Evening star. [volume] (Washington, D.C.) 1854-1972, 1948-08-01
Interstote-LocoI Issue
Raised by Labor RuIino

Raised by Labor Ruling
Scope of Taft.Hartley Act Weighed in
Border-line Commerce" Cases
By Gerard d. Reilly
The problem Of drawing some rational line
between interstate business and business purely
local in character has been placed squarely
before the National Labor Relations Board BY
q decision of a trial examiner holding that
the operation of a California retail photo
graphic store affected commerce" within the
meaning Of the Taft-Hartley Act. The store
in question, the Al Photo Service CO. Of San
Pedro, Calf, employs only three clerks, sells
all but less than one-half of per cent Of its
stock within the State of California, but buys
$4,000 worth of merchandise from wholesalers
outside the State.
In finding that the board had Jurisdiction
over this concern, Trial Examiner Isadore
Greenberg adopted the position of General
Counsel Robert N. Denham, who recently tes.
tined before the Joint Committee on Labor
Management Relations that it was his duty
under the law to give full effect to various
Supreme Court decisions which have given an
extremely broad meaning to the commerce
clause. He argued that, since Congress in re-
enacting the Wagner Act had used even more
comprehensive language than in the Wage
Hour Act, he had no choice but to issue COM
plants whenever he found q very substan-
tial portion of retailers stock came to him
through the channels of interstate commerce,
even though such retailers market was purely
local Chairman Paul M. Herzog had urged
that the board should feel free to exercise
discretion If it found that the volume of COM
merce transacted by a particular employer was
relatively insignificant.
From q purely legal standpoint Mr.. Den.
hams argument appears to be the sounder.
Insofar as there is any discretion vested in
administrative officials under the statute it 10
in connection with the issuance of complaints.
This power is given the general counsel to bs
exercised when 1t appears that there Is evi-
dence to sustain charges of violation Of the
act. It has never been supposed however that
the question of what constitutes commerce Is
something which lies within the province Of
administrative bodies.
In his report, however, the trial examiner
indicates that he believes the board can decide
as matter of public policy whether or not
to assert jurisdiction. But he felt that such
considerations were not within the province Of
an examiner.
The more controversial aspects Of the trial
with regard to certain allegations in the COM
plant. The case presented the all-too-familiar
situation of a union insisting upon a renewal
Of closed-shop agreement after the ls47
amendments to the compulsory membership
features Of the Wagner Act had become effec-
tive. The employer refused on the ground that
this was contrary to law and the union brought
economic pressure to bear to compel him to
knuckle under.
Charges were then filed in the National La
Dor Relations Board regional Office. A COM
plant issued which not only charged the union
with refusing to bargain collectively in viola
ton Of section sob Gan allegation which
the examiner upheld because the union refused
to recede from its illegal demand-but also
with violations of section sob ca and sob 80.
Section sob 90 makes 1t an unfair labor
practice for a labor organization to cause or
attempt to cause an employer to discriminate
against an employee in violation of Section
(Bta(0. (ThiS is the subsection which for
bids employers to discriminate against en-
ployes to encourage or discourage union men,
bership, except where a valid union-shop agree
ment has been entered into pursuant to refer
endum directed by the board)
In the Baltimore Graphic Arts case, where
a campaign for closed-shop conditions had
Union. Chief Trial Examiner Ringer correctly
held that unions violated this subsection by
such tactics irrespective of whether or not en-
ployers succumbed to such pressure. Examiner
Greenberg, however, took the view that the
mere signing Of the closed-shop agreement
would not in itself constitute discrimination
and hence dismissed this allegation. His reason
ing was that under the old Wagner Act. which
made unfair labor practices by employers only
illegal, the board had held that entering into
discriminatory contract was a violation OF
Section Cd rather than Section (a) 90.
What he overlooked, however, was that In those
decisions the board never held that the execu-
ton OF an illegal contract was not also viola
ton of Section 8(a)(3 but merely that q
clearer and more adequate remedy existed
under Section SOD.
The text of Section sob Cd not merely pho
hibits unions causing employers to violate the
act but also the attempts to cause them to do
so. Obviously a strike to obtain q closed shop
contract would amount to such an attempt as
1t would set in motion train of circumstances
which would logically and inevitably produce
discrimination against nonunion employees and
nonunion applicants.
Even more surprising was the trial exam
liners holding that there had been no violation
Of Section 8(b)O of the act. This section
forbids unions to coerce or restrain employees
in the rights guaranteed to them by Section 7.
Among these is that Of being able to designate
collective bargaining representatives. Under
the old act the board had always held that
q refusal to bargain on the part of an en-
ployer amounted also to restraint upon the
rights guaranteed employees by this section.
The examiner took the position however.
that such holdings would not apply TO refusal
on the part OF union to bargain in the absence
Of any showing that the employees disapproved
Of Its conduct The board, however. when 1t
has found employers guilty of bad faith in
bargaining negotiations because Of the fact
that they granted wage increases without