The Charlotte News
Wednesday, May 18, 1938
Site Ed. Note: "Task for Solomons" refers to In re National Labor Relations Board, 304 US 486, ultimately decided May 31.
That to which the editorial refers was only the issuance of an order to show cause by the Supreme Court to the Third Circuit Court of Appeal as to why the relief sought by the NLRB, that of a petition for prohibition and mandamus to the lower court restraining it from issuing an order to the NLRB to file a transcript of proceedings held before it when it issued certain orders, as mentioned in the editorial, against Republic, and further restraining NLRB from taking further action in the matter until it complied with the filing of the transcript, should not be granted.
Before the Supreme Court, the issue was whether the Court of Appeal had jurisdiction to make such an order at the time it was made, as the NLRB's order had not yet been finalized making it otherwise subject to the Court of Appeal's jurisdiction.
In fact, on May 3, NLRB had determined to vacate its order against Republic, apparently in response to the case decided April 25 in Morgan v. U.S., 304 US 1, the one we have just dealt with in prolixity on May 15 in relation to "Man on a Quagmire", wherein it was determined essentially that the Secretary of Agriculture, to accord due process in hearings before him, must have the same person charged with making a decision in a given matter review the evidence proffered by the parties, in that case the government and the stock-yard commission men who set maximum rates chargeable by the stock-yards, as well as give proper notice of the charges brought against the allegedly offending party.
As the New York Times editorial of May 2 had indicated, this decision of April 25 had prompted the NLRB to reconsider the Republic case wherein NLRB had issued an order without Republic being heard, in accordance with its rules then in effect. While the Board had typically permitted parties to present briefing and oral argument upon request, Republic had not sought to be heard.
Republic then appealed the order of the Board on the basis that it had not received a fair hearing and requested preparation by the Board of a transcript. The Board indicated it would prepare the transcript but then, on April 30, indicated it might withdraw the order (presumably in light of the Morgan ruling).
Notwithstanding, Republic's lawyers sought and obtained on May 3 the Court of Appeals order restraining further action by the Board and ordering forthwith the transcript be filed; the same day the Board decided to withdraw its previous order against Republic but, given the order by the Court of Appeals, believed it could not do so.
It then sought the petitions from the Supreme Court blocking the Court of Appeal's orders as being without jurisdiction since no final order had yet been entered by the Board in light of its desire to withdraw its previous order and its claimed right to do so within a reasonable time.
The Supreme Court agreed with the Board ultimately in its May 31 decision, granted the petitions against the Court of Appeals on the basis that the Court of Appeals had entered its orders without jurisdiction as the Board had desired to withdraw its order and grant a new hearing in which Republic would be given notice of opportunity to file briefs and participate in oral argument before the Board, in accordance with the Board's new policy inaugurated on April 25 in light of Morgan and by the new procedures so giving affirmative notice to all parties so to do, as well to have an interim report by a trial examiner to be made before all hearings, presumably so that the corporate lawyers would have something to shoot at.
Well, the Supreme Court didn't actually order all that, mind you, only that the NLRB had the right within a reasonable time to withdraw an earlier order and hold new hearings, depriving the Circuit Court of jurisdiction to act on the original order to prepare a transcript and desist from further activity in the case otherwise.
Hmmm, by the way, those burgers were good. Shards of steel flaking off the grill though got into our teeth a bit, necessitating a trip to the dentist yesterday, it being Saturday, prompting triple time wages to the dentist's assistant, passed to us. Probably some Republic Can again.
Just why, incidentally, the Republic lawyers went to all this trouble to seek to accomplish something procedurally through the courts which NLRB had already indicated it was going to do, pushing the NLRB lawyers all the way into the Supreme Court to block the Court of Appeal, well, we don't know.
One could posit that Republic Cans wanted to try to embarrass the New Deal; one could posit that the corporatista attorneys for Republic Can wanted to pad their accounts and demonstrate their usefulness, proving once again, corollary to the Peter Principle, the Harry Principle, that once a person is hired for a job which any Tom, Dick or Harry might do, they will forever seek to justify the necessity of their existence in that job, whether in fact they are necessary or not, by engaging in the most absurdly complicated behavior to accomplish a result which might have been accomplished to the savings of the pocketbooks of all, especially the taxpayers, through the most simple of devices--and not guns, hired or otherwise.
