Evening star. [volume], April 13, 1937, Page A-6, Image 6

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DIGEST OF MAJORITY OPINIONsIn WAGNER LABOR CASES
HE digest of the majority opin
ion. upholding the Wagner la
bor regulations act In the
Jones <fc Laughlin Steel Corp.
ease, as delivered by Chief Justice
Hughes, follows:
In a proceeding under the national
labor relations act of 1935, the Na
tional Labor Relations Board found
that the petitioner, Jones & Laughlin
Steel Corp., had violated the act by
engaging in unfair labor practices
affecting commerce. The proceeding
was instituted by the Beaver Valley
Lodge, No. 200, affiliated with the
Amalgamated Association of Iron,
Steel and Tin Workers of America, a
labor organization. The unfair labor
practices charged were that the cor
poration was discriminating against
members of the union with regard to
hire and tenure of employment, and
was coercing and intimidating its em
ployes in order to interfere with their
self-organization. The discriminatory
and coercive action alleged was the
discharge of certain employes.
The National Labor Relations Board,
sustaining the charge, ordered the cor
poration to cease and desist from
such discrimination and coercion, to
offer reinstatement to 10 of the em
ployes named, to make good their
losses in pay and to post for 30 days
notices that the corporation would
not discharge or discriminate against
members, or those desiring to become
members, of the labor union. As the
corporation failed to comply, the board
petitioned the Circuit Court of Ap
peals to enforce the order. The court
denied the petition, holding that the
order lay beyond the range of Federal
power. 83 F. (2d), 998. We granted
certiorari.
Provides Rights of Workers
To Bargain Collectively,
The scheme of the national labor
relations act—which is too long to
be quoted in full—may be briefly
stated. The first section sets forth
findings with respect to the injury to
commerce resulting from the denial
by employers of the right of employes
to organize and from the refusal of
employers to accept the procedure of
collective bargaining. There follows
a declaration that it is the policy of
the United States to eliminate these
causes of obstruction to the free flow
or commerce. The act then defines
the terms it uses, including the terms
"commerce” and “affecting commerce.”
Section 2. It creates the National La
bor Relations Board and prescribes its
organization. Sections 3-6. It sets
forth the right of employes to self
organization and to bargain collec
tively through representatives of their
own choosing. Section 7. It defines
"unfair labor practices." Section 8. It
lays dow'n rules as to the representa
tion of employes for the purpose of
collective bargaining. Section 9. The
board is empowered to prevent the de
scribed unfair labor practices affect
ing commerce and the act prescribes
the procedure to that end. The board
is authorized to petition designated
courts to secure the enforcement of its
order. The findings of the board as
to the facts, if supported by evidence,
are to be conclusive.
If either party on application to the
court shows that additional evidence
is material and that there were rea
sonable grounds for the failure to ad
duce such evidence in the hearings
before the board, the court may order
the additional evidence to be taken.
Any person aggrieved by a final order
of the board may obtain a review in
the designated courts with the same
procedure as in the case of an appli
cation by the board for the enforce
ment of its order. Section 10. The
board has broad powers of investiga
tion. Section 11. Interference with
members of the board or its agents in
the performance of their duties is pun
ishable by fine and imprisonment. Sec
tion 12. Nothing in the act is to be
construed to interfere with the right
to strike. Section 13. There is a sep
arability clause to the effect that if
any provision of the act or its appli
cation to any person or circumstances
shall be held invalid, the remainder of
the act or its application to other per
sons or circumstances shall not be af
fected. Section 15. The particular
provisions which are involved in the
Instant case will be considered more in
detail in the course of the discussion.
Board Charges Unfair
Labor Practices.
The procedure In the instant case
followed the statute. The labor union
filed with the board its verified
charge. The board thereupon issued
its complaint against the respondent,
alleging that its action in discharg
ing the employes in question consti
tuted unfair labor practices affecting
commerce w'ithin the meaning of sec
tion 8, subdivisions (1) and (3), and
section 2, subdivisions <b) and (I)
of the act. Respondent, appearing
specially for the purpose of objecting
to the jurisdiction of the board, filed
Its answer. Respondent admitted the
charges, but alleged that they were
made because of inefficiency or viola
tion of rules or for other good rea
sons and were not ascribable to union
membership or activities. As an
affirmative defense respondent chal
lenged the constitutional validity of
the statute and its applicability in
the instant case. Notice of hearing
was given and respondent appeared
by counsel. The board first took up
the issue of Jurisdiction and evidence
was presented by both the board and
the respondent. Respondent then
moved to dismiss the complaint for
lack of jurisdiction and, on denial
of that motion, respondent in ac
cordance with its special appearance
withdrew from further participation
In the hearing. The board received
evidence upon the merits and at its
close made Its findings and order.
Contesting the ruling of the board,
the respondent argues (1) that the act
Is in reality a regulation of labor re
lations and not of interstate com
merce: (2) that the act can have no
application to the respondent’s rela
tions with its production employes
because they are not subject to regu
lation by the Federal Government:
and (3) that the provisions of the act
violate Section 2 of Article III and
the fifth and seventh amendments of
the Constitution of the United States.
