! 103 Argument for Petitioner. the purposes of this Act," was upheld as forming an integral part of the arbitration scheme which Congress had devised in the exercise of its power to "facilitate the amicable settlement of disputes which threaten the service of the necessary agencies of interstate transportation." The reinstatement of employees discharged during a pending controversy was required, however, not in obedience to any express mandate of the Act, but to purge the railroad of a contempt of the court's injunction. That case has no bearing on the power of Congress to enforce collective bargaining, or to compel the reinstatement of discharged employees, in a private business. The doctrine of the Adair case was recognized by the Court in the Texas & New Orleans case in pointing out that its principle was inapplicable, because the enforcement of voluntary arbitration had nothing to do with the "normal" right of an employer to discharge his employees at will. By the "normal exercise of the right of the carrier to select its employees or to discharge them," the Court obviously referred to the discharge or selection of employees (1) when there was no actual dispute, (2) when there was no controversy pending before a mediation board, and (3) when the discharge was not in flagrant disobedience of an injunction properly issued by a court of equity. The decision in the Railroad Pension case, 295 U. S. 330, referred to the fact that the Texas case did not interfere with "normal" rights. Furthermore, the Railroad Pension case leaves no doubt about the limited application of the Texas case, as well as all cases sustaining the power of Congress to influence or control the relation of employer and employee in any manner. This limited application is conclusively shown, not only by the majority opinion, but also by the dissenting opinion of the Chief Justice. The decision of this Court in the Railroad Pension case stands for the proposition, therefore, that even as Argument for Petitioner. 301 U.S. to the railroads any compulsory control by Congress of employer-employee relations, no matter what it may be, is void unless it has an obvious and direct bearing on the obligations of public service incident to the calling of the railroads. The regulation is too remotely connected with transportation service if it merely relates to the causes of disruptions, such as, for example, the malcontent of the persons rendering the service. To have a direct effect upon interstate commerce the regulation of the employment relation must at least, as was the case with the Railway Labor Act of 1926, facilitate the amicable settlement of disputes which threatened the service of the necessary agencies of interstate transportation and tended to prevent interruptions of service. In other words, the dispute must be actual, not conjectural; the disruption of transportation service must be presently threatened thereby, not remotely possible. The Strike, or Anti-Trust Cases. All of the strike cases, following the second Coronado case, 268 U. S. 295, related exclusively to the removal of existing, intentional obstructions to interstate commerce; the injunctions were not granted except where the actual intent or purpose of the strikers was to prevent the flow of goods across state lines. The same is true as to the regulation of any combination or conspiracy under the anti-trust laws. For this reason the strike cases do not properly fall into the category of regulations of the employer-employee relationship, but relate solely to the removal of actual and existing obstructions to interstate commerce in the form of a combination or conspiracy in restraint of trade. As in the "flow" of commerce cases, heretofore discussed, it should be noted that the "strike" cases involve a regulation of A in order to keep him from obstructing B or depriving him of the facilities to which he is entitled. There is no indication whatever in them that an 103 Argument for Petitioner. employer may be regulated to keep him from obstructing himself. The Act violates the Fifth Amendment because its terms are arbitrary, unreasonable and capricious, having no real and substantial relation to the accomplishment of legitimate ends. The enforcement by statutory compulsion of the collective action which the Act prescribes is an arbitrary encroachment upon the constitutional rights of the unwilling employer and his non-consenting employees. Exceptional circumstances being absent, the statutory compulsion is arbitrary per se. The Act even goes beyond the compulsory enforcement of collective action in general in that it is designed to compel the universal acceptance, by both employer and employee, of a rigid and hitherto unaccepted conception of collective action which, carried to its logical conclusion, completely destroys the rights of the employer and his non-consenting employees. Instead of seeking a reasonable balance between employer rights and the rights of individual employees on the one hand, and the collective rights of employees on the other, the Act fosters the domination of all industry by labor unions. This domination is sought, irrespective of harsh, one-sided, and discriminatory results, as the one and only method of adjusting inequality of bargaining between employer and employee. That such an arbitrary program has been adopted by the Act would seem to be apparent from no more than a cursory consideration of the provisions of §§ 8 and 9. The Act deliberately and openly fosters the closed union shop. The company union or any other employer-employee coöperation is outlawed. The unreasoning sweep of the prohibition in § 8 (2) is merely emphasized by the proviso that the employer may confer with his employees Argument for Petitioner. 301 U.S. during working hours "subject to rules and regulations made and published by the Board," but not otherwise. Irrespective of whether or not the company union is inherently evil, it would seem on principle alone that no law could remain reasonable and at the same time deprive both employer and employee of the advantages of friendship, mutual loyalty and wise coöperation. Subdivision (3) of § 8 reënacts those very restrictions upon the employer which were declared arbitrary and invalid in the Adair and Coppage cases. The prohibition here, moreover, extends to tenure of employment as well as to any discrimination in hire, discharge, or employment contracts. Accordingly, an employer must always find reasons which would safely withstand the scrutiny of the Board before he even went so far as to demote, reduce the salary, or even change the routine employment of a union man. By the same token, it would seem that he must carefully examine his conscience and his records before he promotes or encourages a non-union man. These provisions against discrimination contained in § 8 (3) virtually place union members in a status secure against discharge or demotion however deserved. See Rosenthal-Ettlinger Co. v. Schlossberg, 266 N. Y. S. 762. The Act expressly sanctions discriminatory closed union shop agreements. The Act does not permit freedom in collective bargaining by employees. On the contrary, collective bargaining is prohibited except upon rigid conditions which are both restrictive and discriminatory. The only permissible bargaining unit is the one selected as appropriate by the Board, whether it be "the employer unit, craft unit, plant unit, or subdivision thereof." § 9 (b). The Board's discretion in making this selection is virtually unlimited. The employer and the 103 Argument for Petitioner. individual employees are utterly helpless except in so far as they are able to influence the Board in the exercise of its unlimited power of discrimination. The selection of the unit appropriate for the purposes of collective bargaining is, however, of the utmost concern to both employee and employer, particularly because there can be but one, "exclusive," representative for the entire unit. Furthermore, the minority in the designated unit are not only deprived of the power to contract with their employer, either individually or through representatives of their own choosing, but they are also bound by the terms of any agreement which the employer makes with the representatives of the majority. See Carter v. Carter Coal Co., 298 U. S. 238, 311. Under this Act it is possible, either by gerrymandering of bargaining units, or by rulings on elections, to subject the majority employees to the will of the minority. See Bendix Products Corp. v. Beman, 14 F. Supp. 58, 66. Section 8 (5) provides that it is an unfair labor practice for the employer "to refuse to bargain collectively with the representatives of his employees, subject to the provisions of § 9 (a)." The Board has interpreted this as imposing upon the employer an affirmative duty to bargain and negotiate with the exclusive representatives of the unit which it prescribes. Thus, when a labor organization, such as the American Newspaper Guild, demands a closed shop, the employer may not flatly refuse but must seek to reach an agreement with the union. And, in the final analysis, it is left to the Board to determine for the employer whether or not the closed shop demand of the union is to be accepted. Mutuality of contract is totally lacking in that the employer, who is the only party under an obligation to "bargain," is likewise the sole party bound by an agreement. 146212-37-8 |