Rather, once again, the admonition of Secretary Wallace appears borne out here as well, the notion that undoubtedly several thousands of dollars in lawyers' fees to Republic Can, several thousand dollars in lawyers' fees to the government, not to mention the time of both the Circuit Court and the Supreme Court--better used in dealing with other matters before it than in deciding on an emergent basis in a month's time a purely procedural question which, in the end, broke no new legal ground not decided in Morgan, itself a big waste of time over a period of years--, could have been saved with the simple device of a one-minute phone call or cursory telegram from Republic Can's lawyers to NLRB going something like this:
Received your most magnanimous indication of consideration to relent in your repugnantly pusillanimous order to us, the inscrutable, re how we treat our most shiftless and disgruntled workers, the troublemakers among us, certainly in the extreme minority, not hardened and tempered as with most of us here at Republic who, as a result, are a most happy family generally in our private and public lives, obviously.
Indeed, most of our workers will join us on the mill lawn for a company picnic on Memorial Day, to which ya'll are also most warmly invited and we shall drink some beer, roast some burgers and have a good laugh about all of this nonsense.
Shall await your decision before further action.
Robb, Steel, Udder, Weiss, Cheatham, & Des Troye,
Estimable Squires for Republic Can.
In his address to the jury in a murder case yesterday, Solicitor John Carpenter gave almost a resumé of this newspaper's prime editorial causes. Nineteen Negro murders in this city since the first of the year... the slums breed crime like rats breed... fire hazard... almost all the criminals brought into court come from the slums... diseased prostitutes... Negro procurers...
It's pretty hard, if not wholly unnatural, to refrain from applauding a man when he voices your own sentiments; and forthwith, for his diatribe on conditions to which the City authorities and the people generally are apathetic, we applaud Mr. Carpenter. Ah, yes; but a running obligata to our editorial theme song has been the lack of concern which the public prosecutor manifests in Negro murder cases. In spite of this city's appalling crime rate, only two convictions of Negro killers of Negroes for murder in the first degree have been obtained in the last seven or eight years, and to the commutation of one of these death sentences, the solicitor had no objection.
You can indict conditions, and indicted these should be; but you can't put conditions in jail, and you can't deter murder in even the most salutary environments without demanding a life for a life. Let us clean out the slums, by all means, but meanwhile let the State exact the full measure of vengeance for murder.
Candidates for Genuflection
It looks as though Boss Guffey and John Lewis and a lot of other people, including Jim Farley and maybe personages even mightier than Jim, may as well make up their minds to play the same role to George Earle that the burghers of Paris played to young Lord Gargantua the time when, being at school at the Sorbonne, he took down the bells from the great Church of Our Lady to make a necklace for his mare. Which is to say, wait on him humbly, cap in hand, and ask what terms he chooses to grant.
For if ever man was master of a situation, Earle seems to be master of that in Pennsylvania. Boss Lewis, the United Mine Workers and the CIO had all broken with him and sworn to get him. But they didn't. On the contrary, he has beaten them more roundly than any observer thought possible. And at the same time, the Republicans have gone to bat for him by snowing old Gifford Pinchot under by an overwhelming vote. If the latter had succeeded in getting the GOP nomination for the Governorship, Lewis would still have had somewhere to go. Quite probably, he would have organized his following into what would have amounted to a third party, holding the balance of power between Earle and Pinchot, and so would have been in position to bargain with advantage. But as it is, he really can't do anything but line up with Earle on the terms Earle names. The Republican candidate for the Governorship is a militant conservative, who stands against everything Lewis and his union stand for, and the Republican candidate for the Senate is old Puddler Jim Davis, one of the pet aversions of the CIO and many others.
As for Boss Guffey, he's in the same boat with Lewis--has no choice but to go along with Earle on Earle's terms, or see the Republicans win. And for the Republicans to win would probably mean the extinction of Boss Guffey himself when he next comes up for re-election.
And Farley? Well, Farley did urge Pennsylvanians to vote for Earle, but at the same time he urged them to vote against Earle's candidate for the Governorship, one of the Jones boys, and in favor of Tom Kennedy, the Lewis-Guffey candidate. And now that Earle has won that, too, and with it the mastery of Pennsylvania, he'll probably want at least a little revenge.
There is one hole in Earle's armor, certainly--that he has been charged with making some dubious deals with Matt McCloskey, a Philadelphia contractor, and with a lot of monkey business with the WPA. But those charges, while they may have washed him up as a candidate for the Presidency in 1940, are most difficult to prove. And with things standing as they are, it is immensely unlikely that anybody is going to show any enthusiasm for proving them.