The facts as to the nature and
scope of the business of the Jones &
Laughlln Steel Corp. have been found
by the Labor Board and, so far as
they are essential to the determina
tion of this controversy, they are not
In dispute. The Labor Board has
found: The corporation is organized
under the laws of Pennsylvania and
has its principal office at Pittsburgh.
It is engaged in the business of manu
facturing iron and steel in plants
situated in Pittsburgh and nearby
Aliquippa, Pa. It manufactures and
distributes a widely diversified line of
steel and pig-iron, being the fourth
largest producer of steel in the United
States. With its subsidiaries—19 In
number—it is a completely integrated
enterprise, owning and operating ore,
coal and limestone properties, lake
and river transportation facilities and
r
terminal railroads located at Its man
ufacturing plants. • • *
Self-Contained, Highly
Integrated Body.
Summarizing these operations, the
Labor Board concluded that the works
: in Pittsburgh and Aliquippa might
be likened to the heart of a self
contained, highly integrated body.
They draw in the raw materials from
Michigan, Minnesota, West Virginia,
Pennsylvania in part through arteries
and by means controlled by the re
spondent; they transform the ma
terials and then pump them out to
all parts of the Nation through the
vast mechanism which the respondent
has elaborated."
To carry out its activities 33,000 men
mine ore, 44,000 men mine coal,
4,000 men quarry limestone, 16,000
men manufacture coke, 343,000 men
manufacture steel and 83,000 men
transport its product. Respondent has
about 10,000 employees in its Aliquippa
plant, which is located in a community
of about 30,000 persons. • • •
Employes Were Active
Leaders in Union.
Practically all the factual evidence
in the case, except that which dealt
with the nature of respondent's busi
ness, concerned its relations with the
employes in the Aliquippa plant whose
discharge was the subject of the com
plaint. These employes were active
leaders in the labor union. Several
were officers and others were leaders
of particular groups. Two of the em
ployes were motor inspectors; one was
a tractor driver; three were crane op
erators: one was a washer in the coke
plant, and three were laborers. Three
other employes were mentioned in the
complaint, but it was withdrawn as to
one of them, and no evidence was
heard on the action taken wdth re
spect to the other two.
While respondent criticizes the evi
dence and the attitude of the board,
which is described as being hostile
toward employers, and particularly
toward those who insisted upon their
constitutional rights, respondent did
not take advantage of its opportunity
to present evidence to refute that
which was offered to show discrimina
tion and coercion. In this situation,
the record presents no ground for set
ting aside the order of the board so
iar as me iacis pertaining 10 me cir
cumstances and purpose of the dis
charge of the employes are concerned.
Upon that point it is sufficient to say
that the evidence supports the find
ings of the board that respondent dis
charged these men "because of their
union activity and for the purpose of
discouraging membership in the
union.” We turn to the questions of
law which respondent urges in con
testing the validity and application of
the act.
First. The scope of the act.—The
act is challenged in its entirety as an
attempt to regulate all industry, thus
invading the reserved powers of the
States over their local concerns. It is
asserted that the references in the act
to interstate and foreign commerce
are colorable at best; that the act is
not a true regulation of such commerce
or of matters which directly affect it
but on the contrary has the funda
mental object of placing under the
compulsory supervision of the Federal
Government all industrial labor rela
tions within the Nation. The argu
ment seeks support in the broad words
of the preamble (section one) and in
the sweep of the provisions of the act,
and it is further insisted that its legis
lative history show's an esential uni
versal purpose in the light of which its
scope cannot be limited by either con
struction or by the application of the
separability clause.
If this conception of terms, intent
and consequent inseparability were
sound, the act w'ould necessarily fall
by reason of the limitation upon the
Federal power which inheres in the
constitutional grant, as well as because
of the explicit reservation of the
tenth amendment. Schechter Corp. vs.
United States, 295 U. S 495, 549, 550.
554. The authority of the Federal
Government may not be pushed to
such an extreme as to destroy the
distinction, which the commerce clause
itself establishes, between commerce
“among the several States” and the
internal concerns of a State. That
distinction between what is national
and what is local In the activities
of commerce is vital to the mainte
nance of our Federal system. Id.
Principal Is to Save and
Not to Destroy.
But we are not at liberty to deny
effect to specific provisions, which
Congress has constitutional power to
enact, by superimposing upon them
inferences from general legislative
declarations of an ambiguous char
acter, even if found in the same
statute. The cardinal principle of
statutory construction is to save and
not to destroy. We have repeatedly
held that as between two possible
interpretations of a statute, by one
of which it would be unconstitutional
and by the other valid, our plain duty
is to adopt that which will save the
act. Even to avoid a serious doubt
the rule is the same. Federal Trade
Commission vs. American Tobacco
Co., 264 U. S. 298. 307; Panama R. R.
Co. vs. Johnson, 264 U. S. 375. 390;
Missouri Pacific R. R. Co. vs. Boone,
270 U. S. 466, 472; Blodgett vs. Holden,
275 U. S. 142, 148: Richmond Screw
Anchor Co. vs. United States, 275
U. S. 331, 346.
We think it clear that the national
labor relations act may be construed
so as to operate within the sphere of
constitutional authority. The jurisdic
tion conferred upon the board, and
invoked in this instance, is found in
section 10 (a), which provides:
"Section 10 (a). The board is em
powered, as hereinafter provided, to
prevent any person from engaging in
any unfair labor practice (listed in
section 8) affecting commerce.”
