employees. The Board had filed a petition for an injunction against a union which was encouraging employees of a retail store to strike with the object of compelling the employer to recognize the union as bargaining agent. Another union had already been certified by the Board. The injunction proceedings were brought pursuant to section 10 (1) of the act, which provides for the issuance of injunctions against certain unfair labor practices.

The union contended that section 10 (1) was unconstitutional-that it gave the district court nonjudicial powers by conferring on it jurisdiction to lend its aid to an administrative body; and that there was no case or controversy involved which gave Federal courts jursidiction under the Constitution. The court rejected these arguments, stating that the case involved a dispute to be resolved under the direct provisions of the statute. "It did not cease to be a dispute because the ultimate decision on the merits would not rest with the court." Numerous instances were cited in which courts had aided the exercise of jurisdiction by an administrative body. Since the union had waived its right to argue on the merits of the controversy, it was not deprived by the injunction, without due process of law, of a right to a hearing.

Injunction in Behalf of Private Party Denied.Another district court held 13 that the provisions of the Norris-La Guardia Act of 1932 still limit injunctions by private parties against union activities, although such activities may be violations of a collective-bargaining agreement. A majority of the courts have so held.

A collective-bargaining agreement between longshoremen and employers was interpreted by a declaratory judgment of a court to give employers the right to assign more than 8 men out of a group of 20 for work inside a vessel in loading and unloading. Some union members refused to abide by the agreement as interpreted. The effect of their refusal was to prolong the operation and leave a portion of the gang standing idle on the deck. The employer asked for an injunction restraining the recalcitrant union members from refusing to obey orders or from working in the longshore industry anywhere in the Port of New York, and restraining the union from ratifying such dis

18 Alcoa Steamship Co. v. McMahon (U. S. D. C., S. D. N. Y., November 5, 1948).

obedience and from receiving dues of recalcitra members.

The court held that there was clearly a lab dispute within the meaning of the NorrisGuardia Act. While Congress in the Labor Ma agement Relations Act of 1947 authorized su against violators of collective agreements, the leg lative history of the act was held to indicate th Congress had not intended to withdraw the strictions of the Norris-La Guardia Act in su proceedings.

Representation and Elections. Reversing a pr vious decision," the NLRB ruled 15 that a petitio by a union for representation as bargaining age need not show that the union had requeste recognition and that such request had been r fused by the employer. Section 9 (c) (1) of th amended act provides that the Board shall invest gate such a petition when it alleges that a sul stantial number of employees wish to be repr sented "and that their employer declines t recognize their representative as the representativ defined in section 9 (a)." The Board pointed ou that the original act contained no such provision and that, while certain procedures had bee developed in the investigation of petitions, the were never looked upon as jurisdictional require ments. It was held that the new provision enacted in 1947 merely listed in detail the feature of a union's petition as opposed to an employer petition; that Congress would have been mor explicit if it had intended such stipulations to b hard and fast jurisdictional requirements. More over, it was pointed out that, if refusal of th employer to recognize the union were made condition of granting the petition, no union recognized by the employer could ever be certifie under section 9 (b). Congress had intended section 8 (b) (4) (C) of the act to prevent "union raiding," but this provision was applicable only if another union had been certified. A litera interpretation of section 9 (c) (1) would nullify the intent of Congress in enacting section 8 (b) (4) (C). Two Board members dissented, on the ground that the ruling disregarded the plain meaning of section 9 (c) (1).

14 In re Advance Pattern Co. (79 NLRB No. 30, August 27, 1948). 18 In re Advance Pattern Co. (80 NLRB No. 10, October 28, 1948).

Discrimination-Economic Strikers. An economic strike by employees in certain bargaining units so interfered with activities as to prevent other employees at the struck plants from working. The employer gave to employees who were willing to return to work during the stoppage a "continuous service credit" for the period of the strike. The credit was not a condition of employment, but was to serve as a basis for determination of benefits such as seniority, vacations, and pensions. No such credit was given to the strikers.

The Board ruled 16 that the denial of vacation and pension benefits to strikers was not discrimination in regard to condition and tenure of employment. Vacation and pension benefits were considered wages, and an employer could not be expected to finance an economic strike against him by paying wages to the strikers for work not performed. The case of the nonstrikers who could not work was held to be different; even though they did no actual work, they were willing to work and were considered as stand-by workers subject to call at all times and compensable as a matter of law. Also, it was pointed out that an employer should be able to compensate nonstrikers for loss of time, so as to keep intact his working force.

