Evening star. [volume], March 31, 1937, Page A-11, Image 11

About Evening star. [volume] (Washington, D.C.) 1854-1972

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Opinion Backs
Negotiation
in Industry
Court Says Congress
Has Right to Compel
Strike Curb.
BY DAVID LAWRENCE.
WHAT the Supreme Court did
on Monday in deciding by
unanimous vote that the
majority-rule provision of
th* railroad labor act was a valid
exercise of power by Congress is
necessarily limited to working condi
tions of an Instrumentality of inter
state commerce and not to all busi
nesses in interstate commerce, but
there were in that same opinion some
significant observations which may
have a direct bearing on collective
bargaining disputes such as recently
have led to “sit-down" strikes and
omer excesses oi
labor warfare.
First of all,
what is meant by
"majority rule?”
Usually labor
leaders claim it
means that if an
election is held
in a plant and 51
per cent of the
employes say
they want a cer
tain union com
mittee of indi
viduals to repre
sent them the
rest of the em
David Lawrence.
pioyes—irve ^y per cent—aic wunu ia»
accept the results of the election and
be bound by the contracts with the
employers for wages made in their
behalf by the majority spokesmen.
Employers dispute this interpreta
tion and say majority rule means that
the elected spokesmen may actr only
for the majority and that the minority
are free agents and can if they like
elect their own committee of spokes
men and negotiate with the employer.
Now the Supreme Court, being con
fronted with a statute which requires
the acceptance of the majority-rule
idea as related to an instrumentality
of commerce—a railroad—did not
attempt to rule what might be the
situation in other fields of law. But
It. is important to note that in con
struing the majority rule the Supreme
Court did say that when once there
was an election, a majority of those
actually voting could select spokes
men and these spokesmen are the
only ones with whom a collective
agreement applying generally to the
plant or business can be negotiated.
This is because the railroad labor act
specifically compels negotiation with
% majority’s spokesmen.
JLeaves inaiviauais tree.
What then becomes of the minority?
The Supreme Court declared that as
Individuals they were free to negotiate
for their own working conditions, but
they could not select a representative
purporting to speak for other employes.
It will be seen, therefore, that the
Supreme Court drew a distinction be
tween an exclusive bargaining privi
lege and an exclusive negotiation
by spokesmen on behalf of certain
employes who gave their assent. The
inference is plain that although em
ployes may not stay away from an
election and thus claim to be partici
pants in affecting the majority vote
—the Supreme Court holding that a
majority of those actually voting is
a true majority—there is nothing to
prevent an employe from withdrawing
his consent from a particular spokes- :
man or refraining from giving it in ■
the first instance.
Each workman has a right to make
his own contract and he may or may
not belong to a union. As a practical
matter, however, if there is an over
whelming number of union men in
his plant, he will not long remain an
Inconspicuous minority, hoping in
stead by the joining of a union to
make his voice and influence felt for
the things which may have previously
caused him to hold himself aloof. But
If the division is close and there is
a bare majority of, say 51 per cent,
the 49 per cent on a railroad unit may
now find it difficult to negotiate as
individuals. Can they employ agents
to represent several of them jointly?
Point Left Unclear.
This point is not cleared up by the
latest Supreme Court decision itself,
though this paragraph from the Mon
day opinion may have a bearing:
“Adair vs. United States and Cop
page vs. Kansas have no present ap
plication. The provisions of the rail
way labor act invoked here neither
compel the employer to enter into any
agreement nor preclude it from en
tering into any contract with individ
ual employes. They do not ‘interfere
with the normal exercise of the right
of the carrier to select its employes
or to discharge them.' ”
Now the Adair and Coppage cases
dealt with the right of an employer
to hire union or non-union men and
to make this a condition of contract
at the beginning of employment, some
thing that was upheld by the Supreme
Court on the ground that the employe
has as much right to refuse to accept
employment in a union or non-union
shop as has the employer the right
to choose a union or non-union work
er from the list of applicants. When
the Supreme Court this week said
plainly that the Adair and Coppage
News Behind the News
Hughes Hand Seen in Decisions—Comprehensive
Grouping Held Answer to New Deal Charges.