The critical words of this provision,
prescribing the limits of the board’s
authority in dealing with the labor
practices, are "affecting commerce."
The act specifically defines the "com
merce” to which it refers (section
2 (6) ):
"The term 'commerce means trade,
traffic, commerce, transportation, or
communication among the several
States, or between the District of Co
lumbia or any territory of the United
States and any State or other territory,
or between any foreign country and
any State, territory or the District of
Columbia, or within the District of Co
lumbia or any territory, or between
points in the same State, but through
any other State or any territory or
the District of Columbia or any
foreign country.”
There can be no question that the
commerce thus contemplated by the
act (aside from that within a terri
tory or the District of Columbia) is
Interstate and foreign commerce in
the constitutional sense. The act also
defines the term "affecting commerce”
(section 2 (7));
"The term ‘affecting eommeree’
means in commerce, or burdening or
obstructing ooaunsrce or the tm flow
I
of commerce, or having led or tending
to lead to a labor dispute burdening
or obstructing commerce or the free
flow of commerce.”
Definition One of Exclusion
Ax Well as inclusion.
This definition is one of exclusion
as well as inclusion. The grant of
authority to the board doe* not pur
port to extend to the relationship be
tween all industrial employes and em
ployers. Its terms do not Impose col
lective bargaining upon all industry
regardless of effects upon interstate
or foreign commerce. It purports to
reach only what may be deemed to
burden or obstruct that commerce and,
thus qualified, it must be construed
as contemplating the exercise of con
trol within constitutional bounds. It
is a familiar principle that acts which
directly burden or obstruct Interstate
or foreign commerce, or its free flow,
are within the reach of the congres
sional power.
Acta having that effect are not ren
dered immune because they grow out
of labor disputes. See Texas & N. O.
R. Co. vs. Railway Clerics, 281 U. S.
548, 570; Schechter Corp. vs. United
States, supra, pp. 544, 545; Virginian
Railway vs. System Federation, No.
40, decided March 29, 1937. It is the
effect upon commerce, not the source
of the injury, which is the criterion,
i Second Employers’ Liability Cases, 223
U. S. 1, 51. Whether or not particu
lar action does affect commerce in
such a close and intimate fashion as
, to be subject to Federal control, and
hence to lie within the authority con
ferred upon the board, is left by the
statute to be determined as individual
cases arise. We are thus to inquire
whether in the Instant case the con
stitutional boundary has been passed.
Second. The unfair labor practices
in question.—The unfair labor prac
tices found by the board are thc*e
defined in section 8, subdivisions (1)
and (3). These provide:
"Section 8. It shall be an unfair
labor practice for an employer—
*'(1) To interfere with, restrain, or
coerce employes in the exercise of
the rights guaranteed in section 7.”
IJ) By discrimination in regard
to hire or tenure of employment or
any term or condition of employment
to encourage or discourage member
ship in any labor organization. . .
Employe* Shall Have Right
To Self-Organization.
Section 8, subdivision (1), refers to
section 7, which is as follows:
“Section 7 Employes shall have
the right to self-organization, to form,
join or assist labor organizations, to
bargain collectively through repre
sentatives of their own choosing, and
to engage in concerted activities, for
the purpose of collective bargaining
or other mutual aid or protection.”
Thus, in its present application, the
statute goes no further than to safe
guard the right of employes to self
organization and to select representa
tives of their own choosing for col
lective bargaining or other mutual
protection without restraint or co
ercion by their employer.
This is a fundamental right. Em
ployes have as clear a right to or
ganize and select their representatives
for lawful purposes as the respondent
has to organize its business and select
its own officers and agents. Discrimi
nation and coercion to prevent the
free exercise of the right of employes
to self-organization and representation
is a proper subject for condemnation
by competent legislative authority.
Long ago we stated the reason for
labor organizations. We said that
they were organized out of the neces
sities of the situation: that a single
employe was helpless in dealing with
an employer; that he was dependent
ordinarily on his daily wage for the
maintenance of himself and family:
that if the employer refused to pay
him the wages that he thought fair,
he was nevertheless unable to leave
the employ and resist arbitrary and
unfair treatment; that union was es
sential to give laborers opportunity to
deal on an equality w'ith their em
ployer. American Steel Foundries v.
Tri-City Central Trades Council, 257
U. S. 184, 209. We reiterated these
views when we had under considera
tion the railway labor act of 1926.
Fully recognizing the legality of col
lective action on the part of employes
in order to safeguard their proper in
terests, we said that Congress was not
required to ignore this right, but could
safeguard it. Congress could seek to
make appropriate collective action of
employes an instrument of peace
rather than of strife. We said that
such collective action would be a
mockery if representation were made
futile by interference with freedom of
choice.
Hence the prohibition by Congress
of interference with the selection of
representatives for the purpose of
negotiation and conference between
employers and employes, "instead of
being an invasion of the constitutional
right of either, was based on the
recognition of the rights of both.”
