and seizure of its papers and records through the issuance of subpenas. In addition to these pleadings and affidavits in opposition to the application for a temporary injunction, motions to dismiss the bill of complaint were interposed. Finally, it was, in almost every case, necessary to draft special appearances, together with motions to quash process, in behalf of Board members named in suits but not properly subject to the jurisdiction of the courts outside of the District of Columbia. All of these pleadings had to be specifically adapted to each particular case. Each required the attention of skilled litigation counsel, as well as a great amount of stenographic work, all done under very great pressure of time. Upon the return day of applications for temporary injunctions in such suits it was necessary to send counsel to argue the cases throughout the country. These injunction proceedings were constantly being brought before district judges, who had had no prior contact with or knowledge of the National Labor Relations Act. Some judges had the impression that this act was one providing for compulsory arbitration. Others thought that it was merely a statute of conciliation. Elaborate arguments were also required, covering the mechanics of the act as well as the applicable rules of equity jurisdiction. The result of this litigation in injunction cases has been as follows: District courts:1 Suits commenced__ Applications for temporary injunctions defeated.... (a) By denial.. (b) By granting motions to quash (c) By withdrawal of suit. Applications for temporary injunctions granted.. Circuit courts of appeals: 2 Appeals perfected__ Denial of temporary injunctions affirmed. Pending -- Stays pending appeal denied__ Stays pending appeal granted.... Supreme Court of the United States: " Petitions for certiorari to review denial of injunction_- Petitions denied___. 1 See pp. 56-7-8 infra for list of cases. * See pp. 58-9 infra for list of cases. 1 Bradley Lumber Co. v. National Labor Relations Board (certiorari denied Oct. 12, 1936). It will be noted that the overwhelming weight of authority sustains the Board in its contention that courts of equity have no jurisdiction to interfere with the statutory procedure provided under the act. In those cases in which district courts have granted injunctions against Board proceedings, the Board has, almost without exception, perfected appeals to the appropriate circuit courts of appeals. Only one of these cases has been decided in a circuit court. That decision was in Stout v. Pratt, where the Eight Circuit Court of Appeals held it unnecessary to pass upon any constitutional issues but took the posi tion that it would not disturb the exercise of discretion by the district court in granting temporary injunctive relief pending final hearing. The other cases are awaiting argument or decision-1 in the first circuit, 1 in the sixth, 3 in the eighth, and 10 in the seventh. In all cases in which appeals have been decided by circuit courts where the district court had denied an injunction, the circuit courts have held the denial was proper, and in most cases have affirmed the dismissal of the bill of complaint, indicating that the question was one of law and not of discretion. B. ENFORCEMENT LITIGATION There are two principal questions of constitutional law involved in the act, namely, (1) its general validity and application to particular factual situations under the commerce clause, upon which it is based; and (2) the validity of particular provisions under the due process clause of the fifth amendment. The questions arising under the fifth amendment are the same in all cases, since the general problem in that regard is whether the particular regulations involved in each case deprive the employer of the liberty guaranteed by the due process clause of the fifth amendment to the Constitution. Hence, decision of such questions will not vary with differences in the facts of the various cases. But decision upon the question of the scope of the application of the act under the commerce clause may vary with the facts disclosed at the hearing concerning the nature of the employer's operations and the occupations of the particular employees involved. Hence, the Board conceived it to be in the interest of all parties concerned, employers, employees, and the public generally, to obtain from the courts, as promptly as possible, decisions in a variety of cases involving the extent of application of the act. Notwithstanding the injunction suits, the Board was able to hear and decide, during the first year of its operation, a considerable number of cases conducted under the procedure of the act. As a practical matter, it would have been impossible for the Board, in view of its limited budget and personnel, to seek enforcement of all its orders in these cases. Furthermore, such a course would have been unnecessary and inadvisable, since the decision of a typical case in any circuit court of appeals would settle the issues in that circuit pending the ultimate judgment of the Supreme Court. The first decision and order of the Board to be presented to a circuit court of appeals was in a case against the Pennsylvania Greyhound Lines, Inc., involving that company's relations