The Charlotte News

Tuesday, February 28, 1939

FIVE EDITORIALS

The Court found that the initial discharge for striking was invalid; but that the sit-in strikers violated the law and thus the discharge on that independent ground was adequate and not unlawful. Thus the NLRB's order to reinstate those workers who were merely striking and to allow recognition of their chosen union was sustained; the order, however, to reinstate the sit-in strikers, as well as those who aided and abetted the sit-in, was reversed on the basis that they had been discharged lawfully for unlawful conduct. In reaching this decision, as the editorial also quotes, the Court stated: "To justify such conduct [a sit-in strike] because of the existence of a labor dispute or of an unfair labor practice would be to put a premium on resort to force instead of legal remedies and to subvert the principles of law and order which lie at the foundations of society."

In dissent, however, Justices Reed and Black, while not condoning lawless sit-in strikes, stated: "As now construed by the Court, the employer may discharge any striker, with or without cause, so long as the discharge is not used to interfere with self-organization or collective bargaining. Friction easily engendered by labor strife may readily give rise to conduct, from nose-thumbing to sabotage, which will give fair occasion for discharge on grounds other than those prohibited by the Labor Act." They went on to say that the company had for protection of its property rights resort to the police and the court order to re-acquire possession of the buildings, but that such did not affect the rights one way or the other of the workers to be re-hired. "The point is made that an employer should not be compelled to reemploy an employee guilty, perhaps, of sabotage. This depends upon circumstances. It is the function of the Board to weigh the charges and countercharges and determine the adjustment most conducive to industrial peace. Courts certainly should not interfere with the normal action of administrative bodies in such circumstances." They would have held that the Board was therefore within its power, in order to effectuate the ends of disallowing an employer to interfere with collective bargaining, to order the reinstatement even of the sit-in strikers.

So, who had the better of the argument, the majority or the dissent? The issues thus framed present real questions at issue in the formation of the NLRB in the first instance, to protect the right of collective bargaining against company goon tactics of the type apparently occurring here leading to the sit-in strike. The majority assumes too much a smooth-working world where the employees could have made their complaint to the NLRB earlier and achieved recognition of their chosen union without resort to the sit-in? But, in practical circumstances in existence at the time, could they? They had families to feed and could not afford to be fired. Reinstatement with back pay is fine, but what happens in the meantime to struggling workers and their families? What happens to you if you lose your paycheck for one month, let alone for several months while a labor strike is being resolved?

It is a thorny issue but ultimately the deference to the decision of the Board, the body closest to the facts after hearing the complaints of the workers firsthand, seemed the better course, that position followed essentially by the dissent. Since the Board felt that the sit-in strikers should be reinstated, it obviously heard facts to convince it that there was some justification in the resort to the sit-in to effectuate the ends of recognition of the union against the secretive union-busting activities of the company. If that is to say the end justifies the means, given labor conditions of the times of the 1930's, then so be it. Had the sit-in strike not occurred drawing attention to the complaints of the workers, would the conflict have been drawn in high relief to the point where the union-busting activities would have been finally deterred?

The same sort of issue, we note parenthetically, though in a different context, was brought to bear when the sons and daughters of this generation of the 1930's participated in sit-in strikes as students, modeled along the same lines as the worker sit-ins of the 1930's, during the 1960's, such as that at the University of California at Berkeley in the 1964 Free Speech Movement, in protest of University administrators' limitations on organizations allowed to pass out literature not only on campus but along Telegraph Avenue and Bancroft Way adjacent to it. Such organizations banned included Students for a Democratic Society, the Student Non-violent Cordinating Committee, the Congress of Racial Equality, and other civil rights organizations deemed subversive by university administrators. The son of a machinist, Mario Savio, ultimately led the demonstrators, resulting in several confrontations with police and numerous arrests, finally culminating in the sit-in demonstration at the main administration building on campus.