Texas Si N. O. R. Co. vs. Railway
Clerks, supra. We have reasserted
the same principle in sustaining the
application of the railway labor act as
amended in 1934. Virginia Railway
Co. vs. System Federation No. 40,
supra.
Application to Employes
Engaged in Production.
Third. The application of the act to
employes in production.—The prin
ciple involved—Respondent says that
whatever may be said of employees
engaged in interstate commerce, the
industrial relations and activities in
the manufacturing department of re
spondent's enterprise are not subject
to Federal regulation. The argument
rests upon the proposition that manu
facturing in itself is not commerce.
The Government distinguishes these
cases. The various parts of respond
ent’s enterprise are described as inter
dependent and as thus involving "a
great movement of iron ore, coal and
limestone along well-defined paths to
the steel mills, thence through them,
and thence in the form of steel prod
ucts into the consuming centers of the
country—a definite and well-under
stood course of business.” It is urged
that these activities constitute a
"stream” or "flow” of commerce, of
which the Allquippa manufacturing
plant Is the focal point, and that in
dustrial strife at that point would
cripple the entire movement. Refer
ence is made to our decision sustaining
the packers and stockyards act. Staf
ford vs. Wallace, 258, United States
496. The court found that the stock
yards were but a “throat’ through
which the current of commerce flowed
and the transactions which there oc
curred could not be separated from
that movement. • • •
Instant Case Presents
Material Distinctions.
Respondent contends that the in
stant case presents material distinc
tions. Respondent says that the All
quippa plant Is extensive in etae and
represscta a large investment la
■ -----—1 <
Watson Goes Back to Work
Morris Watson, discharged Associated Press employe, who returned to work today as result of
the Supreme Court decision that the Wagner labor relations act was constitutional, get his new
assignment from Byron Price (left), executive news editor of the Associated Press.
__ —Copyright, A. P. Wirephoto.
building*, machinery and equipment.
The raw materials which are brought
to the ^jjant are delayed for long
periods and, after being subjected to
manufacturing processes, "are changed
substantially as to character, utility
and value.” The finished products
which emerge "are to a large extent
manufactured without reference to
pre-existing orders and contracts and
are entirely different from the raw
materials which enter at the other
end.” Hence respondent argues that
"if importation and exportation in
Interstate commerce do not singly
transfer purely local activities into
I the field of congressional regulation,
it should follow that their combina
tion would not alter the local situa
tion.”
We do find it necessary to determine
whether these features of defendant's
business dispose of the asserted analogy
to the "stream of commerce" cases,
j The instances in which that metaphor
| has been used are but particular, and
j not exclusive, illustrations of the pro
| tective power which the Government
j invokes in support of the present act.
j The congressional authority to pro
leci uiiersiaie commerce irom ouraens
and obstructions is not limited to
■ transactions which can be deemed to
be an essential part of a "flow” of in
terstate or foreign commerce. Burdens
and obstructions may be due to in
jurious action springing from other
sources. The fundamental principle
is that the power to regulate commerce
is the power to enact "all appropriate
legislation” for “its protection and
advancement.” * • •
Although activities may be Intra
state in character when separately
considered, if they have such a close
and substantial relation to interstate
commerce that their control Is essen
tial or appropriate to protect that
commerce from burdens and obstruc
tions. Congress cannot be denied the
power to exercise that control. Schech
ter Corp. vs. United States, supra.
Undoubtedly the scope of this power
must be considered in the light of our
dual system of government and may
not be extended so as to embrace
effects upon interstate commerce so
indirect and remote that to embrace
them, in view of our complex society,
would effectually obliterate the dis
tinction between what is national and
what is local and create a completely
centralized government. Id. The ques
tion is necessarily one of degree. As
the court said in Chicago Board of
Trade vs. Olsen, supra, p. 37, repeat
ing what had been said in Stafford vs.
Wallace, supra: "Whatever amounts
to more or leas constant practice, and
threatens to obstruct or unduly to
burden the freedom of Interstate com
merce is within the regulatory power
of Congress under the commerce clause
and it is primarily for Congress to
consider and decide the fact of the
danger and meet it.”
Commerce Commission
Is Given Powers.
That intrastate activities, by rea
son of close and intimate relation to
inte state commerce, may fall within
Federal control is demonstrated in the
case of carriers who are engaged in
both interstate and intrastate trans
portation. There Federal control has
been found essential to secure the
freedom of Interstate traffic from in
terference or unjust discrimination
and to promote the efficiency of the
interstate service. The Shreveport
oase. 234 U. S. 342, 351, 352; Wiscon
sin Railroad Commission vs. Chicago,
B. & Q R. Co., 257 U. S. 563. 588. It
is manifest that intrastate rates deal
primarily with a local activity. But
in rate-making they bear such a ciose
relation to interstate rates that effec
tive control of the one must embrace
some control over the other. Id. Under
the transportation act, 1920. Congress
went so far as to authorize the Inter
state Commerce Commission to estab
lish a State-wide level of Intrastate
rates in order to prevent an unjust
discrimination against interstate com
merce. Wisconsin Railroad Commis
sion vs. Chicago, B. & Q R. R. Co.,
supro; Florida vs. United State, 282
U. S. 210, 211. Other illustrations are
found in the broad requirements of
the safety appliance act and the hours
of service act. Southern Railway Co.
vs. United States, 222 U. S. 20; Balti
more & Ohio R. R. Co. vs. Interstate
Commerce Commission, 221 U. S. 612.