BY PAUL MALLON.
THOSE who know their certiorari* will tell you Chief Justice Hughes
has done as neat a Job of rebutting President Rooeevelt as eve r was
performed by a Judge upon an Executive.
The flock of Supreme Court rulings which came over the bench
all at once Monday could have been Joined together by natural circum
stances, but no legal authority believes they were. The remarkable executive
talents of Mr. Hughes are seen by all to be behind the comprehensive group
ing. Also to his inside leadership Is attributed the altered line of majority
thought on the bench.
The plain purport was to point the way in which New Dealing could
be done for the farmer and the laborer without packing the court or amend
ing the Constitution.
No court follower missed the point of how Mr. Roosevelt could accom
plish minimum wages, maximum hours, abolition of child labor, some farm
price fixing and farm mortgage protection, least of all the White House.
What the court had said sim
ply in various decisions was this:
The matter of farm price fix
ing may be handled constitutionally
by State Legislatures, to the extent
of fixing arbitrary minimum prices
(Virginia milk decision) The
States may also legislate to protect
labor with an arbitrary rule of
minimum wages and maximum
hours for men, women or chil
dren (Washington minimum wage
decision).
Interstate labor can be protected by the Federal Government, even to
the extent of forcing exclusive collective bargaining under majority rule
i Virginian Railway decision). As for farm mortgages, they can be carried
through this period of stress of Federal legislation (Franler-Iemke de
cision).
In a single day and a single grouping of decisions, the court seemed to
cover the range of New Deal ambitions.
* * * *
There are two sides to the. story of how the Supreme Court
came to change its mind on this. One is the legal side. Some legal
authorities are inclined to blame the lawyers who lost the New York
minimum wage case for not raising the Question on which the court
upheld the Washington minimum wage statute, which was far more
drastic than New York's law.
At any rate, courts, as a rule, do not go outside the evidence and argu
ments on their own initiative to decide questions which are not specifically
raised.
This, apparently, is the explanation why Justice Roberts voted against
the New York law a few months ago, but supported the Washington law
when the broader point was raised. He is the only justice who changed, but
his conversion was enough to change the court.
* * * *
The political side is that one of Mr. Roosevelt s most serious objections
to the court has now been answered. He complained that, when the court
ruled against the New York minimum wage law and declared Federal
minimum wage efforts unconstitutional (N. R. A. decision), it left a no
man’s land where no authority could regulate wages.
The court has now cut this contention out from under the Pres
ident's position. Together with the excavations preiHously made by
Chief Justice Hughes in his letter to Senator Wheeler, it indicates
the court reform argument may now involve a reorganization of
position by both sides.
* * * *
There was a time, after the spiritual folding of the Blue Eagle, when
many New Dealers suspected that a State, or at least a sectional, method of
meeting these wage and price problems might be more practical than Fed
eral action.
-RocsevElt
— P04ITIOW .
The N. R. A., for example,
found it could not apply the same
wage and price standards to work
ers living in the East under one
standard of living and in the South
or West under two different
standards.
Similarly, that Virginia milk
statute is supposed to be one which
was inspired by the A. A. A. crowd
after they discovered escrly in the
New Deal game that they could not
adopt the same milk price standards for every section of the country, mey
had to divide the country into marketing areas.
However, many of these old believers in the practicability of sectional
action to meet sectional conditions have passed from the new order and few
heretics remain in official life who fail to believe the Federal Government
does everything better than any one else.
A movement is afoot to have Senator Ashurst amend his statement
that no one can change positions faster than he. The correction being
suggested in the cloak room is that he give credit where credit is due and
add the name of Justice Roberts.
(Copyrisht, 19.37.)
cases "‘have no present application"
! it was tantamount to saying that the
: court found no necessity for overrul
ing these decisions of 1908 and 1914.
Minority Protected.
