Selective Training and Service Act

Breach of contract with union in order to reinstate veteran.-A Federal district court, in Feare v. North Shore Bus Co.,' decided that the breach by an employer of his contract with a union in order to reemploy a veteran in his former position does not render such reemployment "unreasonable." In this case the veteran, a bus driver, claimed the right to be reinstated to the particular run to which he had been assigned before his induction. To comply with this request would require violation by the employer of a contract with the union as to seniority in the assignment to runs. The court held that the statute and its interpretation by the United States Supreme Court require the conclusion that reemployment under these conditions is not an "unreasonable" situati ›n.

Requirement that the veteran mitigate damages.-A secondary issue in the Feare case involved the question of whether a veteran who has been refused reemployment rights is under a duty to mitigate the damages the employer will be required to pay by seeking employment elsewhere, a duty which would be imposed in the usual contractual situation. The court in this case held that the veteran is under no such obligation. Referring to the fact that the act was designed to protect veterans against sacrifice of employment and seniority because of military service, the court said: "To hold that employers can compel such sacrifices, and then put the returned veteran to his proof of the amount by which his money loss could have been diminished, is to encourage the very thing that the act was designed to prevent."

A contrary result was reached, however, in another district court." In that case the court held that the veteran was under an obligation to mitigate the damages, and the damages were reduced by the amount the veteran could have earned elsewhere for the period during which his employer had refused him reinstatement.

Reemployment rights of railroad trainee.-Relying on decisions of Federal circuit courts which have held that workers engaged by railroads as trainees for various railroad yard positions are not "employees" within the meaning of the Fair Labor Standards Act, a district court recently decided 10 that veterans who were such trainees before their induction have no reemployment rights under the Selective Training and Service Act. The court argued that such rights

'U. S. D. C. E. D. N. Y., Oct. 15, 1946. See also Monthly Labor Review, March 1946 (p. 437) and June 1946 (p. 919).

8 Dodds v. Williams (U. S. D. C. Ariz., Nov. 20, 1946).

As for example, Walling v. Nashville, Chattanooga, and St. Louis R. R. (155 F. (2d) 1016, 1945). See Monthly Labor Review, July 1946 (p. 101).

10 Fields v. Southern Railway Company (U. S. D. C. E. D. Tenn., Oct. 22, 1946).

require the existence of an employer-employee relationship, and no such relationship existed in the case of the trainees in question.

National Labor Relations Act

"Captive audience" doctrine.-In its first test by a circuit court of appeals, the doctrine of "captive audience" enunciated by the National Labor Relations Board was rejected. This doctrine is concerned with the question of what constitutes the type of coercive statements by employers which are forbidden by the act, and in defense of which the constitutional guaranties of free speech will not prevail. It holds that one species of such coercion arises when the employer makes a speech in opposition to a union seeking to organize his employees at a meeting which he has required his employees to attend. A speech under such circumstances had been delivered in this case," and the Board maintained that this constituted coercion. The court held, however, that it did not, ruling that "the occasion on which the employer elects to utter his thoughts is not to be considered an element of coercion." It further stated that "one need not, as a condition precedent to his right of free speech under the first amendment, secure permission of his auditor."

In addition to the above ruling, the court in this case rejected another principle that has been applied by the Board in holding that the discharge of union members for refusing to process orders, believed by them to be normally intended for, a plant that had been "struck" by their union, did not constitute an unfair labor practice.

Unlawful to execute closed-shop agreement with union while representation question pending.—In a case in which the employer had entered into a closed-shop agreement with one union after the Board had determined that a representation question existed, the Board held 12 that such conduct constituted unlawful interference on the part of the employer. The employer contended that the contract in question had been executed under duress in that the contracting union had threatened penalties against him. The Board rejected this argument, however, stating that the National Labor Relations Act "permits no immunity because of undue hardship or economic pressure imposed on the employer; a contrary principle would nullify the right of the employees to bargain through representatives of their own choosing." "Premature extension" doctrine.-Two recent decisions of the National Labor Relations Board have placed important qualifications on the "premature extension" doctrine.13 The Board, under this

"National Labor Relations Board v. Montgomery Ward (C. C. A. 8, Oct. 23, 1946).

In re G. W. Hume Co. (71 NLRB No. 81, Nov. 1, 1946).

"This doctrine was established in the case of In re Wichita Union Stockyards Co. (40 NLRB No. 369, Apr. 9, 1942).

doctrine, has held that when an employer executes a new contract with a union before the operative date of an automatic renewal clause in the old contract, and a rival union notifies the employer of a claim to representation after the execution of the new contract but before the "Mill B" date of the old contract, the new contract does not bar a new determination of representatives.

**

In the first of these cases 15 it was decided that the "premature extension" doctrine does not operate to preclude a new contract from barring a claim to representation by a rival union if that new contract was executed between the "Mill B" date and the expiration date of the old contract, and the claim to representation was received after the execution of the new contract. "On these facts," said the Board, "were we to find the new contract not to be a bar we would discourage timely negotiations for continuing stable relations." It is important to note that in its opinion the Board pointed out that it was not holding that the new contract would have been a bar to an election if the rival union had notified the employer of its claim to representation before the execution of the new contract, even though such notice came after the "Mill B" date.