It is said that this exercise of Federal
power has relation to the maintenance
of adequate instrumentalities of inter
state commerce. But the agency is
not superior to the commerce which
uses it. The protective power extends
to the former because it exists as to
the latter.
The close and intimate effect which
brings the subject within the reach
of Federal power may be due to
activities in relation to productive in
dustry, although the industry when
separately viewed is local. This has
been abundantly Illustrated in the
application of the Federal anti-trust
act. In the Standard Oil and Ameri
can Tobacco cases, 221 U. S. 1, 106,
that statute was applied to combina
tions of employers engaged in pro
ductive industry. * • *
It is thus apparent that the fact
that the employes here concerned
were engaged in production is not de
terminative. The question remains as
to the effect upon interstate commerce
of the labor practice involved. In the
Schechter case, supra, we found that
the effect there was so remote as to
be beyond the Federal power. To find
“immediacy or directness” there was
to find it “almost everywhere," a
result inconsistent with the mainte
nance of our Federal system. In the
Carter case, supra, the court was of
the opinion that the provisions of the
statute relating to production were
invalid upon several grounds—that
there was improper delegation of
legislative power, and that the re
quirements not only went beyond any
sustainable measure of protection of
interstate commerce, but were also
inconsistent with due process. These
cases are not controling here.
Effect of Unfair Practices
In Respondent's Enterprise.
Fourth. Effects of the unfair labor
practice in respondent's enterprise.—
Giving full weight to respondent's con
tention with respect to a break in the
complete continuity of the ' stream of
commerce" by reason of respondent's
manufacturing operations, the fact
remains that the stoppage of those
operations by industrial strife would
have a most serious effect upon inter
state commerce. In view of respond
ent's far-flung activities, it is idle to
say that the effect would be indirect
or remote. It is obvious that it would
be immediate and might be catas
trophic. We are asked to shut our
eyes to the plainest facts of our na
tional life and to deal with the ques
tion of direct and indirect effects in
an intellectual vacuum. Because
there may be but indirect and remote
effects upon interstate commerce in
connection with a ho6t of local enter
prises throughout the country, it does
not follow that other industrial activi
ties do not have such a close and inti
mate relation to interstate commerce
as to make the presence of industrial
strife a matter of the most urgent
national concern. When industries
organize themselves on a national
scale, making their relation to inter
state commerce the dominant factor
in their activities, how can it be
maintained that their industrial labor
relations constitute a forbidden field
into which Congress may not enter
when it is necessary to protect inter
state commerce from the paralyzing
consequences of industrial war? We
have often said that interstate com
merce itself is a practical conception.
It is equally true that interferences
with that commerce must be appraised
by a judgment that does not ignore
actual experience.
Essential Condition
of Industrial Peace.
Experience has abundantly demon
strated that the recognition of the
right of employes to self-organization
and to have representatives of their
own choosing for the purpose of col
lective bargaining is often an essen
tial condition of industrial peace. Re
fusal to confer and negotiate has been
one of the most prolific causes of strife.
This is such an outstanding fact in
the history of labor disturbances that
it is a proper subject of judicial notice
and requires no citation of instances.
The opinion In the case of Virginian
Railway Co. vs. System Federation,
I No. 40, supra, points out that, In the
case of carriers, experience has shown ;
[ that before the amendment, of 1934, j
of the railway labor act "when there
was no dispute as to the organizations
authorized to represent the employes
and when there was a willingness of
the employer to meet such represent
ative for a discussion of their griev
ances, amicable adjustment of differ- !
ences had generally followed and
strikes had been avoided." That, on-1
the other hand, "a prolific source of
dispute had been the maintenance by
the railroad of company unions and
the denial by railway management of
the authority of representatives chosen
by their employes.” The opinion in
that case also points to the large
measure of success of the labor policy
embodied in the railway labor act.
But with respect to the appropriate
ness of the recognition of self-organi
zation and representation in the pro
motion of peace, the question is not
essentially different in the case of em
ployes in industries of such a charac
ter that Interstate commerce is put in
jeopardy from the case of employes of
transportation companies. And of
what avail is it to protect the facility
of transportation, if interstate com
merce is throttled with respect to the
commodities to be transported!
These questions have frequently en
gaged the attention of Congress and
have been the subject of many in
quiries. The steel industry is one of
the great basic industries of the
United States, with ramifying activ
ities affecting interstate commerce at
every point. The Government aptly
refers to the steel strike of 1919-1920
with its far-reaching consequences.
The fact that there appears to have
been no major disturbance in that in
dustry in the more recent period did
not dispose of the possibilities of fu
ture and like dangers to interstate
commerce which Oongree was entitled
to foresee and to exercise its protective
power to forestall. It is not necessary
again to detail the facts as to re
spondent's enterprise. Instead at be
ing beyond the pale, we think that
it presents in a most striking way the
close and intimate relation which a
manufacturing industry may have to
interstate commerce and we have no
doubt that Congress had constitu
tional authority to safeguard the right
of respondent’s employes to self-or
ganization and freedom in the choice
of representatives for collective bar
gaining.