The fall of 1964 had been preceded by several years of tension between those favoring more politically fiery speakers on campus and the administration. The problems had extended into non-university affairs as well, when in 1960 students sought to occupy City Hall in San Francisco to protest the holding of more Red-hunt H.U.A.C. hearings there, being met by arrest and fire hoses, as blood ran in the hallways. On campus, Malcolm X had been banned as a religious spokesman in 1961 while Billy Graham had been allowed to speak. Clark Kerr, liberal president of the University, had sought nevertheless compromise with the conservative Board of Regents, the governing body of the University, and so supported the dichotomous ad hoc approach to disallowing certain speakers on obviously specious grounds. As a consequence of this policy of uneasy cooperation versus student protest of the limitations, by 1963, controversial speakers were to be allowed as long as followed on the same stage by "traditional" speakers. But when the University administrators banned the civil rights groups' activities on streets bordering the campus gates, matters quickly became more intensely confrontational until the Free Speech Movement was born. (Edwin Meese, later Attorney General under Ronald Reagan, was at that time District Attorney of Alameda County with jurisdiction over Berkeley, and prosecuted many of the sit-in strikers with a certain sadistic zest which is still unforgotten by those who were involved; Ronald Reagan used this confrontation between liberal forces and conservatives as his trumpet call in running successfully as a conservative Republican for Governor of California initially in 1966--a position which automatically by law made him head of the University Board of Regents. During the 1964 crisis, Pat Brown had been Governor and consequently head of the Board.)

The same sorts of issues, incidentally, were confronted on many other large campuses across the country in the early sixties, including Yale, the University of Michigan, the University of Wisconsin, and the University of North Carolina. In the latter case, the so-called Speaker Ban Law, involving much the same sort of subjectively selective limitations on speakers at state university campuses as that which took place in California, generated demonstrations on the campus at Chapel Hill and along Franklin Street adjacent to it, albeit with less confrontational consequence.

But, it was not quite so simple as the editorial suggests: The contract in question had to do with specifications of seniority status among employees and the right of the labor union shop committee to resolve disputes, that after forty-eight hours, to give the company and the committee time to resolve disputes, the employees could then take whatever action it deemed prudent, including calling a strike. The committee in this instance found that the company could shut down the entire plant but could not operate the shop in question even in accord with the contracted terms and that a strike was inevitable unless the company acquiesced to the committee's demands.

The Court stated, "It is evident that the respondent [Sands] realized that it had no alternative but to operate the plant in the way the men dictated, in the teeth of the agreement, or keep it closed entirely, or have a strike." As the company had, the Court found, in contrast to Fansteel, operated fairly with respect to the union and its organizing activity generally, and was only seeking to enforce its contract, not to impede it, the NLRB had exceeded its authority in requiring reinstatement of the striking workers when the strike was called only because the company was attempting to enforce the contract provisions. "Respondent [Sands] rightly understood that the men were irrevocably committed not to work in accordance with their contract. It was at liberty to treat them as having severed their relations with the company because of their breach and to consummate their separation from the company's employ by hiring others to take their places."

The dissent in this instance, also by Reed and Black, the only two Roosevelt appointees on the Court taking part in the decision, has no separate opinion to guide any contra view of this outcome, but undoubtedly, the dissenting justices again believed that the NLRB should be entrusted with the right to determine the issues as long as there was not a plain violation of the Board's legislative mandate to insure protection of the collective bargaining process. In other words, they felt the Court was acting as a super-Board.

In this instance, were they? The decision, of itself, being very fact intensive, suggests that the argument might be well-taken in this instance from a strictly procedural viewpoint. That is, challenge to the Board's fact-finding discretion by the remaining six "old men" of the Court, (newly installed Justice Frankfurter, taking no part in either decision), who had shown suspicion of New Deal advances generally, was undue, perhaps.

While the decision does present a logical argument, at least in the abstract, again, that strikes called against a company for merely trying to enforce labor contracts would not be legal, the Court was also governed by the language establishing Congress's intent to provide the Board wide discretion in fact-finding on such disputes. Section 10(e) of the original Act setting up the Board provided: "... The findings of the Board as to the facts, if supported by evidence, shall be conclusive", meaning by "evidence", according to Court interpretation, that the findings are supported by "substantial evidence", in turn meaning "more than a scintilla [of evidence], and must do more than create a suspicion of the existence of the fact to be established. 'It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"

And, the Court's conclusion turned on an interpretation of the contract, one which the Board found was not justified or at least which the workers would not have accepted as being justified. "The Board found that it was inconceivable that the employees would have accepted the company's construction of the contract even if they had been threatened with discharge at the time." [Emphasis supplied.] So...

Justice Black, in writing the dissent, stated, "I believe that 'The inferences to be drawn were for the Board and not the courts,' and that the inferences drawn by the Board were supported by the evidence. Courts should not--as here--substitute their appraisal of the evidence for that of the Board." He goes on:

So, the dissent makes clear that the majority carefully distinguished between what the conciliators discussed with the company president and whether the president then was aware that they were acting on behalf of the Union, finding he wasn't, when the dissent indicates the record was clear to the contrary. Thus, again, it sounds as if the dissent had the better of the argument.

