chairman should not have disapproved the payment of overtime to modification center employees until he had appointed an Emergency Board to investigate the matter. Pointing out that the Executive order called for appointment of an emergency board when the proposed change was not modified to conform to the prescribed standards, the court of appeals held that this was not necessary when the wage changes were modified. Such a modification was held to have taken place when the airline company abandoned its plan for paying overtime.

War Plant Employees. A 1947 judgment of a district court held employees of a cost-plus-fixed-fee contractor operating a government-owned munitions plant were entitled to overtime compensation under the FLSA. The Eighth Circuit Court of Appeals reversed the lower court and held that employees of such plants were not covered by the act. The appellate court did not consider the validity of the other arguments made by the employer on appeal. When the United States Supreme Court reversed the court of appeals, it held such employees to be covered by the act and remanded the case for disposition of the questions left open by the appellate court's decision.

Among the other questions raised by the employer on appeal from the district court were whether (1) the employees' allegations as to the number of overtime hours worked were sufficiently definite, (2) the time so worked was proved to be compensable within the meaning of the Portal-to-Portal Act, (3) the employees' workweek was on a 48-hour and not a 40-hour basis, (4) the employees were exempt as administrative employees, and (5) the trial court erred in refusing to permit the employer to plead the good-faith defenses of the Portal Act.

The employees' claim for overtime was based in part on a 30-minute lunch period and on periods before and after the regular shift, during which the employees were required to perform certain duties. A pamphlet, distributed to employees immediately after hiring, stated that the company would pay for the 30-minute lunch period. Another company bulletin stated that working time would begin 30 minutes prior to the beginning of the shift. In the light of these facts, the court of appeals held that the employees had sufficiently shown the exact number of overtime hours for which compensation was due and that such time was compensable. However, the court remanded the case to the district court to give the employees an opportunity to plead the compensability of such work so as to comply formally with the Portal Act.

Contradictory evidence existed as to whether employment was on a 48-hour or a 40-hour week basis. There was a statement to the effect that employment was on a 40-hour basis made by the employer when these employees were hired. Employees working less than 40 hours a week were docked for the number of hours less than 40. In view of this evidence, the trial court's decision could not be said to be clearly erroneous as to require reversal.

The court of appeals held that the administrative exemption did not apply to safety engineers. They, said the court, had no right to instruct other employees as to their conduct, except in emergencies, had only slight technical

920504-51-5

training or experience, and were not consulted as to changes in practices.

The trial court was held to have erred in refusing to permit the employer to plead the "good faith" defenses provided by sections 9 and 11 of the Portal Act (enacted only 5 days before the entry of judgment) and to offer evidence in support of such pleadings. Defenses under the Portal Act, the court of appeals pointed out, could be raised any time before the entry of final judgment. Enforcement-False Information Act. In a criminal prosecution under the False Information Act, the Court of Appeals for the Fifth Circuit held that the Government must allege and prove that the employer giving the false information to a Wage and Hour Division inspector, was subject to the Fair Labor Standards Act.

The False Information Act makes it a crime knowingly or willfully to falsify or conceal a material fact, or make any false statements or representations in any matter within the jurisdiction of any department or agency of the United States.

The Government alleged that an employer falsified and concealed a material fact, the true basis of employment of a named employee, the same being a matter within the jurisdiction of the Wage and Hour Division of the Department of Labor. The employer's defense was that the indictment did not allege that he was subject to the Fair Labor Standards Act. Giving false information to a Wage and Hour inspector in a preliminary investigation to determine coverage, the Government contended, was sufficient and in any event, the indictment had in fact alleged that the employer was subject to the FLSA. The lower court rejected these arguments and upheld the employer.

The appellate court sustained the lower court on the first point, stating that the statute made "materiality” of the false information an essential ingredient of the offense. Information was held not to be "material" unless the employer were subject to the FLSA. The court also pointed out that the false statement, to be punishable, had to concern a matter within the jurisdiction of an agency of the United States. The statement could not come within this category, the court held, unless the employer were subject to the act.

