The fact that a bill has recently been introduced in Congress and approved by both its houses, requiring as a matter of national railway transportation policy the protection of employees such as the Commission has given here, does not militate against this conclusion. Doubts which the Commission at one time entertained but later resolved in favor of its authority to impose the conditions, were followed by the recommendation of the Committee of Six that fair and equitable arrangements for the protection of employees be "required." It was this recommendation which was embodied in the new legislation. Sen. Rep. No. 433, 76th Cong., 1st Sess., p. 29. We think the only effect of this action was to give legislative emphasis to a policy and a practice already recognized by § 5 (4) (b) by making the practice mandatory instead of discretionary, as it had been under the earlier act.

It is said that the statute, as we have construed it, is unconstitutional because not within the Congressional power to regulate interstate commerce and is a denial of due process. It is true that in Railroad Retirement Board v. Alton R. Co., 295 U. S. 330, in declaring the Railroad Retirement Act of June 27, 1934, 48 Stat. 1283, not to be a valid regulation of interstate commerce, it was said, among other reasons advanced to support that conclusion, that a compulsory retirement system for railroad employees can have no relation to the promotion of efficiency, economy or safety of railroad operation. But notwithstanding what was said there and even if we were doubtful whether the particular provisions made here for the protection of employees could have the effect which we have indicated upon railroad consolidation and upon the adequacy and efficiency of the railroad transportation system, we could not say that the Congressional judgment that those conditions have a relation to

the public interest as defined by the statute is without rational basis. Cf. South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177, 189, 191; United States v. Carolene Products Co., 304 U. S. 144, 147; Pitman v. Home Owners' Loan Corp., ante, p. 21. ~

If we are right in our conclusion that the statute is a permissible regulation of interstate commerce, the exercise of that power to foster, protect and control the commerce with proper regard for the welfare of those who are immediately concerned in it, as well as the public at large, is undoubted. Second Employers' Liability Cases, supra, 47; Dayton-Goose Creek Ry. Co. v. United States, 263 U. S. 456, 478; United States v. Carolene Products Co., supra, 147; Mulford v. Smith, 307 U. S. 38. Nor do we perceive any basis for saying that there is a denial of due process by a regulation otherwise permissible, which extends to the carrier a privilege relieving it of the costs of performance of its carrier duties, on condition that the savings be applied in part to compensate the loss to employees occasioned by the exercise of the privilege. That was decided in principle in Dayton-Goose Creek Ry. Co. v. United States, supra. There it was held that the Fifth Amendment does not forbid the compulsory application of income, attributable to a privilege enjoyed by a railroad as a result of Commission action, to specified purposes "in the furtherance of the public interest in railroad transportation." § 422(10), Transportation Act, 41 Stat. 490. Moreover we cannot say that this limited and special application of the principle, fully recognized in our cases sustaining workmen's compensation acts, that a business may be required to carry the burden of employee wastage incident to its operation, infringes due process. Second Employers' Liability Cases, supra; New York Central R. Co. v. White, 243 U. S. 188; Mountain Timber Co. v. Washington, 243 U. S. 219; Cudahy Packing Co. v. Parramore, 263 U. S. 418. · Reversed.

Syllabus

NATIONAL LABOR RELATIONS BOARD v. NEWPORT NEWS SHIPBUILDING & DRY DOCK CO.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.

No. 20. Argued November 6, 7, 1939-Decided December 4, 1939. 1. Upon review of an order of the National Labor Relations Board, the Circuit Court of Appeals may consider additional facts, occurring before the decision and order of the Board had been promulgated, which the Board in a supplemental certificate certified as part of the record. P. 248.

2. Upon review of an order of the National Labor Relations Board, the Circuit Court of Appeals may not consider facts contained in briefs filed in the proceeding in that court, but which are not a part of the record certified by the Board. Such facts may be added to the certified record only in the manner prescribed by § 10 (e) of the Act. P. 249.