Fifth. The means which the aet em
ploys—Questions under the due process
clause and other constitutional restrlc
tions—Respondent asserts Its right to
conduct its business in an orderly
manner without being subjected to ar
bitrary restraints. What we have said
points to the fallacy in the argument.
Employes have their correlative right
to organize for the purpose of secur
ing the redress of grievances and to
promote agreements with employers
relating to rates of pay and condi
tions of work. Texas Ac N. O. R. Co.
vs. Railway Clerks, supra; Virginian
Railway Co. vs. System Federation,
No. 40. Restraint for the purpose of
preventing an unjust interference with
that right cannot be considered arbi
trary or capricious. The provision of
section 9 ia) that representatives, for
the purpose of collective bargaining,
of the majority of the employes in
an appropriate unit shall be the ex
clusive representatives of all the em
ployes in that unit. Imposes upon the
respondent only the duty of confer
ring and negotiating with the author
ized representatives of its employes for
the purpose of settling a labor dispute.
This provision has its analogue In sec
tion 2, ninth, of the railway labor act,
which was under consideration in
Virginian Railway Co. vs. System Fed
eration, No. 40, supra.
The decree which we affirmed in
that case required the railway com
pany to treat with the representative
chosen by the employes and also to
refrain from entering into collective
labor agreements with any one other
than their true representative as
ascertained in accordance with the
provisions of the act. We said that '
the obligation to treat with the true
representative was exclusive and
hence imposed the negative duty to
treat with no other. We also pointed
out that, as con reded by the Govern
ment. the injunction against the com
pany's entering into any contract
concerning rules, rates of pay and
working conditions except with a
chosen representative was “designed 1
only to prevent collective bargaining
with any one purporting to represent
employes” other than the representa
tive they had selected. It was taken
"to prohibit the negotiation of labor
contracts generally applicable to em
ployes” in the described unit with any
other representative than the one so
chosen, ‘‘but not as precluding such
individual contracts” as the company
might “elect to make directly with
Individual employes.” We think this
construction also applies to section 9
fai of the national labor relations
act.
Act Doe* Not Compel
Any Agreement.
The act does not compel agreements
between employers and employes. It
does not comp>el any agreement what
ever. It does not prevent the employer
“from refusing to make a collective
contract and hiring individuals on
whatever terms” the employer “may
by unilateral action determine.” The
act expressly provides in section 9 (a)
that any Individual employe or a
group of employes shall have the
right at any time to present griev
ances to their employer. The theory
of the act is that free opportunity
for negotiation with accredited rep
resentatives of employes is likely to
promote industrial peace and may
bring about the adjustments and
agreements which the act In itself
does not attempt to compel. As we
said in Texas & N. O. R. Co. vs.
Railway Clerks, supra, and repeated
in Virginian Railway Co. vs. System
Federation, No. 40, the cases of Adair
vs. United States, 208 United States
161. and Coppage vs. Kansas, 236
United States 1, are inapplicable to !
legislation of this character. The act j
does not interfere with the normal J
exercise of the right of the employer
to select its employes or to discharge
them. The employer may not, under
cover of that right, intimidate or
coerce its employes with respect to
their self-organization and repre
sentation, and. on the other hand,
the board is not entitled to make its
authority a pretext for interference
with the right of discharge when that
right is exercised for other reasons
than such intimidation and coercion.
The true purpose is the subject of
investigation with full opportunity to
show the facts. It would seem that
when employers freely recognize the
right of their employes to their own
organizations and their unrestricted
right of representation there will be
much less occasion for controversy in
respect to the free and appropriate
exercise of the right of selection and
discharge.
The act has been criticized as one
sided in its application; that it sub
jects the employer to supervision and
restraint and leaves untouched the
abuses for which employes may be re
sponsible. That it fails to provide a
more comprehensive plan—with better
assurances of fairness to both sides
and with increased chances of success
in bringing about, if not compelling,
equitable solutions of industrial dis
putes affecting interstate oommerce.
But we are dealing with the power of
Congress, not with a particular policy
or with the extent to which policy
should go. We have frequently said
that the legislative authority, exerted
within its proper field, need not em
brace all the evils within its reach.
The Constitution does not forbid
“cautious advance, step by step," in
dealing with the evils which are ex
hibited in activities within the range
of legislative power. Carroll vs. Green
wich Insurance Co., 199 U. 8. 401, 411;
Keokee Coke Co. vs. Taylor, 234 U. 8.
324, 327; Miller vs. Wilson. 236 U. 8.
*73, 334; Sproiee va. knford, 236 U, 8.
174, 396. The question in such cases
is whether the legislature, in what it
does prescribe, has gone beyond con
stitutional limits. • • •
Our conclusion is that the order of
the board was within its competency
and that the act is valid as here
applied. The judgment of the Cir
cuit Court of Appeals is reversed and
the cause is remanded for further pro
ceedings in conformity with this
opinion.