However, the case was sent back to the lower court for a trial on the issues raised by the indictment-i. e. whether the matters charged in the indictment were material and within the jurisdiction of the Wage and Hour Division. Labor Relations

9

Discharge for Failure to Cross Picket Line. The National Labor Relations Board upheld a trial examiner's decision that an employer had violated section 8 (a) (3) of the amended National Labor Relations Act by discharging an employee who refused to cross a picket line in the performance of his duties.

Part of the duties of a clerk employed by a brokerage firm consisted in substituting on the floor of the New York Stock Exchange for the firm's regular floor clerk during his absence and during busy periods. This clerk had other duties in the firm office, which was outside the

stock exchange building. At the time that the stock exchange was picketed by a local of the International Union of Office Employees (AFL), the employee, a union member, refused to cross the picket line when asked by his employers to perform his duties as a relief floor clerk. Shortly after the strike ended he was dismissed from his employ. The trial examiner found that the discharge was due to his refusal to cross the picket line, although the employers claimed that the employee's discharge was for business

reasons.

The trial examiner held the employee's refusal to cross the picket line to be concerted activity protected by section 7 of the NLRA, not only because of the employee's membership in the union, but because of the possible effect of the strike on his own working conditions. That he was

the only union member in his firm was held immaterial in that he was acting in concert with fellow members in the exchange. The trial examiner pointed out that concerted activity was not confined to proximate employer-employee relationships. Cases 10 holding discharge of persons for engaging in a "partial strike" to be legal were distinguished on the ground that in those cases the means used or object sought were illegal and constituted a unilateral attempt by employees to fix their own work terms. Refusal to cross a picket line, it was pointed out, represented a timehonored method of assisting concerted union action.

The trial examiner pointed out that section 8 (b) (4) of the LMRA, prohibiting certain secondary strikes and boycotts, expressly excepted from its provisions a refusal by any person to enter upon the premises of any employer (other than his own) if the employees of such employer were engaged in a strike ratified or approved by a representative of such employees whom that employer is required to recognize under the act. It would be absurd, the examiner said, to permit a union to encourage its employees not to cross a picket line and yet to allow an employer to discharge such employees for refusing to do so.

The Board affirmed the opinion of the trial examiner without interpreting section 8 (b) (4), except to state that neither that section nor any other amendments to the act had deprived an employee of his right to engage in this form of concerted activity.

Union Security—Discrimination-Back Pay. The NLRB considered the respective liabilities of an employer and a union for discrimination against nonunion workers and workers discharged at the request of the union.

During a strike arising from failure of a union and an employer to agree on the amount of wage increase in the negotiation of a new contract, a striking employee, finding that a union leader had incorrectly stated the amount of pay increase the employer was willing to grant, inquired in regard to disaffiliation of the plant employees from the international union. Upon discovering this, the union agent directing the strike informed the employer that the discharge of this employee was a condition precedent to settling the strike. The employer at first demurred, but finally agreed to rehire the employee after the strike for one hour and then fire him. The employee stated that he did not want to be the cause of prolonging the strike and would personally try to work out a settlement. The new contract

contained a provision that all present employees must become members of the union immediately and that new workers must join within 28 days of beginning employment. This agreement clearly violated section 8 (a) (3) of the amended NLRA.

The union's request to the employer to sign this agreement was held not "per se" a violation of section 8 (b) (2) of the amended NLRA. This section prohibits a union from causing or attempting to cause discrimination in employment. But the union's execution of such agreement was held to be more than persuasion, and to violate such provision.

As to the discharge of the employee in question, the union was held to have violated section 8 (b) (2) by insisting on such discharge as a condition for ending the strike. With two members dissenting, the Board held both the employer and the union jointly and severally liable for back pay due this employee. While the employer discharged the employee only at the union's insistence the Board pointed out that in fact, the employer, and only the employer, controls the hiring and discharging of employees. It was his duty, said the Board, to resist usurpation of that control where such usurpation would result in discrimination in violation of the act. The case

was held analagous to that of joint tort-feasors being made jointly and severally liable although one acted under duress. Making the union solely liable, the Board said, would encourage employers to yield to such union pres

sures.