3. A finding by the National Labor Relations Board that an employer had dominated, given financial and other assistance to, and interfered with the administration of a labor organization of its employees, held supported by substantial evidence. P. 250. 4. A provision in a plan for the governance of a labor organization, whereby the plan may not be amended without the approval of the employer, deprives the employees of the complete freedom of action guaranteed to them by the National Labor Relations Act. P. 249.

5. An order of the National Labor Relations Board requiring an employer to withdraw recognition from an organization of its employees and to disestablish it-based upon the Board's finding, supported by evidence, that the employer had for years dominated and interfered with the organization, and the Board's conclusion, warranted by the record, that because of that history the organization was incapable of serving the employees as their genuine representative for the purpose of collective bargaining-sustained. P. 251.

Upon the record in this case, the Board was authorized to order the disestablishment of the labor organization, notwithstanding the facts that the organization had operated to the apparent satisfaction of the employees; that no serious labor disputes had

Opinion of the Court.

308 U.S.

occurred during its existence; and that in a referendum the employees had signified their desire for its continuance.

101 F. 2d 841, reversed.

CERTIORARI, 307 U. S. 617, to review a decree modifying and directing the enforcement, as modified, of an order of the National Labor Relations Board.

Mr. Charles Fahy, with whom Solicitor General Jackson and Messrs. Charles A. Horsky, Robert B. Watts, Laurence A. Knapp, Mortimer B. Wolf, and A. Norman Somers were on the brief, for petitioner.

Mr. H. H. Rumble, with whom Messrs. Fred H. Skinner and John Marshall were on the brief, for respondent.

Mr. Frank A. Kearney, with whom Mr. Percy Carmel was on the brief, for the Employees' Representative Committee, intervener, urging affirmance.

MR. JUSTICE ROBERTS delivered the opinion of the Court.

In a case duly instituted and heard, the National Labor Relations Board issued an order,' pursuant to the provisions of § 10 (c)2 of the National Labor Relations Act, requiring the respondent, Newport News Shipbuilding & Dry Dock Company: (1) to cease and desist from (a) dominating or otherwise interfering with the administration of the Employees' Representative Committee, a labor organization, or the formation or administration of any other labor organization of its employes; (b) from '8 N. L. R. B. 866.

3

2 49 Stat. 449, 454; 29 U. S. C. Supp. IV, § 160 (c).

The Committee was granted leave to intervene, produced evidence, and participated in the argument before the Board, and was heard in the court below and in this Court.

241

Opinion of the Court.

interfering with, restraining, or coercing its employes in the exercise of the right guaranteed them by § 7 of the Act. The order further required the company (2) to take affirmative action, namely: (a) to withdraw all recognition from the Committee as the representative of any of its employes for the purpose of dealing with the company concerning labor conditions and wages, and completely to disestablish the Committee as such representative; (b) to post copies of the order throughout the plant; (c) to maintain said notices for thirty days; and (d) to notify the Board's Regional Director of the steps taken to comply with the order.

The order was based upon findings that the respor dent had dominated and interfered with the formation and administration of the Committee, had contributed to it financial and other support, and was still dominating and interfering with the Committee, contrary to § 8 (1) and (2) of the Act.

The Company petitioned the Circuit Court of Appeals for review. The Board answered praying that the court dismiss the company's petition and decree enforcement. The court held that the Board had jurisdiction of the cause, but that its holding that the company had dominated and interfered with the formation and administration of the Committee was without support in the evidence. The court decreed that § 1(a) and (b) and § 2 (b) (c) and (d) of the Board's order should be enforced but that § 2 (a), which required the withdrawal of recognition of the Committee and its disestablishment as a representative of the employes, should be stricken from

49 Stat. 449, 452; 29 U. S. C. Supp. IV, § 157.

*49 Stat. 449, 452; 29 U. S. C. Supp. IV, § 158.

The complaint also charged that the respondent had discharged certain employes for union activity and had thus violated § 8 (3) of the Act but the Board dismissed this charge.