What the unanimous opinion this
! week really did was to say that Con
| gress had a right to insist on com
! pulsory negotiation, that railroad em
ployers could be required by law "to
treat with” the spokesmen of a ma
jority of their employes, but that Con
gress could not compel the parties to
reach an agreement nor could Con
gress deprive a minority of the work
men of their right to "treat with"
their employers provided the minority
did not seek collective or group rights
which purported to make a rule as
applying to general working conditions
in which the majority spokesmen had
been designated as the “true repre
sentative."
In other words, in the case of a rail
roads, which is, of course, directly un
der Government regulation, the power
of a minority to impair or interfere
with the negotiations conducted by a
majority was to be limited, though
their rights as individuals—and doubt
less this covers the rights of their
duly chosen agents—were not to be
curtailed.
It would appear that the Supreme
Court has pointed to compulsory ne
gotiation as an essential pre-requisite
to industrial peace. Congress and
the States will not be slow to take the
J hint in future labor legislation. Along
I with compulsory recognition or ne
gotiation of majorities in industrial
units, however, would no doubt come
some form of legislation, such as is
already included in the railway labor
act, which definitely limits the right
to strike until certain processes of
mediation have been exhausted by
both sides, a circumstance that makes
virtually illegal anything in the na
ture of an arbitrary “shut-down" or
"sit-down."
(Copyright. 1937.)
_
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CTHE opinions of the writers on this page are their own, not
necessarily The Star’s. Such opinions are presented in
The Star’s effort to give all sides of questions of interests its
readers, although such opinions may be contradictory among
themselves and directly opposed to The Star’s.
Heartening Decisions
Supreme Court Discloses it Does Not Oppose Fresh
Interpretations.
BY DOROTHY THOMPSON.
THE Supreme Court, leu than a
year ago, declared the New
York State minimum wage law
for women unconstitutional by
a flve-to-four decision. Monday by a
flve-to-four decision it declared the
Washington minimum wage law con
stltutionai. inn
former decision
was based upon a
previous decision
in the Adkins
case, made in
1923 by a court
whose personnel
was not identical
with the present
one.
A minority of
the court last
year believed that
the New York
statute was dis
ting uishable in
m a t e r ial ways
Dorothy Thompson.
_
from me Adkins —
Court of Appeals In New York Itself
had held the New York act to be un
constitutional, so that the Supreme
Court was upholding the decision of a
State court in regard to a State law.
Now, in sitting upon the Washington
case, it had to consider a law which
the Supreme Court of that State had
upheld as constitutional, the State
court in Washington having refused to
regard the Supreme Court decision in
the Adkins case as determinative.
There was, therefore, the case of the
Supreme Court of a State being in
conflict with the Supreme Court of the
United States, and this was certainly
a reason why the Supreme Court
should reconsider, especially as its de
cision had been almost universally de
plored throughout the country on a
perfectly non-partisan basis, and the
decision had caused the suggestion of
an amendment to be written in the
platform of both political parties.
In no rase, therefore, can the
changed decision of the Supreme
Court be regarded as yielding to par
tisan political pressure.
Fresh Interpretation.
The moat interesting and encour
aging feature of the new decision is
that it gives a fresh interpretation to
the due process clause of the four
teenth amendment, an interpretation
which may, by inference, be extended
to the fifth amendment.
It has been the contention of liber
als—a contention which this column
believes to be sustained by many court
decisions—that the due process clause
has often been used to protect prop
erty in a too narrow sense of the
term, treating property as though its
ownership and management were
completely free from any social re
sponsibilities.
The majority decision Monday has a
few sentences of great value. It says:
“The Constitution does not speak of
freedom of contract. It speaks of lib
erty and prohibits the deprivation of
liberty without due process of law. In
prohibiting that deprivation, the Con
stltution does not recognize an abso
lute and uncontrollable liberty.
The liberty safeguarded Is liberty In
a social organization. • • • Liberty un
der the Constitution is thus neces
sarily subject to the restraints of due
process said to regulation which is rea
sonable. Liberty Implies the absence
of arbitrary restraint, not immunity
from reasonable regulations.”
