Evening star., 1948-09-12
NlRB Finally Settles
Vexutious Labor Issue
New Ruling Denies Representation
Vote to Economic Strikers
By Gerard D. Reilly

New Ruling Denies Representation
Vote to Economic Strikers
By Gerard D. Reilly
The recent decision In the Time Square Corp.
case in which the NLRB again had occasion to
define the rights Of strikers under the Taft
Hartley law, has been the target Of 30 much
misinformed criticism that 1t would appear that
large segment of the press and public had
only dim understanding of the status of
strikers under the Wagner Act. The casa
itself involved q relatively small company
operating . chain Of retail shops in New York
City.
AS result of prior board certihcation, the
employees were represented by local Of United
Retail and Wholesale Employees, CIO, the Com
munist character of the leadership of which
has recently resulted in the international at
tempting to remove its local officers. Shortly
before the expiration Of its last contract this
union called strike for higher wages The
company was able to replace most of the
strikers.
Subsequently the new employees were organ
lied by a rival organization, the AFL Retail
Clerks. This union demanded recognition and
the employer filed petition for an election to
determine the bargaining representative of the
majority. Faced with the likelihood Of losing
resorted to an old dodge in order to prevent
the board from conducting a speedy election.
Under rules adopted long before the passage
of the new act, the board has policy against
conducting an election when charges of unfair
labor practices are pending against an employ.
er. This policy Is known to all labor organiza.
tionS and consequently many of them file
charges merely for the purpose of delay. II
upon investigation the charges prove to have
no merit they are then dismissed and the
board proceeds with an election. Meanwhile
the charging union has gained valuable time.
Should the preliminary investigation in
dicate some foundation for the charges,
however. complaint is issued and the election
indefinitely postponed until hearing and de-
cision on the unfair labor practice allegation.
As q result Of the Communist disclaimer
provisions In the new act, with which the CIO
union has not complied. It's officers were
aware that they could not use this dilatory
technique directly since the General Counsel
is forbidden to entertain charges from a nom
qualifying union. Instead the union hit upon
the device of having six members, who were
IN reality its agents, Ale unfair labor practice
charges as individuals. The General Counsels
Office saw through this transparent scheme of
Quite aside from the anti-Communist pro-
visions Of the new act, however. 1t is reason
ably clear that no complaint would have issued
in any event since the strike arose over wages
rather than over the infringement of any legal
right Of the workers. Hence under we'll settled
precedent, 1t would have been classified as an
economic rather than an unfair labor practice
strike
The board thereupon proceeded with the
election. The ballots of some 121 replacements
were challenged when the workers presented
themselves at the poll. The company and the
AFL union also challenged the ballots Of the
100 strikers on the ground that they were no
longer employees.
For years one OF the most controversial prob
lens with which the board has dealt was that
OF adopting some equitable policy when elec-
tions were being conducted In the midst of
strikes In the early history of the act the
board in the Sartorius decision decided the
only employees eligible to vote were those on
the payroll before the strike began. This rul.
ing had the effect Of excluding all the replace
ments and virtually perpetuated the striking
union In power, even though the strike had
been lost. The unfairness Of this holding led
the board several years later, when there had
been changes in its membership, to adopt an
ballots Of the strikers and the requirements.
This was the so-called Wurlitzer doctrine.
This practice, however, was difacult TO
reconcile with q decision of the Supreme
Court In the Mackey Radio case which dealt
with the power Of the board to reinstate
strikers. According to the court, If the strike
had been caused by unfair labor practices on
the part Of the employer, the board had
authority thA
turn to work Internationally, to order them
reinstated, even though the employer would
have to discharge requirements to make room
for them. II the strike arose, however, on some
bargainable dc. economic) issue, the board
was not empowered to order the employer TO
take back the strikers II their places had
actually been filled
For some curious reason, the application Of
the Wurlitzer doctrine In the light Of this
Supreme Court decision was never squarely lit
igated before the board In any other represen-
tation case for about five years, when the issue
arose during . strike In the moving picture
studios at Hollywood. BY that time the mem
bersnip Of the board had again completely
changed. As q result Of jurisdictional con-
troyersy between the painters and the stage
hands unions, the painters had quit the studios
and the producers had replaced them. Picket.
ing was still going on when the election was
held.
The majority Of the board decided to vote
both their replacements who were members OF
the stage hands union and the strikers, hold
ing that even though the Mackey Radio case
made 1t clear that the strikers had lost their
jobs they still must be regarded as employees
within the meaning Of the act, as the term
"employe" Is defined rs including . person
whose work has ceased as . result Of cur
rent labor dispute" The argument to the con.
trary was that the Mackey Radio case indicated
that even though the strikers were still picket-
ing, these particular men were no longer en-
n1oyeS their work had ceased not rnsreIv