The Board ruled that the employer's refusal to credit strikers with seniority for the strike period was in another category and was discriminatory. It pointed out that seniority is only a relative matter and that failure to credit seniority to some workers, while continuing the seniority of others, necessarily changed the prestrike relative seniority status of strikers as opposed to nonstrikers. Loss of seniority increased the strikers' vulnerability to lay-off or discharge and thus had a definite effect on their tenure of employment.

Veterans Reemployment

War Production Employment Not Temporary— Demotion Without Cause. A circuit court of appeals decided " that a veteran was entitled to damages for demotion within a year after his reinstatement.

The employer contended that, since the veteran was first employed during a period of war production expansion at the plant, he held a temporary position and had no reemployment rights. The court was willing to take judicial notice of the

"In re General Electric Co. (80 NLRB No. 90, November 22, 1948). "Foor v. Torrington (U. S. C. C. A. (7th), November 11, 1948).

situation of industry during the war, but it held that the position of the veteran was not temporary. It pointed out that bearings, in the manufacture of which the veteran was engaged, have a peacetime as well as a wartime use. When the veteran applied for reinstatement, his old position was in fact available, in spite of such shrinkage as had occurred in demand for the product. Further, when he was subjected to the transfer which he claimed was an improper demotion, his place was filled by another employee. Therefore, the court stated, it could not be said that the veteran was without reemployment rights.

During the year after his reinstatement, the veteran was working at a craft, the members of which alone had certain skills that the employer needed to break a production bottleneck in another position, to which the employer transferred the veteran, along with nonveteran employees. He filled their original positions with employees having less seniority. At the piece rate for the new position, the veteran could not earn per hour as much as he had been earning. The court therefore decided that the transfer constituted a demotion, which, if without cause, was a discharge not proper within the reemployment

statutes.

The union contract provided that, so far as qualifications and ability permitted, seniority reckoned from the date of original hiring was to prevail. It was proved that in actual practice, transfers and demotions were based on straight seniority. The employer contended that the demotion was based on the contract, which was to be considered binding on the veteran, since it did not discriminate against veterans. However, the employer failed to prove that all other employees in the veteran's old position had greater seniority. The demotion was held by the court to violate not only the contract, but also the veteran's statutory seniority rights, since he was replaced by an employee of less seniority. In any conflict between even a nondiscriminatory contract and the reemployment statutes, said the court, the statute prevails.

As to the existence of "cause" apart from the contract, the court noted that the demotion was not based on any action of the veteran and that the employers' business had suffered no severe economic reverse requiring abolition of the position the veteran held. It conceded that the

employer had in good faith exercised his business judgment in making the transfer and in addition had had approval of the War Labor Board. These things do not constitute cause which could make the demotion lawful.

A

Reemployment Rights of Checkweighmen. veteran's right to be restored to the position of checkweighman of a coal mine was recently considered 18 by a district court. The State law provided that checkweighmen were to be elected for a year at a time and were to revert at the end of a year to their former positions with the employer (the mine operator). At the end of his term, a checkweighman does not have the right to hold over until the election of a successor. The persons who elect the checkweighmen and pay their wages under this law are the coal loaders and machinemen, rather than all members of the local union. The veteran had served over 10 months of the year for which he was elected, when he left the position to enter the service. He sought reinstatement for the balance of his term. During his absence other persons had been elected as checkweighmen and the position was filled at the time of his application.

The court dismissed the action against the union, on the ground that the union was not the employer of checkweighmen under the procedures prescribed by the State law. In addition, the veteran had no reemployment rights, in the court's opinion, because under the reemployment statutes, his position as checkweighman was a temporary one. The court rejected the argument that the position of checkweighman was established and permanent, and emphasized the fact that the term of office was for a definite and relatively short period. Lacking any assurance from custom, contract, or reasonable expectation that the veteran's tenure would continue beyond his term, the court said, the veteran must be considered as holding a temporary position.

A circuit court of appeals had previously held 19 that an elective position was not temporary within the meaning of the reemployment statutes, although its term was limited and continuance was subject to reelection.