In commenting upon the majority
decision last June this column said:
“The majority argument is disturb
ing. It is founded upon freedom of
contract and an eighteenth century
Interpretation of that phase. The
same argument was brought up
against all the protective legislation
introduced 50 years ago in Germany
and England, but it has not been
heard elsewhere for a generation. No
modern interpretation of competitive
economy includes the right to pay
labor J^ss than must, by the very na
ture of things, be paid to a machine!
For machines must be maintained!
Competition starts with rules, one
cannot throw human bones and blood
into the scales. The decision is dis
turbing because of possible public
reaction. The great danger exists
that a revolt against the decision will
become a revolt against the Supreme
Court, which for 150 years has helped
to stabilize this Republic, and repub
lics are not, historically considered,
strong institutions. No republic can
last without standards, without some
ultimate authority to which to appeal.”
Ainu face Beauty.
And it was on the basis of that de
cision that this column ventured a
prophesy:
"We must face the reality of a crisis
in government. If we do not face it
the Supreme Court may be under
mined directly or, worse, by indirec
tion. Indirectly, for Instance, its
membership may be extended, thereby
turning it admittedly into a political
body."
That the Supreme Court itself has
had the courage to reverse a previous
decision on the basis of further
thought, knowing as it did so that it
would throw itself open to charges
of yielding to threat, is a heartening
thing. There is nothing new in it.
Decisions have been reversed before
in our history.
The present one is upheld unani
mously. In rejecting the first bill the
Supreme Court enumerated mort
gagees’ rights, which were five in
number and made it clear that the
protection of those rights did not out
law alleviation to the farmers in the
form of a moratorium, but that the
moratorium must offer protection for
those rights. It was on the basis of
that decision that the legislators were
able to draft another bill. This deci
sion indicates that the Supreme Court
is conscious that new conditions re
quire new laws regulating economic
relationships.
But the two decisions on the two
Frazier-Lemke bills show that the
court realizes that legislation must not
take the form of a chaotic redistribu
tion of privileges.
CCopyrlght, 1937.)
This Changing World
French and British Hopes for U. S. Entrance Into
European Mess Are Revived.
BY CONSTANTINE BROWN.
THE departure for Europe of Norman H. Davis, the President's "peace
dove," on sn alleged sugar conference mission, and the return of
William Bullitt to his post In Paris after a long conversation with
Mr. Roosevelt at Warm Springs, has revived the hopes at Prance
and Oreat Britain that the United States shortly may take a hand In the
European mess.
There is no doubt that the President Is deeply concerned about Euro
pean affairs. His sympathies are with the democracies of Europe—Prance
and Oreat Britain.
His representatives abroad havs been trying to establish some sort
at a link between the present economic situation of Europe and the
armament race, iney nopea uiai
the strain on the finances of Ger
many and Italy will be such that
within a reasonably short period
these two countries will beg for
mercy and welcome the Idea of a
limitation of arms conference.
These were hopes expressed by
our diplomats in most of their com
munications to Washington, but
somehow or other there are no
signs yet that the two dictators
have reached the point where they want to place the future or their
countrlea at the mercy of an International conference.
There it an increased feeling in Italy and in Germany that
should these countries agree to enter into an international con
ference, they will get the worst of it. This feeling is due mostly to
the fact that they believe that this country is sternly opposed to the
system of government prevailing in the Central European dictator
ships and that at an international gathering France and Great
Britain, with the assistance of the United States, will have the whip
hand.
Norman Davis will spend some time in London and in Paris to find
out what the actual layout la
* * * *
While the Italian* are taking their participation in the Spanish civil
war seriously, the Germans are using it a* a convenient maneuver area
for a tryout of their air force on a miniature scale.
This includes not only the exercise or aircraft types, old. new and
experimental, but also of every single item of ancillary equipment con
nected with armament.
Spain is their laboratory, where radio, photography, etc., togeth
er with full practice of personnel, both ground and air, are being
tested.
The Germans form a completely self-contained organization
with headquarters at Seville and keep very much to themselves.
Their uniforms are plain khaki without insignia except those indi
cating rank.