■" 1 ■ •
Digest of Majority
Opinions in 4 Cases
On Wagner Issues
MAKING their pronouncement
that the Associated Press is
engaged in interstate com
merce within the meaning of
article 1, section 8, of the Consti
tution, the Supreme Court majority
yesterday elaborated their belief as
follows in the opinion read by Justice
Roberts:
“It is an instrumentality set up by
constituent members who are en
gaged in a commercial business for
profit, and as such Instrumentality
acts as an exchange or clearing house
of news as between the respective
members and as a supplier to members
of news gathered through its own
domestic and foreign activities.
“These operations involve the con
stant use of channels of interstate
and foreign communication. They
amount to commercial Intercourse
and such intercourse is commerce
within the meaning of the Constitu
tion. Interstate communication of a
business nature, whatever the means i
of such communication, is Interstate j
commerce regulatable by Congress,
under the Constitution."
Effect ot Strike on
Petitioner Is Cited.
Referring to the claim of the peti
tioner that editorial employes such
as Morris Watson are remote from any
interstate activity and their employ
ment or tenure can have no direct or
intimate relation with the course of
interstate commerce, the majority de
clared:
"We think, however, it is obvious
that strikes or labor disturbances
among this class of employes would
have as direct an effect upon the ac
tivities of the petitioner as similar
disturbances among those who oper
ate the teletype machines or as a
strike among the employes of tele
graph lines over which petitioner's
messages travel."
Directing himself next to the Issue
of freedom of the press. Justice Rob
erts declared flatly that the majority
holds the opinion that the statute
does not abridge the guarantees of
the first amendment.
Reviewing the contention of the
petitioner. Justice Roberts continued:
"It is insisted that the Associated
Press is in substance the press itself,
that the membership consists solely
of persons who own and operate news
papers, that the news Is gathered
solely for publication in the news
papers of members.
"Stress is laid upon the facts that
this membership consists of persons
of every conceivable political, econom
ic and religious view, that the one
t' ,ng upon which the members are
united is that the Associated Press
shall be wholly free from partisan
activity or the expressions of opin
ions.
“The conclusion which the peti
tioner draws is that whatever may be
the case with respect to employes in
its mechanical department, it must
have absolute and unrestricted free
dom to employ and to discharge those
who, like Watson, edit the news, that
there must not be the slightest oppor
tunity for any bias or prejudice per
sonally entertained by an editorial
employe to color or to distort what
he writes. So it is said that any regu
lation protective of union activities,
or the right to collectively bargain on
the part of such employes. Is neces
sarily an invalid invasion of the free
dom of the press.
"We think the contention not only
has no relevance to the circumstances
of the instant case, but is an unsound
generalization.
“Ostensible Reason" for
Dismissal of A. P. Worker.
"The ostensible reason for Watson's
discharge, as embodied in the records
of the petitioner, is 'solely on the
grounds of his work not being on a
basis for which he has shown capa
bility.’ The petitioner did not assert
and does not now claim that he had
shown bias in the past. It does not
claim that by reason of his connection
with the union he will be likely as the
petitioner honestly believes, to show
bias in the future. The actual reason
for his discharge, as shown by the
unattacked finding of the board, was
his guild activity and his agitation for
collective bargaining.
"The statute does not preclude a
discharge on the ostensible ground for
the petitioner's action; It forbids dis
charge for what has been found to be
the real motive of the petitioner.
These considerations answer the sug
gestion that if the petitioner believed
its policy of impartiality was likely
to be subverted by Watson's contin
ued service. Congress was without
power to interdict his discharge. No
such question is here for decision.
Neither before the board, nor in the
court below, nor here has the petition
er professed such belief.”
Justice Roberts next emphasized
that the act does not require reten
tion of incompetent or unfaithful em
ployes.
‘The restoration of Watson to his
former position," the majority opinion
continued, "in no sense guarantees
his continuance in petitioner's employ.
The petitioner is at liberty, whenever
occasion may arise, to exercise its un
doubted right to sever his relationship
for any cause that seems to it proper
save only as punishment for, or dis
couragement of, such activity as the
act declared permissible.”
Cites Other Rules Governing
Newspaper Conduct.
Emphasizing the fact that the As
sociated Press and its member news
papers are subject to such regulation
as laws of libel, taxation and anti
trust statutes, Justice Roberts con
tinued, “the regulation herein ques
tioned has no relation whatever to the
impartial distribution of news. The
order of the board in no wise circum
scribes the full freedom and liberty
of the petitioner to publish the news
as it desires it published or to enforce
policies of its own choosing with re
spect to the editing and rewriting of
news for publication, and the peti
tioner is free at any time to discharge
Watson or any editorial employe who
fails to comply with the policies It
may adopt."
Other contentions of the petitioner
as to Invalidity of the act were an
swered In a concluding paragraph of
^_ I
the majority decision, which follows:
"The contentions that the act de
prives the petitioner of property with
out due process, that the order of the
board deprives petitioner of the right
to trial by jury, and that the act is
lnvaiid on its face because It seeks to
regulate both interstate and intrastate
commerce, are sufficiently answered in
the opinion in Texas and N. <fe O. R.