with certain employees at its Pittsburgh garage. The complaint alleged the discharge of several employees for union activity, certain acts of intimidation, and domination of a company union, involving unfair labor practices 8 (1), (2), and (3). The hearing of the Board was held October 22 to 26, 1935. The Board's decision was rendered December 7, 1935. The record in the case and the Board's petition for enforcement were filed with the Circuit Court of Appeals for the Third Circuit on December 10, 1935. The court denied a motion for preference and did not hear the case until April 1, 1936, when it was 1 Sec. 10 (1) of the act provides: "Petitions filed under this act shall be heard expedi argued after the filing of briefs by both sides. The court has not yet decided the case. On September 9, 1936, it notified the Board that it desired reargument of the case. Reargument was had on October 6. 1936. The effort of the Board in this particular case to obtain an early determination of the application of the act to interstate transportation, and the validity of the first three unfair labor practices under the fifth amendment, did not bear fruit. Recognizing the possibility of such delay, the Board, on February 27, 1936, petitioned the Circuit Court of Appeals for the Ninth Circuit to enforce an order previously issued in a case against the Mackay Radio & Telegraph Co. This case had been heard before the Board's trial examiner at San Francisco from December 2 to 20, 1935, and involved only the charge that certain employees had been discharged for union activity. The Board's decision sustaining the charges was rendered February 20, 1936. The court set the case for argument on April 16, 1936, and it was then argued and briefs were filed, but decision has not yet been rendered. The Board followed by filing with the Circuit Court of Appeals for the Fourth Circuit still another interstate transportation case. this one against the Washington, Virginia & Maryland Coach Co. Discriminatory discharge was again the basic issue. The Board hearing was held on March 23 to 26, 1936, and its decision was rendered May 21, 1936. On June 5, 1936, the order of the Board, together with the record, was filed with the court for enforcement. The case was argued on July 2, 1936. On October 6, 1936, the court upheld the act and the Board's order in this case. On October 17, 1936, the company filed its petition with the Supreme Court, asking that a writ of certiorari issue to review this decision, and this petition was granted on October 26, 1936. The case against the Associated Press is another case of interstate communication. The complaint in this case, centering upon charges that Morris Watson, an editorial employee, had been discharged for union activity, was originally set for hearing on January 8, 1936. An injunction suit was filed to prevent the hearing. The injunction was denied and suit dismissed on March 31, 1936. The Board case was then promptly heard on April 7 and 8, 1936, with Dean Clark, of the Yale Law School, acting as trial examiner for the Board. Dean Clark made detailed findings of fact in his intermediate report as to the nature of the respondent's business, the character of work performed by the editorial employees, and the circumstances leading up to the discharge of Watson. He found that any cessation of the work of the employees in the New York office would cause a break in the flow of foreign news and of important domestic news, which would seriously impede the issuance of newspapers in all parts of the country, and that the policy of the act seems clearly applicable to the situation disclosed by the record. The Board's decision and order was made May 21, 1936. The Associated Press having stated that it would not comply, the Board, on May 26, 1936, petitioned the Circuit Court of Appeals for the Second Circuit for enforcement. The case was argued before the court on June 16, 1936. On July 13, 1936, the court upheld the order of the Board and the constitutionality of the act as applied in this case. On September 14, 1936, the Associated Press filed its petition with the Supreme Court of the United States asking that a writ of certiorari issue to review this decision. The Board joined in the prayer for review. On October 26, 1936, the Supreme Court granted certiorari. The Associated Press case and the Washington, Virginia and Couch Co. case should determine the validity of the act in its general scope and its application to employers in their relations with employees engaged in interstate transportation, communication, or the like, as well as important questions arising under the fifth amendment. The Board has also filed three additional cases with circuit courts, which may be classed as interstate transportation or kindred thereto, as follows: Delaware-New Jersey Ferry Co.-This company operates ferryboats at two points on the Delaware River for the transportation of persons and property between the States of Delaware and New Jersey. The hearing, on a complaint of failure to bargain collectively, was held on October 31, 1935, and the Board's decision was rendered on January 2, 1935. Upon subsequent noncompliance, petition for enforcement was filed in the Circuit Court of Appeals for the Third Circuit on April 27, 1936. The case has not yet been set for argument. Agwilines, Inc.