Evening star., 1949-03-03
Decision on Limits
OF Right TO Strike
Seen as Milestone
High Court in Effect
UphoIds Power Of
State to Police Affairs
By David Laurence

When the Supreme Court makes
q ruling on how far the right
to strike can be used by unions
and to what extent the several
States have retained their rights
to police labor management dis
putes, notwithstanding the exer-
else Of Federal power in the Wag-
ner Act and the Taft-Hartley law
the decision can be described as
q milestone in constitutional law
The case under consideration
arose in Wisconsin in 1946, while
the Wagner Act was in force and
before the Taft-Hartley Act was
passed. An auto workers union
engaged in intermittent work
stoppages by calling repeated spe-
cial meetings of the union during
working hours without warning
to the employer or notice as to
when or whether the employees
would return to work. Such meet
ings were called on 26 occasions
In four successive months.
This procedure was publicly de-
scribed by the union leaders as
"a new technique for bringing
pressure on the employer"
Chief Justice Vinson, Justices
Reed, Burton, Frankfurter and
Jackson denounced this device as
coercive and within the power OF
any State to forbid by law. JUS
tices Black. Murphy, Rutledge and
Douglas upheld the method as
coming within the right to strike
as protected by Federal law and
not subject to State interference.
Apparently Back Brandeis.
The majority apparently be-
lieve with Justice Brandeis, the
famous liberal jurist, that neither
the common law. nor the 14th
amendment, confers the absolute
right to strike The majority
opinion. written by Justice Jack
son, says:
f The right to strike. because OF
its more serious impact upon the
public interest, is more vulnerable
to regulation than the right to
organize and select representatives
for lawful purposes Of collective
bargaining which this court has
characterized as a fundamental
right and which, as the court has
pointed out, was recognized as
such in its decisions long before
1t was given protection by the
Wagner Act"
The majority opinion further
declares that the right to strike
plainly contemplates a lawful
method and does not operate to
legalize the sit-down strike, which
State law made illegal and State
authorities punished. Justice Jack
son adds:
IF we were " to make the
strike an absolute right and the
definition to extend the right to
all other variations Of the strike,
the effect would be to legalize be-
yond the power of any State or
Federal authorities to control not
only the intermittent stoppages
such as we have here but also the
showdown and perhaps the sit
down strike as well -
1--WE think that this recurrent
or intermittent unannounced
stoppage Of work to win unstated
ends was neither forbidden by
Federal statute nor was it legal
lied and approved thereby. Such
being the case. the State police
power was not superseded by con-
eressional act over a subject nor
mally within its exclusive power
and reachable by Federal regu-
lation only because of its effects
on that interstate commerce which
Congress may regulate"
Explicit Limit.
Here is the first explicit limit
declared in many years with re-
spect to the powers Of Congress
over acts growing out Of labor
disputes. Here Is a hint that
"effects on interstate commerce"
will yet have to be proved to estab-
lish unlimited power by the Fed
eral Government over labor-man-
agement relations and that, as
regards conduct approaching CO.
ercion or violence or damage to
property. the power OF the States
to police their own affairs has by
no means been destroyed, even by
the New Deal court.
One minority opinion was writ
ten by Justice Douglas and con-
Cured in by Justices Black and
Rutledge. Justice Douglas sur
prised the country by making a
quasipolitical speech recently be-
fore the annual CIO national con-
vention. Another minority opinion
was written by Justice Murphy
under whom, as Governor of
Michigan. sit-down strikes were
permitted. Justice Murphy says:
But the court. by its reason
ing and its quotation from con-
gressional report, now makes in
termittent work stoppageS the
equivalent of mutiny, contract
breaking and the sit-down strike.
It stretches the 'objectives and
means test to include a form Of
pressure which is peaceful and
direct - to impute this rationale
to the Congress which enacted the
Wagner Act is. in my opinion,
judicial legislation Of an extreme
form"
Thus do four justices turn the
clock back to the days Of sit-down
strikes and wildcat strikes and
encourage unions to believe these
are all lawful parts Of the right
to strike
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