18 Mouell v. United Mine Workers (U. S. D. C., D. of W. Va., October 8, 1948).

19 Houghton v. Texas State Life Insurance Co., Monthly Labor Review, June 1948 (p. 650).

Decisions of State Courts

California-Picketing to Compel Selective Hiri Illegal. Certain pickets were adjudged by a low court to be guilty of contempt for violating an i junction prohibiting the picketing of a certa store to compel the selective hiring of Neg clerks. The pickets expressed the desire of c tain labor unions to see that Negro clerks we hired in a number proportionate to the number Negro customers. The picketing was peacef and orderly, without threat of force or violenc An appeal to the State Supreme Court contende that the injunction against the picketing co stituted an unlawful violation of the guaranty freedom of speech. The State supreme cou held 20 that the injunction was valid and that th picketing to compel the selective hiring of N groes was unlawful, since it was picketing for a unlawful objective. The court pointed out tha if the store had yielded to the demands of th union, there would have been in effect a close union in favor of the Negro race among a certai proportion of the employees. Such a close union would be no more lawful than a close union in favor of white employees. Such an ar bitrary discrimination upon the basis of race o color had previously been prohibited by the court. Not all peaceful picketing, the court stated, wa guaranteed as free speech, but only that i pursuance of a lawful objective.

Two justices dissented in separate opinions, o grounds which included the following: (1) Ther was no discrimination in favor of Negroes, bu merely an attempt to secure equality for them (2) A closed shop or union was not involved; the picketing union had others than Negroes as mem bers; and a half-closed shop was not the same as closed shop. (3) The decision of the majority wil prevent the only effective method of protes against racial discrimination in regard to hire o employees. (4) The public policy of the Stat was the same as that embodied in the Norris LaGuardia Act, limiting the power of the courts to grant injunctions in labor disputes. (5) Picketing is a form of free speech which should not be pre vented in the absence of a clear and present danger of substantive evil. By differentiating picketing

20 Hughes v. Superior Court (Calif. Supreme Ct., November 1, 1948). 21 James v. Marinship Co., 25 Cal. (2d) 721 (1944).

from other forms of communication, the union's right to publicize the dispute was unreasonably interfered with.

California State Court Jurisdiction to Enforce Taft-Hartley Act. A union picketed a drug store which had discharged employees that became members of the union and had rejected a collectivebargaining agreement. The employer petitioned the State court to enjoin the picketing as unlawful under the Labor Management Relations Act. The lower court issued an injunction restraining various activities, such as a secondary boycott, that were made unlawful by the act. A picket was adjudged guilty of contempt of the order.

On appeal the State supreme court 22 held that the picketing was not for an objective which was prohibited under State law. It held that the State court was without jurisdiction to restrain unfair labor practices under the Labor Management Relations Act, which was stated to be the exclusive province of the NLRB. The Board, although it had previously denied a petition by the employer that the union be certified, had not thereby divested itself of jurisdiction over unfair labor practices of the union which affected inter

state commerce.

Minnesota-Labor Unions Transfer of Funds. A local paper workers union, at a regular meeting in 1918, established a sick relief fund called the Sick Relief Association. A burial benefit fund was added in 1933. Two years later a set of bylaws was adopted for both funds. The bylaws apparently only formalized established practice. The funds were really a part of the local union's funds. All benefits came from regular union dues

In re De Silva (Calif. Supreme Ct., November 16, 1948).

and were granted at regular union meetings. According to the bylaws, the fund was established for the benefit of members of the local whose dues either were paid up or were not more than 60 days in arrears.

In 1946, some members having become dissatisfied with the local, which was affiliated with an AFL international, the workers voted in an NLRB election to select a woodworkers union (CIO) as their bargaining representative. Five days later the members of the paper workers local voted by a large majority to amend the bylaws of the benefit funds to allow benefits to persons who were not members of the paper workers local, and to transfer the funds to another association. A minority protested that the transfer was illegal. Shortly afterward, a majority of the members of the paper workers local transferred their membership to the woodworkers.

The State supreme court held 23 that even a majority of the members of the local had no right to transfer the benefit funds. The establishment of such a fund was deemed to constitute a contract between all the members of the union as to the use to be made of it. The general rule of unincorporated associations was held to be that the majority cannot withdraw funds from the association if a minority dissents. The court pointed out that the members who left the paper workers union did so of their own free will. When they contributed to the fund through their dues, they might have foreseen that some day they might withdraw. Therefore, whatever enrichment was conferred on the minority who remained members was conferred without fraud or any factor justifying intervention by a court.