-This involves certain employees of an interstate steamship line. The unfair labor practices complained of were discharge for union activity and failure to bargain collectively, involving sections 8 (1), (3), and (5). The hearing was held at Tampa, Fla., May 7, 8, 9, and 11, 1936. The Board's decision was rendered July 3, 1936, and on July 16, 1936, the Board petitioned the Circuit Court of Appeals for the Fifth Circuit for enforcement. The case was argued on October 15, 1936. The National New York Packing & Shipping Co.-This company is engaged in what may be called an interstate brokerage business. It consolidates numerous individual shipments destined for interstate commerce into one such shipment. The unfair labor practices alleged are 8 (1) and 8 (3). The hearing was held in New York City on March 17 and 18, 1936. The Board's decision was rendered June 29, 1936, and its petition for enforcement of its order was filed in the Circuit Court of Appeals for the Second Circuit on July 29, 1936. Argument was had on October 19, 1936, and on November 2, 1936, the court upheld the order of the Board and the constitutionality of the act as applied in this case. A considerable number of the hearings and decisions of the Board were cases involving or including manufacturing or production employers and employees, where the employer was engaged extensively in buying and selling in interstate commerce as a regular course of business. In such cases it was the Board's position that industrial disturbances among such production or manufacturing employees in interstate enterprises have the intent or the necessary effect of burdening or obstructing commerce within the meaning of the term "affecting commerce" contained in section 2 (7) of the act. In order to obtain judicial determination of the application of the act under the commerce clause of this class of cases, the Board, in addition to de stances in which injunction suits were filed, has carried on enforcement litigation to uphold its orders in such cases. The case against the Fruehauf Trailer Co. was the first case of this type to be taken into court by the Board. The case was heard by the Board itself at Detroit on November 6, 7, and 8, 1935, on a complaint alleging the discriminatory discharge of certain employees engaged in production operations. Decision was rendered on December 14, 1935, and almost simultaneously, on December 17, 1935, the company and the Board petitioned the Circuit Court of Appeals for the Sixth Circuit for enforcement and review of the order and decision of the Board. The court heard the case on June 2, 1936, and on June 30, in a per curiam decision, held the order of the Board in this case could not be enforced stating the power of Congress under the commerce clause did not extend to any regulation of the relations between an employer and employees engaged in production. On April 11, 1936, the Board filed its petition with the Circuit Court of Appeals for the Fifth Circuit to enforce its order against the Jones & Laughlin Steel Corporation. The unfair labor practices involved are the same as those of the Fruehauf case, i. e., discriminatory discharge of employees engaged in manufacturing operations. The case was argued June 1, 1936, and on June 15, in a per curiam decision, the court rendered a decision similar to that in the Fruchauf case. A like result followed in a similar case against the Friedman-Harry Marks Clothing Co. in which the Board petitioned the Circuit Court of Appeals for the Second Circuit for enforcement of its order. This case was argued and decided simultaneously with The Associated Press case previously referred to. The same is true of Foster Brow Mfg. Co. v. National Labor Relations Board. decided on October 6. 1936, by the Circuit Court of Appeals for the Fourth Circuit, decided simultaneously with the Washington, Virginia, and Maryland Coach Company case, also referred to above. and Friedman-Harry Marks cases have been filed in the Supreme Petitions for writs of certiorari in the Jones & Laughlin. Fruehaut. Court. On November 9, 1936, the Court granted the petition pass on the constitutionality of the act itself. Instead, they held at In none of the foregoing four cases did the circuit courts of apprais the particular order of the Board under the facts of the cat the power of Congress under the commerce clause and therefore was beyond the power of the Board under the statute. The decision of the Supreme Court of the United States in Carter Coal Cgrupiny v Carter, decided May 18, 1936, under the Bituminous Coal Converva arising under the statutory procedure the constitutioranty of the w has been directly passed upon. These caves are th0% of the Arr ciated Press and the Washington. Virginia & Maryad Coach Co. tion Act of 1935, was relied upon in each instance. In two m previously discussed herein, in which the Creult Cours of of the Second and Fourth Circuits. respectiveir. have beig act is within the commerce power of the Feneral Governmen not violative of any other constitutional prombone The order o the Board in these cases were upheld The Eth credit an the constitutionality of the act in the Brady Lumber Colla |