The dissenting opinion stressed that section 10 (c) provided for back pay to be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by the employee. The Board was thereby given discretion to assign liability. The dissenting members thought that the employer's control over hiring and firing should be viewed in the light of the economic pressure created by the strike.

Interference-Prohibition of Union Solicitation on Company Property. An employer's rule against distribution of union literature on company property does not constitute interference in violation of the NLRA when the small size of the plant enables the union to distribute such literature to employees outside the plant gate, the NLRB ruled.12

The Board distinguished this case from a previous decision 13 holding prohibition of union solicitation on plant property was a violation of the NLRA. The distinction was that in that case the employer's plant was located on a large tract of land and employees boarded buses inside that tract and such buses did not stop at the gateway to the property, so that the union had almost no chance to contact the employees.

In the instant case the employer's plant was on property 50 x 120 feet with only one entrance. The employees boarded buses across the street from the plant gate. Therefore the union had ample opportunity to distribute literature to employees as they left the plant property.

Economic vs. Unfair Labor Practice Strike. Reversing an NLRB decision, 14 a Federal court of appeals held 15 that an employer's statement that employees engaged in an

economic strike would be replaced if they did not return to work, did not convert an economic strike into an unfair labor practice strike. Therefore, upon the ending of the strike the strikers were not entitled to get their old jobs back where they had been "permanently" replaced.

The court held that the employer could have replaced the economic strikers without giving them any notice. Giving them notice, and thus an opportunity for reinstatement, did not, the court held, constitute any interference with the employees' right to organize. Contrary to the Board, the court held that a letter sent to the strikers in which the employer stated the strikers would be replaced unless they came back by a certain date was not the cause for the prolongation of the strike. The strike was prolonged, said the court, by the union's insistence that certain union members-"second millers"-be included in the bargaining unit. The union did not recede from this demand until almost two months after the employer sent the letter.

Although the union's amended charge was filed with the Board more than 6 months after the unfair labor practice occurred the court held that the union's charge was not barred by the 6-month statute of limitations provided in the amended NLRA. The amended charge was held to relate to the original charge, which was filed within the 6-month period.

Refusal to Bargain. An employer's protracted litigation of issues previously decided and its recourse to court proceedings, when coupled with refusal to engage in collective bargaining as to wages, hours, or conditions of employment, was an unfair labor practice within the meaning of section 8 (a) (5) of the amended NLRA. So ruled 16 the NLRB on October 24, 1950.

Because of other actions showing a refusal to bargain— reduction of piece rates without consulting the union and soliciting strikers individually to return to work-the Board found it unnecessary to rule on the validity of the trial examiner's failure to find that the institution of court proceedings in itself constituted interference with union activities in violation of section 8 (a) (1) of the act. But the Board did find that such action was inextricably part of the employer's refusal to bargain.

Appropriate Unit—“Fringe” Groups. Overruling a number of previous decisions," the NLRB ruled 18 that a small "fringe" group of clerical employees in a plant should be included in the same bargaining unit with production and maintenance employees, although these employees had never before been covered by contracts between the petitioning union and the employer. The Board's previous practice had been to conduct a self-determination election among the employees in the fringe group as to whether they wished to belong to the larger unit. In this case, the fringe group consisted of 8 clerical employees not covered by the previous bargaining history dating since 1937.

Inclusion of the fringe group in the larger unit was held to be the most efficient and practical method of insuring all employees in the same circle of common interest equal benefits from collective bargaining and equal opportunity to select representatives. The effect of the previous policy

was to exclude from collective bargaining fringe employees who were too few in number and too indistinct to be independently organized.

Chairman Herzog dissented, asserting that permitting the fringe group a separate election gave its members a chance to decide whether they currently wish to be included with employees in the larger unit without being overwhelmed by the members in the larger unit. Member Reynolds also dissented.

