McNeely & Price Co. v. National Labor Relations Board

• Decision Date: 21 September 1939
• Docket Number: No. 6777.,6777.
• Citation: 106 F.2d 878
• Parties: McNEELY & PRICE CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Third Circuit

106 F.2d 878 (1939)

McNEELY & PRICE CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 6777.

Circuit Court of Appeals, Third Circuit.

September 21, 1939.

Roy Martin Boyd, of Philadelphia, Pa., for petitioner.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Laurence A. Knapp, Ruth Weyand, Alan F. Perl, Mortimer B. Wolf, and Bertram Edises, all of Washington, D. C., Attys., National Labor Relations Board, for respondent.

Before MARIS and CLARK, Circuit Judges, and KIRKPATRICK, District Judge.

CLARK, Circuit Judge.

This appeal relates to an order of the National Labor Relations Board directing the reinstatement of individuals who had participated in a sit-down strike. At the argument counsel for the Board admitted that the case would be governed by the ultimate decision of Fansteel Metallurgical Corp. v. National Labor Relations Board 7 Cir., 98 F.2d 375, then argued, but undecided, in the Supreme Court. In spite of this concession, after the handing down of the opinion in National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, counsel for the Board has filed a supplemental memorandum attempting to distinguish the case at bar.

The futility of relying on differences rather than distinctions is possibly "caviare to the general" but is certainly hornbook to the barrister. We realize that in the ordinary case this might be said to be an amiable weakness in which a bar, anxious for and perhaps in need of victory, indulges itself. Here we think the gesture is more than idle. It is harmful to both the National Labor Relations Board and to a wise solution of the problem of collective bargaining. We think it hurts the Labor Board because our decision must reemphasize a mistake on their part. We say mistake not in the sense of a failure to see eye to eye with the majority of the high court in interpreting a rather ambiguous statute. Such disagreements are constant in cases where the legislative words are intended generally and predictably and the contingency is particular and unexpected.

In this instance, the discord goes, we think, deeper. It is not assenting to Mr. Dooley's famous characterization to say that courts should take into consideration their duty and ability to lead (not follow) public opinion in directions consonant with the welfare of the democracy they serve. We do not have to be judicial Gallups to believe that the words of the distinguished Chief Justice are such a leading. We quote them: "* * * The seizure and holding of the buildings was itself a wrong apart from any acts of sabotage. But in its legal aspect the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company, or the seizure and conversion of its goods, or the despoiling of its property or other unlawful acts in order to force compliance with demands. To justify such conduct 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." National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 495, 83 L.Ed. 627.

By the same token, we think the insistence upon this appeal is a disservice to the best interests of the "labor movement" and so a disservice to the national life of which it is such a vital part. Articles in two recent (1937-38) law reviews, McClintock, Injunctions Against Sit-down Strikes, 23 Iowa Law Review 149, The Relative Status of the Sitdown Strike in the Development of Labor Law, 23 Virginia Law Review 799 (note), give a bibliography of the sit-down strike in this country. See, also, Buisson, L'Occupation Des Usines Et Le Droit Francais, Rev. des deux mendes, Nov. 1936, Serie 8, 236, pp. 35-50. One of the learned authors, Professor McClintock, observes: "Last spring the air was electric with discussions of sit-down strikes, in which the strikers stayed at their posts instead of walking out. On the one hand it was asserted that labor had discovered a new tactic which at last enabled it to cease work without quitting the job and had thereby added immeasurably to its bargaining power; on the other hand, fears of the final breakdown of law and order and the protection of rights of property were widely proclaimed and the situation was regarded as so portentous that many who had publicly deplored the recent rapid extension of federal power into fields formerly left to state control, demanded that the President take some action to curb the use of this new weapon, though the preservation of internal law and order had always been regarded as the one subject matter which was most clearly within the exclusive control of the states. Six months later we find that both hopes and fears have subsided. The use of the sit-down tactic in strikes has been found to result in disadvantages that in many, if not most, strikes outweigh its advantages, not the least of the disadvantages being the antagonism of public opinion. Sit-down strikes are now of comparatively rare occurrence instead of being in progress in a score of places at once. For this reason, fears of their disastrous consequences to our government have been allayed. A discussion of the relation of sit-down strikes to the law is not now so timely as it would have been a short time ago, but for that very reason it may be possible to consider it more calmly and to weigh the various conflicting interests with less passion." Injunctions Against Sit-down Strikes, 23 Iowa Law Review 149.

The other learned writer phrases it thus: "These decisions (sustaining the Wagner Act, National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352) should have two effects on the sitdown situation. First, by giving the Wagner Act greater scope and the National Labor Relations Board wider power and a consequently greater opportunity to adjust labor difficulties, the pressing need of labor for a sanction to enforce its right to organize and bargain collectively, free from interference by employers, is almost totally removed. Thus the need for sit-downs is correspondingly lessened. Second, with the Federal Government assuming broad jurisdiction over labor conditions, it will be forced either to a legal recognition or denunciation of the sitdown. It seems that, in view of the now lessened need for the power of the sitdown, the government would logically make it illegal. Further, since sitdowns are even more obstructive of interstate commerce than walkouts, the Supreme Court's holding that the Federal Government could regulate labor because strikes impede such commerce would almost seem to force action against the sitdown. Thus a survey of the evidence would seem to justify a conclusion that the sitdown, in addition to its present common law illegality, will be expressly outlawed by Congress in the near future." The Relative Status of The Sit-down Strike In The Development Of Labor Law, 23 Virginia Law Review 799, 815 (note).

To these summaries, we believe that all friends of labor and, more than that, labor itself, say amen. Our regret is that the National Labor Relations Board does not seem conscious of their accuracy.

We began this opinion by suggesting the entire absence of a distinction. We might almost have gone further and have questioned the presence of a difference. There seem to be two dissimilarities in fact. In the case at bar, (1) the employing company did...