The decisions collectively demonstrate the tension at work on the Court between the old guard justices, and Roosevelt's frustration with them, and the New Deal appointees--that is, the tension between industry and labor, between Republican laissez-faire philosophy and government intervention with and regulation of business advanced by the New Deal. The former had created the worst Depression in the country's history. The latter had created some advance away from it, albeit yet not fully realized by any stretch by this time in 1939, as plentifully indicated herein by Cash's carping editorials. At the end of the day, in hindsight, however, who had the better of the argument, aside from the abstract particulars of these three cases, in the long view?

It is interesting to note, also, that the very same sort of philosophy which held to the line of limiting interference in industry's relations with its workers, hove to the anchor against "judicial activism". But are not each of these decisions, interfering with the independence of an oversight board set up by Congress to insure rights to collective bargaining, not the grossest sort of judicial activism by the Supreme Court, essentially substituting itself as a fact-finding body, a super-hearing tribunal, by negating Board findings based on evidence heard directly before a Congressionally established oversight Board?

Has history not demonstrated that one man's "judicial activism" is another man's laissez-faire and vice versa, and thus an entirely specious form of objection generated largely in the subjective minds of Court observers dissatisfied with one decision or another? We think so.

Indeed, Roe v. Wade, the classic example of a decision trumpeted by conservative Court watchers as "liberal judicial activism", can be seen as nothing more than laissez-faire philosophy at work, government hands off the mother's right of choice. Eh? Who's "Conservative"? Who's "Liberal"? Perhaps, Mr. and Mrs. Red State best realize they may in fact, perhaps, God forbid, be Liberals!--judicial activists, (cf., Bush v. Gore)--as no less a bastion of liberality as Herbert Hoover, that grand champion of laissez-faire philosophy, said of the Republican Party in 1939...

We include also the letter to the editor below from syndicated columnist Dorothy Thompson. Incidentally, should you wonder why we never much include here additional editorials of Ms. Thompson but do of Hugh Johnson and occasionally others, it is simply happenstance. The General's column, or that of Heywood Broun, or the letters to the editor column, typically appears immediately next to the local editorial column, while Ms. Thompson's pieces appear on the opposite half of the page. The microfilm copier will only produce about one-quarter of a page per throw, and given time and budgetary constraints, at 10 centavos and about 30 seconds per copy, we rarely obtain any of Ms. Thompson's pieces from the twenty cents and minute's worth of copy it takes per diem of columns to obtain just the local editorials. Remedial of this noted deficiency, however, comes some new technology available since last summer at one of our resources, Wilson Library in Chapel Hill, enabling full-page digital reproductions at one time; and so we have a consequent store now of several months yet to come, beginning with the second half of April, 1939, which will afford us a glimpse at the whole page each day--as we will occasionally let you gander. (We won't directly upload these whole digitized pages, except occasionally, because they take up about 25 times the memory per date that the transcribed column requires, and the latter product is easier on your eyes to read anyway--besides, the dictation process itself, requiring extensive re-reading and correction afterward, insinuates the editorials better to our peawits.) Anyway, you will likely finally get to read some of Ms. Thompson's excellent and long ago lauded work, (Mrs. Roosevelt having been a devoted reader of her column), from during the latter three months of 1937 and some of the first eight months of 1938, and a few other scattered dates. Thus, be patient, fans of Ms. Thompson; not a deliberate slight; we'll get there.

Dear Sir:

Mr. Merwin Hart has protested to this column that the meeting on Sunday in the Seventh Regiment Armory was "no more a Coughlin meeting than it was a meeting on behalf of the Prime Minister of New Zealand or the Sultan of Zulu." The misapprehension which certainly was entertained by some who were present at the meeting was caused by the fact that the Coughlinite picketers who have been demonstrating daily before radio station WMCA attended the meeting in a body, were greeted--according to several witnesses--by the heartiest applause of the meeting, and apparently had seats reserved for them, since they came late, into a crowded hall, but found places.

One passage in my column was confusing, and several people believe that when I spoke of the "German speakers" I referred to the Armory meeting, which had none. This was not my intention. I meant the Madison Square Garden meeting, but on rereading I agree that the passage is ambiguous.

Copies of "Social Justice" and Father Coughlin's "Am I an Anti-Semite" were sold outside the Armory. Announcements of the bund meeting were distributed inside the meeting hall, according to an affidavit in my possession. Mr. Hart states that the committee had instructed the police not to allow this, and I take his word that such was the case.