Commerce. The NLRB asserted 19 jurisdiction over a franchised automobile dealer although the business was locally owned and no cars were sold by the dealer outside the State. The dealer had an agreement with General Motors Corporation giving him the exclusive privilege of selling Chevrolets in Fowler, Calif., subject to certain controls as to location, service, facilities, etc.

In so ruling the Board stated that, though locally owned, the business was an essential element in a Nation-wide system devoted to the manufacture and distribution of automobiles. It must therefore be considered as an integral part of a multi-State enterprise over which the Board had previously exercised 20 jurisdiction.

Decisions of State Courts

Connecticut-Fair Employment Practices. In the first decision interpreting the State fair employment practice law a Connecticut lower court upheld 21 the findings of the State Interracial Commission that an employer had violated the act by refusing to hire an individual because of his race.

The act makes it an unfair employment practice for an employer, except in case of a bona fide occupational qualification or need, to refuse to hire any individual because of race, color, religious creed, or national ancestry.

In this case the employer refused to employ one Draper, a 23-year old Negro who had answered the employer's newspaper advertisement for "boys, 18 years or over. Experience unnecessary." The employer told Draper that the advertised job was taken, but shortly thereafter hired four white applicants, aged from 18 to 23, as dishwashers or fountain men in ice-cream stores. The first of these was employed 21⁄2 hours after Draper's interview. The employer's manager told the investigator of the Interracial Commission that Draper's application was refused because the job was filled, Draper was too old and the wages were too low for a man of his age. Draper was found by the Commission to be capable of fulfilling the duties of the job for which he applied. The Commission found that the employer had refused him the job because of his race and ordered the employer to employ him.

Pursuant to the act, the employer appealed from the Commission's order. The court held that the inferences drawn by the Commission from the evidence were reasonable and that its findings were based on substantial evidence. It held that the fact that Draper was not made a party to the proceedings was not material. However, the court held that the commission's order that the employer cease from refusing to hire Draper be modified to "cease to refuse to hire Draper because of his race" if he should

again apply for employment. It pointed out that since the employer's refusal to hire Draper, circumstances might have changed so that the position sought was no longer vacant or Draper might not now desire such a job.

Missouri-Injunction-State vs. Federal Jurisdiction. The Missouri Supreme Court upheld 22 an injunction granted by a lower court restraining picketing and obstruction of a road leading to a coal mine. The fact that the picketing might violate the Federal Labor-Management Regulations Act provisions against picketing for a closed shop was held not to prevent a State court from taking jurisdiction.

It was alleged in the petition for the injunction that members of the United Mine Workers had obstructed the road leading to the mine by parking cars on the road to obstruct traffic and by walking in crowds on the road.

The supreme court held that the obstruction of a public road such as that leading to the mine could be enjoined as a public nuisance. It was no defense to the injunction, the court held, to show that private property was also being protected or that the acts for which an injunction was sought were also violations of the criminal law. Since the issue had not been raised in the answer to the petition for injunction, the union could not now argue that it could not be sued as an entity, but only by suit against its individyal members. The court also held that the State law permitting class suits (against representatives of a class of persons) permitted the suit against the union itself.

New York-Picketing to Compel Discrimination Against Women Enjoined. A New York trial court held 23 that picketing to compel an employer to cease employing female bartenders was for an unlawful object and enjoinable.

The picketing was performed by a union of male barThe tenders, membership in which was closed to women. union demanded in effect that the employer's place be unionized and that she discharge all the barmaids then in her employ and replace them with male bartenders.

In holding the picketing illegal, the court pointed to a previous decision 24 of the New York Court of Appeals that a closed union may not lawfully demand a closed shop. A union which arbitrarily denied membership to a certain person or class of persons could not lawfully prevent their employment, that court held, both because of the duty of a bargaining representative to represent all employees in the bargaining unit without discrimination, and because of the liability of one intentionally injuring another person without excuse.