Co. vs. Brotherhood of Railway and
Steamship Clerks, supra, and in Na
tional Labor Relations Board vs,
Jones & Laughlin Steel Corp.. No.
419. decided this day, and need no
further discussion here.”
Opinion Is Unanimous
In Bus Firm Case.
Validity of application of the act
to the case of the Washington, Vir
ginia and Maryland Coach Co., was
upheld unanimously. Justice Roberts
delivering an opinion containing the
following excerpts:
Because of non-compliance (with
an N. L. R. B order) the board filed
a petition in the circuit court of ap
peals for its enforcement. That court
refused to disturb the findings of
fact made by the board, over ruled
the contentions as to unconstitution
ality of the act as applied to petitioner
and passed a decree enforcing the
order.
While the petitioner, in its speci
fications wi error, attacks the holding
of the circuit court of appeals that
the act as applied does not violate the
fifth and seventh amendments, the
argument in brief and at the bar was
confined to two propositions: first,
that the act is an attempt on the part
of Congress to regulate labor relations
in all employments whether inter
state or intrastate and as it is void
as an attempted regulation of intra
state commerce the whole must fall
because its provisions are inseverable;
secondly, that the evidence does not
sustain the findings and the board
committed substantial error in the
exclusion of evidence.
First. No contention is made that
the petitioner is other than an instru
mentality of interstate commerce It
is engaged in interstate transportation
for hire. Our decisions in Texas and
N. O. R. Co. vs. Brotherhood of Rail
way and Steamship Clerks, 281 U. S.
548. and the Virginian Railway Co vs.
System Federation No. 40. No. 324,
October term, 1936, put beyond debate
the validity of the statute as applied
to the petitioner. The contention that
the act on its face seeks to regulate
labor relations in all employments,
whether in interstate commerce or not,
is plainly untenable. As we have had
occasion to point out in decisions ren
dered this day the act limits the juris
diction of the board to instances
which fall within the commerce power
and if the board should exceed the
jurisdiction conferred upon it, any
party aggrieved is at liberty to chal
lenge its action.
Error in Weighing Evidence
Is Complaint
Second. The riition for certiorari
made no mention of any claim with
respect to the sufficiency of the evi
dence to support the findings. In the
light of this fact the question is not
open for decision here. But. were this
not so, we should not review the facts,
since section 10 <ei of the act pro
vides that "the findings of the board
as to facts, if supported by evidence,
shall be conclusive," and there was
substantial evidence to support the
findings.
This is not a case of alleged confis
cation, nor is it one where the board
lacked jurisdiction, for admittedly the
petitioner's activities are in interstate
commerce. The complaint is merely
of error in appreciating and weigh
ing evidence. In the case of statutory
provisions like section 10 (ei, applica
ble to other administrative tribunals,
we have refused to review the evidence
or weigh the testimony and have de
clared we will reverse or modify the
findings only if clearly improper or not
supported by substantia! evidence.
The contentions respecting the rejec
tion of evidence are not well founded.
In the majority decisions of both
the Fruehauf Trailer Co. case and the
Friedman-Harry Marks Clothing Co.
ca.se. delivered by Chief Justice
Hughes, the court declared it had
found the Labor Board's findings with
respect to the nature of the businesses
and the circumstances of discharge of
employes to have been correct.
The decisions then concluded with
the statements that the validity of the
act was fully covered in the Jones and
Laughlin decision, with the principles
there stated applicable in both cases.
The decrees of the Circuit Courts then
w-ere ordered reversed and the causes
remanded.
----•
LABOR ORGANIZATION
SPUR SEEN IN RULING
Hillman Sees Company Union*
Eliminated by Decision
on Wagner Act.
B> the Associated Press.
NEW YORK. April 13—Sidney
Hillman, chairman of the Textile
Workers' Organizing Committee and
president of the Amalgamated Cloth
ing Workers of America, said yester
day in a formal statement on the Su
preme Court decisions affirming the
Wagner labor relations act:
"The decision of the Supreme Court
upholding the Wagner labor disputes
act and thereby confirming the right
of labor to organize and thus bargain
collectively with employers, is, of
course, a victory for labor.
"With the fear of discriminatory
discharges removed and the elimina
tion of company unions, which aro
prohibited under the Wagner act,
there will be an overwhelming sweep
of workers into the organized labor
movement.
“These decisions demonstrate the
desirability of the present court pro
posal. in the present situation the
interpretation of the Constitution
with respect to labor problems de
pends upon the state of mind of the
members of the court. There is no
legal difference between coal mining,
held beyond the regulatory powers of
Congress, and the manufacturing of
clothing.
“The essential features of the
President's court proposal are based
upon a determination that the general
welfare of the country must not be
permitted to rest upon such caprice
and whim on the part of a few Indi
vidual members of the Supreme
Court.”
—--■— •
Doctor Calls a Doctor.
NORTH PLATTE, Nebr. </P) — On
his way to attend a rural patient,
Dr. T. J. Kerr, North Platte, found
he needed a doctor himself.
After a stomach pump had been
used to relieve an attack of ptomaine
poisoning, Dr. Kerr diagnosed:
"Too many of the wrong kind of
hamburgers."