New York City.

The trouble with the average reporter (no offense, boys; we said average reporter), is that he thinks it's wrong, or bad journalism, or sissy, to quote the living language exactly as people say it. Naturally, any able newspaper man performs such routine services as grammar-correcting and period-putting into sentences that, in speeches or in formal talks, aren't sentences at all. It's only fair to do that.

But have a look at this, a quote from Dr. Ralph W. McDonald, who ran against Clyde R. Hoey for Governor:

Think Dr. McDonald said that? Of course not. Nobody, nobody at all, ever talked like that. What the Doctor probably said was something like this:

Yeah, Doc. Betcha they would have been. You c'n quote us on that, too.

The natural assumption of one seeing in yesterday's News the architect's drawing of the veterans' hospital to be built near Fayetteville would be that here was a place in which the ill and maimed victims of this country's wars would be given refuge. Matter of fact, if patients of the Fayetteville hospital bear out the national average, only one in four will trace his disabilities to war service. The other three may be suffering from such non-military ailments as diseased tonsils, lumbago and bones broken in automobile accidents.

In time, patients with service-connected disabilities will be a rarity at this and other hospitals for veterans. War casualties have been decreasing year by year, but simultaneously the cost of hospitalization to the Government has been constantly increasing. This is due to the admission and free care of non-service-connected cases and to the fact that the bulk of World War veterans are now reaching middle age, a time of life when organs show disquieting signs of deterioration and constitutions protest the strain upon them.

So that many a North Carolina community disappointed at not getting the hospital that Fayetteville got will have other chances. For the Government, committed to the policy of socialized hospitalization for veterans, will have for years yet to come a growing clientele on its hands, and the 40-odd million dollars which it now spends annually for the operation of hospitals will increase several times over.

Site Ed. Note: The case, to which the editorial incidentally refers, from which Justice Holmes is quoted, is Buck v. Bell, 274 US 200, (1927). In an 8 to 1 decision, Harding appointee Justice Butler, (one of the "old men"), dissenting without opinion, the Court upheld the State of Virginia's law enabling compulsory sterilization of those institutionalized by the state, deemed mentally unfit and likely to pass on by heredity their insanity or imbecility to their offspring. The law was challenged on Equal Protection grounds, that those outside the institution were not similarly treated to those institutionalized, and that under no circumstances could a court decision to allow such compulsory sterilization be justified. After finding adequate procedural safeguards under the law, according Due Process, the Court, surrounding the quoted passage from Justice Holmes, stated more completely:

The decision points up how notions of society change over time, that it is now no longer considered reasonable, perhaps in large part resulting from the abuses brought to light after the War of the Nazis' eugenics program, to consider it rational to assume insanity and imbecility are necessarily hereditary. Indeed, we have witnessed the offspring of many very bright people who are either insane or imbecilic. In the particular case in issue, it was true that the woman was the daughter of a person deemed imbecilic and institutionalized, and in turn had a child likewise institutionalized. But, was that not the result perhaps of society's self-fulfilling prophecies at work, more based on nurture than nature? 'Twould seem rather difficult to raise a normal offspring within the confines of a mental institution. It is difficult enough within the mental institution we normally call society at-large. But that's just our opinion.

In any event, we would never wish to disagree too actively with Justice Holmes--or, for that matter, Cash, or H.L. Mencken. For it might be then that someone in the asylum, someone who refuses to yell "Fire!" precisely because the theater is overcrowded, even though a fire within the theater there may in fact be, (or even though there be only eight other people in it), might then adjudge us insane or imbecilic.

If your child is of school age and refuses to go or you refuse to make him go, the truant officer may call him and you into court, and the State may punish you. This is called compulsory education, and it is generally accredited with being a good thing. In any case, it is the law.

Last week the State Senate passed a bill making diphtheria inoculation compulsory for all children between six and twelve months. Before the bill went through, however, much discussion took place as to conflicts with religious scruples. There are sects which prohibit inoculation, vaccination or even medical treatment, and it was the fear of several Senators that the diphtheria bill violated this religious freedom. Finally, an amendment was adopted specifically exempting recognized members of any religious denomination which disapproves of medical treatment.

The principle of compulsory vaccination has been upheld by the Supreme Court for over ten years. Indeed, it has been attached to cover hospitalization, the late Justice Holmes observing dryly that "three generations of imbeciles are enough." So that there is unquestionable constitutional authority for refusing to exempt anyone from inoculation against diphtheria on the plea of religious scruple.