Every two months the pilots and crews return to their native land and
are replaced by others.
a a a a
The Italian national press has become a "service" organization almost
like the army, the navy and the diplomatic corps Changes, transfers and
promotions are on a "service’’ basis. It is easy for an Italian newspaper
man to be transferred to a diplomatic po6t, then return to the composing
room.
A thorough change in the personnel of the Italian press is being
prepared now. Virgilio Gayda, the editor of the Giornale d'ltalia and
Mussolini's spokesman for the press, is slated to get an important am
bassadorship. Amicuccl, the editor of the Gazetta de Popolo, will be given
an undersecretaryship in an important ministry to make him more fa
miliar with the innerworks of the Fascist government machinery. Alfredo
Signorettl, the political writer for
the Stampa of Turi/i, will also be
given a diplomatic post.
Editors of provincial news
papers are being transferred to
Rome while Roman editors and
writers are being sent for a term of
years to provincial newspapers.
Despite the war rumors and
revolutionary scares, the coronation
festivities in London and the Paris
exhibition are attracting such a
large numDer oi American tourists tnai tnere is not a single state room
available on any of the ships going to Europe from May to August.
7n London, hotels, apartments and boarding houses are booked
up to their capacity.
The foreign office and the home office are worried sick about the
housing problems which are brought to them every day. The
official guests demand much more space than it was thought at first.
The latest blow which has fallen on the foreign office is the announce
ment that his highness the Sultan of Yemen—Arabia—will attend the
coronation festivities accompanied not only by a large staff of servants,
cooks, bodyguards and whatnot, but also by 75—the youngest—ladies of
his harems and 10 eunuchs. And he indicated that he wishes to be
housed in a palace with a large garden, shady trees and some spring
fountains if possible.
Headline Folk
and What
They Do
Justice Owen J. Roberts
Human Crux of Su
preme Court Power.
BY LEMUEL F. PARTON.
BOTH the loose and tight con
structionists In the Supreme
Court Issue, and everybody in
between, figured in everything
but the imponderables.
Soon after Owen J. Roberts was
named for the Supreme Court, in May,
1930, his friend, George Wharton Pep
per, wrote of him:
"Roberts ought not to be classified
as a liberal or a conservative. By that
Justice Robert*.
I mean that,
while all groups
will find h i m
friendly, none will
ever be able to
claim him a* an
ally.”
His controlling
vote in the Su
preme Court vali
dation of the
Washington mini
mum wage law is
one of 17 which
have r e v e a le d
him as standing
even closer* to
fulcrum of court
power than Chief Justice Hughes.
"The Constitution is what Justice
Roberts says it is." as one Washing
ton correspondent put it. He began
to be recognized as the key man of
the court when his controlling vote in
validated the railroad pension act on
May 11. 1935. His, in Romeo's line, is
"A greater power than we can contra
dict.”
Bertrand Russell, fashioning his
“chance" theory of history, will flna
another item here. It was chance
that made Owen J. Roberts a member
of the Supreme Court, with all that
now Implies, and all that may derive
from Mr. Justice Roberts’ single potent
word. President Hoover named John
J. Parker, a North Carolina Judge.
Charges of anti-Negro and anti-labor
bias were made against Judge Parker.
There was a hotly-fought battle in the
Senate on confirmation. By a vote of
41 to 39. confirmation was refused.
After the railroad pension act de
cision, the late Theodore Wallen, one
of the most astute of Washington
correspondents, wrote:
"The latest decision of the court
has heightened administration un
easiness over the national recovery
administration. Many think it wall
turn, in the final analysis, on the
decision of one man—Associate Justice
Roberts."
This writer saw Owen J Roberts
prosecuting Fall, Dohenv et al. in the
case which gave him national promi
nence and revealed his Supreme Court
suture. He Ulked easily and infor
mally, with his hands in his pockets.
He is a big man. roughly blocked
out in features and person, of Penn
sylvania German and Welsh antece
dents.
He was a director of many corpora
tions when President Hoover named
j him for the court. Re brought all this
! out in the open, and everything wu
squared before he accepted the ap
pointment.
(Copyright. 1931.(
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