National Labor Relations Board v. Mackay Radio Telegraph Co

• Decision Date: 16 May 1938
• Docket Number: No. 706,706
• Citation: 58 S.Ct. 904,304 U.S. 333,82 L.Ed. 1381
• Parties: NATIONAL LABOR RELATIONS BOARD v. MACKAY RADIO & TELEGRAPH CO
• Court: U.S. Supreme Court

304 U.S. 333

58 S.Ct. 904

82 L.Ed. 1381

NATIONAL LABOR RELATIONS BOARD

v MACKAY RADIO & TELEGRAPH CO.

No. 706.

Argued April 5, 6, 1938.

Decided May 16, 1938.

[Syllabus from pages 333-335 intentionally omitted] Messrs. Homer S. Cummings, Atty. Gen., and Charles Fahy, of Washington, D.C., for petitioner.

Mr. Louis W. Myers, of Los Angeles, Cal., for respondent.

Mr. Justice ROBERTS, delivered the opinion of the Court.

The Circuit Court of Appeals refused¹ to decree enforcement of an order of the National Labor Relations Board.² We granted certiorari because of an asserted conflict of decision, 303 U.S. 630, 58 S.Ct. 644, 82 L.Ed. —-.³

The respondent, a California corporation, is engaged in the transmission and receipt of telegraph, radio, cable, and other messages between points in California and points in other states and foreign countries. It maintains an office in San Francisco for the transaction of its business wherein it employs upwards of sixty supervisors, operators and clerks, many of whom are members of Local No. 3 of the American Radio Telegraphists Association, a national labor organization; the membership of the local comprising 'point-to-point' or land operators employed by respondent at San Francisco. Affiliated with the national organization also were locals whose members are exclusively marine operators who work upon ocean-going vessels. The respondent, at its San Francisco office, dealt with committees of Local No. 3; and its parent company, whose headquarters were in New York, dealt with representatives of the national organization. Demand was made by the latter for the execution of agreements respecting terms and conditions of employment of marine and point-to-point operators. On several occasions when representatives of the union conferred with officers of the respondent and its parent company the latter requested postponement of discussion of the proposed agreements and the union acceded to the requests. In September, 1935, the union pressed for immediate execution of agreements and took the position that no contract would be concluded by the one class of operators unless an agreement were simultaneously made with the other. Local No. 3 sent a representative to New York to be in touch with the negotiations and he kept its officers advised as to what there occurred. The local adopted a resolution to the effect that if satisfactory terms were not obtained by September 23 a strike of the San Francisco point-to-point operators should be called. The national officers determined on a general strike in view of the unsatisfactory state of the negotiations. This fact was communicated to Local No. 3 by its representative in New York and the local officers called out the employees of the San Francisco office. At midnight Friday, October 4, 1935, all the men there employed went on strike. The respondent, in order to maintain service, brought employees from its Los Angeles office and others from the New York and Chicago offices of the parent compay to fill the strikers' places.

Although none of the San Francisco strikers returned to work Saturday, Sunday, or Monday, the strike proved unsuccessful in other parts of the country and, by Monday evening, October 7th, a number of the men became convinced that it would fail and that they had better return to work before their places were filled with new employees. One of them telephoned the respondent's traffic supervisor Monday evening to inquire whether the men might return. He was told that the respondent would take them back and it was arranged that the official should meet the employees at a downtown hotel and make a statement to them. Before leaving the company's office for this purpose the supervisor consulted with his superior, who told him that the men might return to work in their former positions but that, as the company had promised eleven men brought to San Francisco they might remain if they so desired, the supervisor would have to handle the return of the striking employees in such fashion as not to displace any of the new men who desired to continue in San Francisco. A little later the supervisor met two of the striking employees and gave them a list of all the strikers together with their addresses, and the telephone numbers of those who had telephones, and it was arranged that these two employees should telephone the strikers to come to a meeting at the Hotel Bellevue in the early hours of Tuesday, October 8th. In furnishing this list the supervisor stated that the men could return to work in a body but he checked off the names of eleven strikers who he said would have to file applications for reinstatement which applications would be subject to the approval of an executive of the company in New York. Because of this statement the two employees, in notifying the strikers of the proposed meeting, with the knowledge of the supervisor, omitted to communicate with the eleven men whose names had been checked off. Thirty-six men attended the meeting. Some of the eleven in question heard of it and attended. The supervisor appeared at the meeting and reiterated his statement that the men could go back to work at once but read from a list the names of the eleven who would be required to file applications for reinstatement to be passed upon in New York. Those present at the meeting voted on the question of immediately returning to work and the proposition was carried. Most of the men left the meeting and went to the respondent's office Tuesday morning, October 8th, where on that day they resumed their usual duties. Then or shortly thereafter six of the eleven in question took their places and resumed their work without challenge. It turned out that only five of the new men brought to San Francisco desired to stay.