The second case 16 presented the further complication of a new contract executed with the existing union between the "Mill B" date and the expiration date of the old contract, which contract by its terms was not to become effective until the expiration date of the old contract. A majority of the Board (overruling previous decisions on this point) held that the execution date and not the effective date controls contract-bar questions.. It then applied the reasoning of the Northwestern Publishing Co. case and concluded that a claim to representation received by the employer after the new contract was executed but before it was effective was barred by this new contract.

Decisions of State Courts

17

Wisconsin: Walk-outs to attend union meetings.-A Wisconsin circuit court recently held that a walk-out of employees during working hours for the purpose of holding a union meeting, followed by the return of the employees to work on the next day, constitutes a strike within the meaning of the Wisconsin Employment Peace Act. That statute provides, 18 among other things, that it is an un

14 The operative date of an automatic renewal clause is the date, prior to expiration of a contract, by which any application of either party to terminate the contract must be made. This has come to be known as the "Mill B" date. (See In re Mill B, Inc., 40 NLRB No. 346, Apr. 9, 1942.)

18 In re Northwestern Publishing Co. (71 NLRB No. 20, Sept. 30, 1946).

16 In re Mississippi Lime Co., of Missouri (71 NLRB No. 71, Oct. 30, 1946).

17 United Automobile Workers v. Wisconsin Employment Relations Board (Wis. Cir. Ct., Milwaukee County, Oct. 18, 1946.)

18 Wisconsin Statutes (Ch. III, sec. 111.06 2(h)).

lawful labor practice for an employee individually or in concert with others "to take possession of property of an employer or to engage in any concerted effort to interfere with production except by leaving the premises in an orderly manner for the purpose of going on strike." In this case the union, seeking to apply pressure on the company to accede to its demands for an increase in wages, called special meetings during working hours which were attended by practically all of the production and maintenance workers. In each case the employees returned to work the next day. It was contended by the employer that this activity did not constitute a strike and hence was not a lawful interference with production because it lacked an element essential to a strike; namely, a continuation of the cessation of work until the object of the work stoppage had been achieved. After a review of the existing authorities, few of which have dealt squarely with the question of intermittent work stoppages, the court ruled that reason and public policy militate in favor of including such stoppages within the framework of the strike.

Alabama: Requirement of sufficient notice before calling strike.-In a case in which the facts indicated that a strike had been called and pickets established before the employer had had sufficient time to consider the contract submitted to him by the union, an Alabama circuit court issued an injunction against the strike and picketing."

New York: Refusal to handle nonunion goods.-A lower court in New York refused to issue an injunction in a case in which union employees of soft drink manufacturers refused to load the trucks of nonunion peddlers who bought from the manufacturers, and threatened to refuse to work for manufacturers who continued to deal with nonunion peddlers. The plaintiffs petitioning for the injunction argued that this activity was not protected by the State anti-injunction statute because no "labor dispute" existed, in the light of the fact that the peddlers were "one man businesses" without employees.20 The court held,21 however, that even if this were true, there was nothing unlawful about the defendant's conduct, and hence no basis for the injunction even in the absence of the anti-injunction statute.

"Greenwood v. Hotel Employees Alliance (Alabama Cir. Ct., Sept. 27, 1946).

*For a case illustrating this point see Monthly Labor Review, November 1946 (p. 772).

Singer v. Kirsch Beverages Inc. (N. Y. S. C. App. Div., Oct. 21, 1946.)

Store Samples for Retail Food Prices 1

1

TO MAINTAIN the accuracy of its retail food prices, the Bureau of Labor Statistics completed another of its regular sample revisions in June 1946 and introduced some adjustments in the methods of combining the prices into averages and index numbers. The Bureau has frequently appraised its procedures and samples of stores since the collection of retail prices of food was begun in 1903, with the object of improving the quality of the data and increasing their usefulness. At present, the Bureau collects retail food prices from independent and chain retailers in each of 56 large cities during the first 4 days of the week containing the 15th of each month. All prices are reported voluntarily to local representatives of the Bureau who make personal visits to each food store at each pricing period.2

Samples of Food Stores

In past years, the sample of independent stores was roughly proportional to the total number of independent stores in each city, but the ratios between the number of stores in the sample and the total number of stores in the city were not the same for all cities. The stores were selected in each city in every neighborhood where wage earners and lower-salaried workers live. Between periods of sample revision, general or local, the number of stores was held constant by an immediate replacement of any store dropped from the sample.

The revision of the sample which was undertaken in September 1945 and completed in June 1946, employed a constant relationship between the total number of independent stores in the sample and the total number in the city. It included also objective methods of determining the distribution of the sample stores (1) by type of store, in terms of kinds of food sold, (2) by size of store, in terms of annual sales volume, and (3) by location within the city.

No change was made in the procedure for the selection of chain stores. It has always been the policy to obtain prices from all important chains operating in each city.

1 Prepared by Joseph W. Lethco and John S. Middaugh of the Bureau's Consumers Prices Division under the direction of 1 thel D. Hoover, Chief.

There are a few exceptions to this practice in the case of chain organizations which report through national, district, or local headquarters.