The discrimination in this case was held to be unjustified.

The fact that employment of barmaids might lower wage scales was held not to justify a monopoly in favor of bartenders. Alleged detriment to the public morals and to the liquor dispensing business was held not a ground for action by the union, but a subject for consideration by the legislature. The union had produced insufficient evidence to support its claims and had not shown that the employment of barmaids was more detrimental in these respects than the employment of waitresses at restaurants dispensing liquor. While the State labor laws and other laws did not expressly cover discrimination on account of sex, the court pointed out that the principle against discrimination was not limited to instances specifically covered.

1 Prepared in the U. S. Department of Labor, Office of the Solicitor. The cases covered in this article represent a selection of the significant decisions believed to be of special interest. No attempt has been made to reflect all recent judicial and administrative developments in the field of labor law or to indicate the effect of particular decisions in jurisdictions in which contrary results may be reached, based upon local statutory provisions, the existence of local precedents, or a different approach by the courts to the issue presented.

This section is intended merely as a digest of some recent decisions involving the Fair Labor Standards Act and the Portal-to-Portal Act. It is not to be construed and may not be relied upon as interpretation of these acts by the Administrator of the Wage and Hour Division or any agency of the Department of Labor.

Tipton v. Bearl Sprott Co. (D., S. D. Cal., Oct. 18, 1950).

4 Northwest Airlines, Inc. v. Jackson (C. A. (8th), Nov. 6, 1950). Powell v. U. S. Cartridge Co. 339 U. S. 497, Monthly Labor Review, July 1950, p. 133.

• See note 5.

1 U. S. Cartridge Co. v. Powell (C. A. (8th), Oct. 26, 1950).

8 U. S. v. Moore (C. A. (5th), Nov. 8, 1950).

In re de Cordova (91 NLRB No. 187, October 25, 1950).

10 Internat. Union, U. A. W. v. Wisconsin ERB, 336 U. S. 245.

11 In re Acme Mattress Co., Inc. (91 NLRB No. 169, October 18, 1950).

12 In re Newport News Children's Dress Co., Inc. (91 NLRB No. 230, November 6, 1950).

13 National Labor Relations Board v. Le Tourneau Co., 324 U. S. 793. 14 In re Kansas Milling Co. (86 NLRB No. 136), Monthly Labor Review, January 1950, p. 65.

15 Kansas Milling Co. v. National Labor Relations Board (C. A. (10th), November 9, 1950).

16 In re Allanta Metallic Casket Co. (91 NLRB No. 188, October 24, 1950).

17 In re Petersen & Lytle (60 NLRB 1070).

18 In re Waterous Co. (92 NLRB No. 29, November 15, 1950).

10 In re Baxter Bros. (91 NLRB No. 233, November 6, 1950).

20 In re Borden Co., 91 NLRB No. 109, Monthly Labor Review, December 1950, p. 717.

21 Draper v. Clark Dairy, Inc. (Conn Super. Ct., New Haven County, October 10, 1950).

22 State of Missouri, ex rel. Allai v. Thatch (Mo. Sup. Ct., November 13, 1950).

23 Wilson, doing business as Royal Pheasant Restaurant v. Hacker (N. Y. Sup. Ct., Trial Term, Erie Co., November 13, 1950)

4 Clark v. Curtis (297 N. Y. 1014), Monthly Labor Review, November 1948,

p. 523.

Chronology of
Recent Labor Events

November 13, 1950

THE PRESIDENT, by Executive Order No. 10180, established special personnel procedures for civil service workers during the existing emergency. (Source: Federal Register, vol. 15, No. 222, Nov. 15, 1950, p. 7745; for discussion, see p. 53 of this issue.)

November 14

THE NATIONAL LABOR RELATIONS BOARD, in the case of Alliance Ware, Inc., and International Brotherhood of Blacksmiths', Drop Forgers, and Helpers (AFL), ruled that the union's electioneering from sound trucks within hearing of polling place during election hours warrants setting aside election. (Source: Labor Relations Reporter, 27 LRRM, p. 1040, Nov. 20, 1950.)