23 Liggett v. Koivunen (Minn. Supreme Ct., October 29, 1948).

Chronology of

Recent Labor Events

November 12, 1948

THE NATIONAL LABOR RELATIONS BOARD, in the case of Northland Greyhound Lines, Inc. and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local Division 1150 (AFL), held that section 14 (b) of the amended National Labor Relations Act precludes union-shop elections in States which prohibit the union shop, but does not preclude such elections in States which regulate the union shop. (Source: Labor Relations Reporter, vol. 23 LRRM, p. 1074.) November 13

THREE "OPERAting" railroaD UNIONS-the Brotherhood of Locomotive Engineers (Ind.) the Brotherhood of Locomotive Firemen and Enginemen (Ind.), and the Switchmen's Union of North America (AFL)-signed an agreement with the operators providing for an hourly wage increase of 10 cents, for about 125,000 men, retroactive to October 16.

On October 4, the same increase had been accepted by the other two "operating" unions—the Order of Railway Conductors of America (Ind.) and the Brotherhood of Railroad Trainmen (Ind.). (Source: Labor, Oct. 9 and Nov. 20, 1948, and BLS records.)

November 15

THE SUPREME COURT of the United States, in the case of Cingrigrani v. B. H. Hubbert & Son, Inc., refused to review a lower court's decision which had denied recovery of overtime pay and liquidated damages under the Fair Labor Standards Act of 1938. By its action, the Supreme Court rejected its first opportunity to pass on the constitutionality of the Portal to Portal Act of 1947 (see Chron. item for June 7, 1947, MLR, Aug. 1947). (Source: U. S. Law Week, vol. 17 LW, pp. 1071 and 3143.)

On November 22, the Supreme Court in the case of Darr v. Mutual Life Insurance Co., refused to review a lower court's decision which had held (1) that no employer shall be liable for any back pay claim under the FLSA of 1938, if he can prove he acted “in good faith in conformity with and reliance on" a ruling of some Federal labor-regulating agency, and (2) that a Federal court can disallow liquidated damages or can award less than the amount required under

faith and had reasonable grounds for believing" that his act or omission did not violate the law. (Source: U. S. Law Week, vol. 17 LW, p. 3155.)

THE SUPREME COURT of the United States, in the case of Brotherhood of Locomotive Engineers v. U. S., declined to review a lower court's injunction on May 10 (see Chron item for May 10, 1948; MLR, June 1948) to prevent a Nation-wide railroad strike. (Source: U. S. Law Week, vol. 17 LW, p. 3143.)

THE 67TH ANNUAL AFL CONVENTION opened at Cincinnati. (Source: American Federation of Labor Weekly News Service, Nov. 16, 1948; for discussion, see p. 2 of this issue.)

THE INTERNATIONAL TYPOGRAPHICAL UNION (AFL) filed a statement of compliance with the court order (see Chron. item for Oct. 14, 1948, MLR, Dec. 1948) that the union should purge itself of contempt of court by showing that it had halted illegal activities. The union, according to the court, had insisted upon maintenance of a closed shop contrary to the terms of the Labor Management Relations Act of 1947. (Source: Labor Relations Reporter, vol. 23 LRR, p. 67, and New York Times, Nov. 16, 1948.) November 16

IT WAS ANNOUNCED that the officers of the National Maritime Union (CIO) will comply with the non-Communist affidavit requirements of the LMRA of 1947. This action was voted by the union's membership by 3 to 1. (Source: New York Times, Nov. 17, 1948, and CIO News, Nov. 29, 1948, p. 9.)

November 20

THE CIO EXECUTIVE BOARD by a vote of 38 to 5 revoked the charter of the New York City CIO Council on the ground that this body had given "slavish adherence" to the Communist Party line. (Source: Washington Star, Nov. 21, 1948, and CIO News, Nov. 29, 1948, p. 14.) November 22

THE 10TH CIO CONVENTION opened at Portland, Oreg. (Source: CIO News, Nov. 22, 1948; for discussion, see p. 7 of this issue.)

THE NLRB PERMITTED the Pacific American Shipowners Association to withdraw its earlier petition for a representation election covering radio men on West Coast Ships.

On December 6, William Green, AFL president, formally protested this unprecedented action. He stated that it allowed the American Radio Association (CIO) the privilege of negotiating and signing an agreement for marine radio officers in the Alaska Steamship Co. and Northland Transportation (Co.), who are members of the Radio Officers Union (AFL). (Source: AFL Weekly News Service, Dec. 7, 1948, and New York Times, Dec. 7, 1948.)