But wait: you haven't heard yet what are the penalties for declining to have children inoculated. They can't go to school. And that's unconstitutional!

Further Note: While Buck v. Bell is still good law, any state legislator seeking a law to start up this despicable practice of compulsory sterilization again, beware. In 1942, the Supreme Court indicated in Skinner v. Oklahoma, 316 US 535, an opinion by Justice Douglas, that the rights to marriage and to procreate are fundamental liberty interests under the Constitution, for "[m]arriage and procreation are fundamental to the very existence and survival of the race," and thus any law which might impede these rights is subject to "strict scrutiny", a form of scrutiny which normally results in striking down such a law, requiring a "compelling state interest" to justify it. In Skinner, at issue was a statute providing for compulsory sterilization of thrice-convicted felons, held unconstitutional.

We shall resist puns on Bell, Buck & Skinner, but you are free to have at it. Just remember, it could someday be you or yours who gets the Witch.

The stay-in strike at the Fansteel Metallurgical Co. in North Chicago two years ago was one of the worst cases of the epidemic that was raging at that time. A hundred or so men barricaded themselves in the plant against all-comers. In a couple days came 125 policemen and deputy sheriffs armed with guns, tear gas bombs, battering rams--and a court order for the eviction of the strikers. The officers let loose with tear gas, and were returned volleys of bolts, wrenches and bottles filled with nitric acid. After awhile the officers withdrew. There was talk of calling up the militia but Governor Horner, with the example of Governor Murphy of Michigan to go by, refused to take the risk of bloodshed.

A day or so later the law returned to the attack. Wheeling up a tower built on a truck, they shot tear gas and nauseating gas bombs into the upper windows of the plant, and finally the strikers came gasping out. There were warrants for their arrest, but they were allowed to escape.

And that is where the law made its mistake. The Fansteel strikers should have been dealt with under the traditional laws against trespass, riot, resisting officers and a half-dozen other charges. The National Labor Relations Board, however, when the company discharged its rioters, took jurisdiction under the Wagner Act. It held that Fansteel's management had refused to bargain with the strikers and therefore ordered the stay-inners reinstated.

To this the Supreme Court replied, in the majority decision read by Chief Justice Hughes, Black, J., and Reed, J., dissenting:

Thus vanishes any vestige of a doubt about the illegality of stay-in strikes.

The Fansteel fracas was the most sensational of the labor cases decided by the Supreme Court yesterday. But perhaps the most important was that of the Sands Manufacturing Co. of Cleveland, Ohio, against the Labor Board.

The company had a contract with a union of its employees containing a clause which bound the employees not to strike. Negotiations over dispute reaching an impasse, the employees struck in violation of their contract. The company proceeded on the assumption that they had separated themselves from its employ, which was their right, but the Labor Board, coming into the case at the behest of the employees, ordered the company to take them back. This the company refused to do.

Justice Roberts read the decision, to which Black, J., and Reed, J., again dissented, as they did to all three of the labor cases decided yesterday. And while the court's language is commendably clear on the point of law enunciated, we think we can make it even clearer.

Sic: When employees under contract not to strike nevertheless do strike, the law takes it that they have quit, and the company may engage other workers to take their places.

We like the spirit of this Mr. H. H. Everett, who will pardon, we trust, so public a reference. Some seventeen years ago he came to Charlotte with a company that distributed moving pictures, and in time, surviving mergers and expansions, came to be sales manager for eleven Southern states. A few days ago his company notified him that he would be transferred to New York, which we take to have been a promotion.

Now, after seventeen years in one locality, a man is bound to have become pretty well rooted. He and his family have made their friends, found their interests, adapted themselves to their environment. Oh, it may seem a pretty prosaic existence if you should stand off and look at it critically, and there's nothing, to be sure, so stimulating as a change to new surroundings, new faces, new ways. Big city ways in particular.

But, by and large, the old way, like an old shoe, is comfortable and familiar. It may be lacking in excitement, yet it makes up for that in the quiet satisfaction of tried friends. And while the big city has its advantages, the provinces do have their own charm, not the least of which is the fact that the other provincials are people very much like yourself, with an appreciation of leisure and an inclination toward sociability that more than takes the place of glittering (and costly) entertainment.

So our Mr. Everett, thinking upon these things and probably realizing instinctively that he didn't care to be moved, declined to make the transfer, gave up his position and took up business for himself. We compliment his spirit and move that he be received into full fellowship as a dyed-in-the-wool Charlottean.