Evening star., 1948-10-14
Supreme Court Ruling
Called Kind Roosevelt
Inveighed Against
Decision on Premium Puy
Held to Be Usurpins
Functions Of Congress
By David Laurence

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By David Laurence
While all the political campaisners
are telling the country how terrible
the Democrats or Republicans hap
pen to be, no one ventures to re-
mind the country that 1t is witness
ing in the behavior Of the present
Supreme Court exactly what the
late President Roosevelt inveighed
against in 1887.
Mr.. Roosevelt contended that the
old court was 'legislating," that it
was usurping the function of Con-
gress by writing laws instead of in
terpreting them. Then the hand of
fate gave Mr.. Roosevelt a chance to
appoint the majority of a new court.
Now the Supreme Court, despite
the urgent pleas Of unions and en-
ployers who joined hands in desiring
q uniform Interpretation, has ruled
that the determination of what con-
stitutes regular rate Of pay and
an overtime rate of pay was not to
be decided by management and
union labor in their contracts but
by the courts.
Custom in Industry.
The issue arose over premium and
bonus pay usually paid for night
work or work after certain hours or
on holidays Congress intended to
maintain the custom in industry,
which is that, in order to figure
overtime after 40 hours, the regular
rate Of pay for regular hours Of
work is used. The Supreme Court,
however, totalled up all the COM
pensation paid worker within the
40-hour week, including bonuses and
premium pay for night work or ir-
regular shifts, and then divided by
20 to get what the court believed
should be the regular rate per hour.
Obviously this made overtime rates
of time and a half not only larger
for some employees than others in
the same plant but made 1t virtually
impossible for unions to write into
their contracts any uniform method
of computing wage rates where
premium pay or unusual shifts were
involved.
1t was precisely this sort of ir-
responsibility which led the present
majority on the Supreme Court to
say, in the portal to portal fiasco,
that q worker who walked few
yards inside a plant before he
started the days work was really
beginning his 4O-hour period and
that overtime would be computed on
all time in excess Of such a work
week. Congress had to pass q special
law to override this legislation writ
ten brazenly by the Supreme Court,
and thus q legalistic scheme to ex-
tort billions of dollars In back pay
from employers on technical grounds
was squelched.
The Supreme Court has further
Muddied the waters on the matter
Of wage payments by refusing to
review q lower court decision that
dealt with merit-pay increases,
though 1t must be said in extenua-
ton that the court now has agreed
TO take for review another case
which is much clearer as to the
issues on management's right to
grant merit increases.
Point for Discussion.
In the first case, 1t was ruled that
an employer was guilty Of an un-
fair labor practice under the Wag-
ner law because he refused to bar
gain on the matter of merit-pay
increases called for in the contract
with O union The union contends
that 1t was not asking to control
how merit increases were given but
simply wanted information as to
how the merit payments had been
determined on and just what in
ereases had been made.
Insofar as this was point for
discussion in a collective-bargain-
ing agreement, the employer prob
ably was in the wrong in declining
to discuss it, though his theory
doubtless was that merit increases
are a matter of management judg-
ment or discretion. In any event,
the new case which has gone to
the Supreme Court for review differs
In that it raises the point concern
ing the right of an employer to
make voluntary increases for any
reason when he has already been
In disagreement with a union, pre-
sumably after contract has ex-
pired or a deadlock has arisen in
the negotiations. At such a stage
labor is free to strike and manage
ment Is free to use any argument
or inducement to bring about a
peaceful agreement provided the
employer does not interfere with
the right Of the union to continue
to bargain or of workers to take
concerted action.
1t will be interesting to see how
the Supreme Court views the prob
lem of voluntary increases now that
the new labor-management law has
equalized the rights of management
and unions. Certainly under the old
Wagner law, an employer not only
had to consider all his workers as
still being employees even while on
strike, but could not offer them any
concessions except through the
union, though the members were
out on strike or were in state of
disagreement over contract terms
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