So, all in all, we'll probably see some extensive cap-doffing and knee-bending soon.
Annotating a Speech*
Ladies and Gentlemen:
Five and one-half years have passed since I assumed [Assumed: v., 3. To take in appearance only.] office and tonight... I deem it most appropriate and fitting to render... an account of my stewardship in the United States Senate. My radio time unfortunately will not permit a lengthy and detailed discussion. [The which is fortunate, for neither will the stewardship.]
I am humbly proud to have been accorded the enviable opportunity of participating in the efforts and activities of the administration headed by our great leader, President Franklin D. Roosevelt. [Oh, yeah? How about the World Court Bill, the St. Lawrence Seaway, the Kerr Immigration Bill, overriding the veto of the Independent Offices Appropriation Bill of 1934, the Bonus, and numerous public expressions at odds with the administration's foreign policy?] Carrying out the pledges made in my campaign of 1932, I later enlisted in the battle which was started... under the administration of our beloved President to help wrest the nation from the paths of despair... [They wrested this way, they wrested that, until many of the wresters hardly knew where they were at.] We have not as yet reached the road of satisfaction and perfection that is expected... [For confirmation, consult a reliable index of business activity.]
My vote on every legislative issue is a matter of record. Straddling or dodging votes has never been in accord with my ideas of public service. And this record will show that every vote I have cast on the floor of the United States Senate has been a vote in the interest of the wage-earner, the farmer, the veteran, the aged, the youth, the advancement of education and for the promotion of business and industry.
"When people ask me, 'where will we find the money?' I reply, 'Where did we find the seven billions we spent during the last (1934) Congress?'"
I have stood shoulder to shoulder with the liberal legislators... [Huey Long?]
...The record will show that during the past six years I was present on the Senate floor and voted on every important piece of legislation--voted in the interest of the people. [And yet, when in 1935 the Senate looked around for one who could be most easily spared for investigation of the Virgin Islands, who got the call? Correct!]
It was a genuine pleasure to have had the opportunity to vote for legislation beneficial to North Carolina, such as that designed to create a great national seashore park... [A handout.] to have assisted in obtaining Federal funds for the construction of a huge port terminal at Morehead City; [A handout.] to have taken part in the establishment of the humanitarian project at Penderlea... [A handout.] to have assisted in every way possible to obtain authorization for new veterans hospital in Eastern North Carolina... [A handout.] to have assisted in securing for all sections of our state numerous Federal projects designed to benefit the general welfare of our people; (Handouts.) to have aided in bringing to Western North Carolina the benefits of the Tennessee Valley Authority through the construction of the mammoth Hiawassee Dam; [A handout.] and to have been able to co-operate in securing the necessary funds for the completion of the Great Smoky National Park and the big Park to Park Highway. [More handouts.]
Task for Solomons
The Supreme Court decision Monday, that under the National Labor Relations Act workmen on strike remain employees and that the Republic Steel Company must reinstate the 5,000 men it refused to let come to work after the strike last Summer, is, we take it, sound law. The obvious intention of the statute is to make it possible for workmen to strike, when they cannot come to terms with their employers by other methods, without incurring the loss of their jobs as a penalty.
We're willing to believe, too, that the decision is probably sound justice.
Still, some doubt lingers as to the practicability of the thing. The trouble with enforcing a law that a man must not be discriminated against because of union activity is in determining when such discrimination is actually the cause for his dismissal. The court assumed to say in this decision that the claim of the steel company that these men had been dismissed for other reasons than union activity was not the fact. And there will be few people to question the court in this particular case. But it is easy to think of any number of possible cases in which the judges would have to be very Solomons to determine whether an employer was really discriminating against a man because of union activity or merely exercising his legitimate right to fire him for inefficiency, insubordination, trouble-making or what have you.
Site Ed. Note: NLRB v. Mackay Radio & Telegraph Co., 304 US 333, was decided, incidentally, on May 16, and involved the issue of which the editorial speaks. There the Court held, despite claims by Mackay that the hearing before the NLRB was held without according proper notice of the charges and hence Due Process, that it was and that the company did discriminate in firing five workers for union activity in violation of the National Labor Relations Act as administered and enforced by the Board, as supported by the evidence properly marshalled before it to which the company had adequate opportunity to respond.
So, if that is the case, the one about the radios, not the Republic Cans, then, well, never mind.
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