November 17

THE NLRB, in the case of John Hancock Mutual Life Insurance Co., and Samuel Kohen, ruled that refusal to hire a former supervisor for a nonsupervisory job, because he testified against the employer at an NLRB hearing, is discriminatory. (Source: Labor Relations Reporter, 27 LRRM, p. 1058, Nov. 27, 1950.)

November 19

FOUR MAJOR NETWORKS and the television authority (representing 5 AFL affiliates) narrowly averted a strike with a 2-year agreement-the first in the industry. Entertainers were granted increased fees and protection in the use of Kinescope recordings of live shows. (Source: AFL Weekly News Service, Nov. 21, 1950.)

THE COMMUNICATION WORKERS OF AMERICA (CIO) ended an 11-day strike (see Chron. item for Nov. 9, 1950, MLR, Dec. 1950) against the Western Electric Co. on terms including 9 to 14-cent hourly wage increase and a 15month contract. (Source: CIO News, Nov. 27, 1950; for discussion, see p. 54 of this issue.)

November 20

THE NLRB, in the case of Depew Paving Co., Inc. and Napoleon Sargent, ruled that discharge of employee, after learning through questioning him that he was not a union

Reporter, 27 LRRM, p. 1057, Nov. 27, 1950.)

THE CONGRESS OF INDUSTRIAL ORGANIZATIONS opened its 12th annual convention at Chicago, Ill. (Source: New York Times, Nov. 21, 1950, and CIO News, Nov. 27, 1950; for discussion, see p. 8 of this issue.)

November 27

THE SECRETAry of Labor issued an order, effective January 6, 1951, prohibiting employment of minors between the ages of 16 and 18 years in occupations (except clerical and auxiliary jobs) connected with mines (other than coal), quarries, clay pits, sand and gravel operations, metals mills and washer plants. (Source: Federal Register, vol. 15, No. 237, Dec. 7, 1950, p. 8680.)

THE ACTING Administrator of the U. S. Department of Labor's Wage and Hour Division established minimum hourly wages in Puerto Rico of 45 cents for the general division and 53 cents for the heavy products and industrial division of the metal plastics, machinery, instrument, transportation equipment, and allied industries, effective January 1, 1951. (Source: Federal Register, vol. 15, No. 232, Nov. 30, 1950, p. 8184.)

On November 28, a minimum hourly wage of 40 cents was approved for the structural clay and miscellaneous clay products division of the clay and clay products industry in Puerto Rico, effective January 1, 1951. (Source: Federal Register, vol. 15, No. 233, Dec. 1, 1950, p. 8217.) November 28

LEFT-WING UNIONS expelled from the CIO agreed at a conference held in Washington, D. C., that they would set up an "informal working alliance." (Source: Labor Relations Reporter, vol. 27, No. 9, 27 LRR, p. 49.)

AFTER 16 YEARS, the Amalgamated Clothing Workers (CIO) and the Palm Beach Co. signed their first collectivebargaining agreement, providing pay increases of 13 percent and company-financed social welfare coverage under the ACW plan. (Source: CIO News, Dec. 4, 1950.)

THE 9-MEMBER WAGE STABILIZATION BOARD took the oath of office (see Chron. item for Oct. 9, MLR Nov. 1950). (Source: U. S. Dept. of Labor Press Service, week of Dec. 4, 1950.)

On December 6, the Senate confirmed Mayor Michael V. DiSalle of Toledo, Ohio, as Director of Price Stabilization. (Source: Congressional Record, vol. 96, No. 201, Dec. 6, 1950, p. 16360.)

November 29

THE 17TH ANNUAL CONFERENCE on Labor Legislation convened in Washington, D. C., with State labor officials and representatives of organized labor attending. (Source: U. S. Dept. of Labor release $51-695, Nov. 29, 1950; for discussion, see p. 45 of this issue.)