Labor Board v. Mackay Radio & Telegraph Co.,
304 U.S. 333 (1938)

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U.S. Supreme Court

Labor Board v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938)

National Labor Relations Board v. Mackay Radio & Telegraph Co.

No. 706

Argued April 5, 6, 1938

Decided May 16, 1938

304 U.S. 333


1. The Circuit Court of Appeals has jurisdiction to entertain a petition for rehearing, filed at the same term and in time under its rules, of a judgment denying an application of the National Labor Relations Board for enforcement of an order, and the three months within which a petitioner must apply to this Court for certiorari to review the decision in such case runs from the date of the order entered upon the petition for rehearing. P. 304 U. S. 343.

2. Following the failure of negotiations looking to an agreement in respect of terms and conditions of employment, employees of a company engaged in the transmission and receipt of radio, telegraph, and cable messages, interstate and foreign, went on a strike. The company brought employees from its offices in other cities to take the places of the strikers. Subsequently, all but five of

Page 304 U. S. 334

those who had been on strike were taken back into tho employ of the company. A proceeding was had before the National Labor Relations Board upon a complaint against the company charging that its nonemployment of the five was a discrimination against them on account of union activities and that it was guilty of unfair labor practices. After a hearing, and upon findings of fact and conclusions of law, the Board ordered the company to cease and desist from discharging or threatening to discharge, any of its employees because of their membership in the union or on account of union activities; to refrain from interfering with, restraining or coercing its employees in respect of self-organization and collective bargaining, and required the company to reinstate to their former positions, with back pay, the five men who had not been reemployed, and to post notices to the effect that members of the union would not be discriminated against.


(1) Under the findings, the strike was a consequence of, or in connection with, a "labor dispute" as defined in § 2(9) of the National Labor Relations Act. It was not necessary for the Board to find what the state of the negotiations was when the strike was called, nor, in so many words, that a "labor dispute" existed. P. 304 U. S. 344.

(2) Their work having ceased as a consequence of, or in connection with, a current labor dispute, § 2(3), the strikers remained "employees" of the company for the purposes of the Act, and were protected against the unfair labor practices denounced by it. P. 304 U. S. 345.

(3) Discrimination in reinstating employees who had been on strike by excluding certain of them for the sole reason that they had been active in the union was an unfair labor practice prohibited by § 8 of the Act. P. 304 U. S. 346.

However, it was not an unfair labor practice for the company to replace its striking employees with others in an effort to carry on the business; nor was the company bound later to discharge such others in order to reinstate the strikers. P. 304 U. S. 345.

(4) The Board's finding that, in reinstating employees who had been on strike, the company discriminated against those who had been most active in the union was supported by evidence. P. 304 U. S. 346.

(5) The provision of the Act continuing the relationship of employer and employee in the case of a strike as a consequence of, or in connection with, a current labor dispute does not violate the Fifth Amendment. P. 304 U. S. 347.

Page 304 U. S. 335

In the exercise of the commerce power, Congress may impose upon contractual relationships reasonable regulations calculated to protect commerce against threatened industrial strife.

(6) The affirmative relief ordered by the Board was within its powers, and its order was not arbitrary or capricious. P. 304 U. S. 348.

(a) Complete relief in respect of the five men discriminated against justified their being given their former positions and reimbursement for loss resulting from the discrimination. P. 304 U. S. 348.

(b) In respect of back pay for those ordered to be reinstated, deductions are to be allowed for all sums earned to the date of reinstatement. P. 304 U. S. 348.

(c) The clause of the order in respect of the posting of notices to be read in connection with other parts forbidding discharge on account of union activity, and not as requiring notice that reinstated employees would not be discharged for any reason whatever. P. 304 U. S. 348.

(7) A claim that the company was denied a hearing with respect to the offense found by the Board, because of variance between the findings and the charges on which the complaint was based, examined and rejected. P. 304 U. S. 349.

3. At the conclusion of the testimony, and prior to oral argument before the trial examiner, the Board brought the proceeding before it, heard oral argument, and received briefs, after which it made its findings of fact and conclusions of law. The issues and contentions of the parties were clearly defined. Held, the submission of a tentative report by the trial examiner and a hearing on exceptions to that report were not essential. P. 304 U. S. 350.

4. The Fifth Amendment guarantees no particular form of procedure; it protects substantial rights. P. 304 U. S. 351.

87 F.2d 611, 92 id. 761, reversed.

Certiorari, 303 U.S. 630, to review a judgment denying an application of the National Labor Relations Board for the enforcement of an order.

Page 304 U. S. 336

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