Five strikers who were prominent in the activities of the union and in connection with the strike, whose names appeared upon the list of eleven, reported at the office at various times between Tuesday and Thursday. Each of them was told that he would have to fill out an application for employment; that the roll of employees was complete, and that his application would be considered in connection with any vacancy that might thereafter occur. These men not having been reinstated in the course of three weeks, the secretary of Local No. 3 presented a charge to the National Labor Relations Board that the respondent had violated section 8(1) and (3) of the National Labor Relations Act.⁴ Thereupon the Board filed a complaint charging that the respondent had discharged and was refusing to employ the five men who had not been reinstated to their positions for the reason that they had joined and assisted the labor organization known as Local No. 3 and had engaged in concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection; that by such discharge respondent had interfered with, restrained, and coerced the employees in the exercise of their rights guaranted by section 7⁵ of the National Labor Relations Act and so had been guilty of an unfair labor practice within the meaning of section 8(1) of the act. The complaint further alleged that the discharge of these men was a discrimination in respect of their hire and tenure of employment and a discouragement of membership in Local No. 3, and thus an unfair labor practice within the meaning of section 8(3) of the act.

The respondent filed an answer denying the allegations of the complaint, and moved to dismiss the proceeding on the ground that the act is unconstitutional. The motion was taken under advisement by the Board's examiner and the case proceeded to hearing. After the completion of its testimony the Board filed an amended complaint to comport with the evidence, in which it charged that the respondent had refused to re-employ the five operators for the reason that they had joined and assisted the labor organization known as Local No. 3 and engaged with other employees in concerted activities for the purpose of collective bargaining and other mutual aid and protection; that the refusal to re-employ them restrained and coerced the employees in the exercise of rights guaranteed by section 7, and so constituted an unfair labor practice within section 8(1) of the act. The amended complaint further asserted that the refusal to reemploy the men discriminated in regard to their hire and tenure of employment and discouraged membership in Local No. 3 and thus amounted to an unfair labor practice under section 8(3) of the act. The respondent entered a general denial to the amended complaint and presented its evidence. At the conclusion of the testimony the Board transferred the cause for further hearing before the members of the Board at Washington and, after oral argument and the filing of a brief, made its findings of fact.

The subsidiary or evidentiary facts were found in great detail and, upon the footing of them, the Board reached conclusions of fact to the effect that Local No. 3 is a labor organization within the meaning of the act; that 'by refusing to reinstate to employment' the five men in question, 'thereby discharging said employes,' the respondent by 'each of said discharges,' discriminated in regard to tenure of employment and thereby discouraged membership in the labor organization known as Local No. 3, and, by the described acts, 'has interfered with, restrained and coerced its employes in the exercise of the rights guaranteed by section 7 of the National Labor Relations Act.' As conclusions of law the Board found that the respondent had engaged in unfair labor practices affecting commerce within the meaning of section 8, subsections (1) and (3), and section 2, subsections (6) and (7),⁶ of the act. It entered an order that respondent cease and desist from discharging, or threatening to discharge, any of its employees for the reason that they had joined or assisted Local No. 3 or otherwise engaged in...