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related controls, free collective bargaining has emerged as the primary means of resolving industrial controversies, and that the Government's basic role is now limited to one of voluntary mediation through the Conciliation Service. The Committee therefore recommended the further development of four major techniques for this type of mediation in special kinds of dispute cases, to supplement the regular activities of the Service.
(1) Special conciliators.-The establishment of a panel of men nationally known for their work in labor relations was recommended, the members to be used as special conciliators in major industrial disputes.
(2) Tripartite mediation.-Indicating that in certain types of disputes the utilization of industry and labor representatives, to serve in an advisory capacity with the Federal conciliator, might be helpful, the Committee suggested the establishment of panels of such representatives by the Service.
(3) Voluntary arbitration. With regard to controversies arising over the interpretation or application of the terms of a collective agreement, it was recommended that if industrial relations were likely to be improved thereby, provision be inserted in the contract for the use of voluntary arbitration as a final step in disposing of those grievance issues which are arbitrable under the agreement.
After all mediation processes have been exhausted, voluntary arbitration, also, may be recommended by the Conciliation Service as useful in disputes involving basic contract terms, although the Committee held that new issues should be determined at the bargaining table.
(4) Emergency boards of inquiry,' to be appointed outside of the Federal Government, are recommended for disputes of national importance only after all normal mediation efforts have failed, and by consent of the disputants. Their essential functions are to conduct hearings on the issues involved and to publish findings based on the evidence submitted at such times.
No single one of the above steps was expected to be a cure-all, but each procedure, in its proper place, was recommended as useful in assisting representatives of labor and management to arrive at a voluntary settlement of their problems.
Established on recommendation of the President's National LaborManagement Conference on industrial relations,3 in January 1946, the Labor-Management Advisory Committee of the U. S. Conciliation
2 Compare article on Value of Fact-Finding Procedure, Monthly Labor Review, November 1946 (p. 774), 3 For details of this conference and recommendations in regard to the U. S. Conciliation Service, see The President's National Labor-Management Conference, November 5-30, 1945, Summary and Conference Reports, U. S. Division of Labor Standards, Washington, 1946 (Bulletin No. 77).
Service affirmed its unanimous belief in the work ability of free collective bargaining. Any form of compulsory arbitration or "supermachinery" for the disposition of labor disputes, in its opinion, might defeat rather than promote industrial peace.
The Advisory Committee consists of eight members, divided equally between labor and management, with two each appointed by the Secretary of Labor on recommendation of the American Federation of Labor, the Congress of Industrial Organizations, The National Association of Manufacturers, and the United States Chamber of Commerce, respectively.
Labor Laws and Decisions
Recent Decisions of Interest to Labor 1
Fair Labor Standards Act
Split-day plan.-Another of the so-called split-day methods of computing wage payments has been held to violate the Fair Labor Standards Act. Under the plan in question the regular 8-hour day was divided into two parts, of which 6.6 hours were called "regular" time and 1.4 hours were called "overtime," and the rate paid for the latter was 150 percent of that paid for the former. The court pointed out that "the vice in all these split-day plans is that their so-called 'regular' rate is not based on payments regularly made each week for the normal workweek and, consequently, their 'overtime' rate is not compensation for true overtime, that is, hours worked in excess of the normal workweek or workday." It held that the Fair Labor Standards Act requires that the regular rate be determined on the basis of the normal working day (which in this case was 8 hours); that the rate so determined must be applied to the first 40 hours worked; and that for all hours worked in addition, a rate of one and one-half times the regular rate must be paid.
The court rejected the defendant's contention that the plan was valid because it had been adopted pursuant to the demands of the employees, on the basis of the well-established principle that that which is illegal cannot be made legal by contract of the parties.
Applicability of act to volunteer worker. The broad terms of the Fair Labor Standards Act, which defines "employ" as "suffer or permit to work," has been held to cover a volunteer rendering services for an employer with the intention that the services should not be compensated for, in a rather unusual recent case. The plaintiff had entered the employ of the defendant at a time when the latter was hard pressed for workers. No arrangements for compensation were
1 Prepared in the Office of the Solicitor, U. S. Department of Labor. 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 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.
Robertson v. Alaska Juneau Gold Mining Co. (C. C. A. 9, Nov. 5, 1946).
Rogers v. Schenkel (U. 8. D. C. W. D. N. Y., Oct. 23, 1946).
made, and on several occasions the plaintiff had stated that his services were voluntary, and that he would not accept any wages in any form. The court held, however, that he had been "suffered or permitted to work" and was therefore entitled to the statutory wages.
Railway Labor Act
Obligation of union to represent entire class.-Following the decision of the United States Supreme Court in Steele v. Louisville and Nashville Railroad Co., a Federal district court held that a collectivebargaining agreement executed between a railroad and a union authorized under the Railway Labor Act as exclusive bargaining agent for all the firemen on the railroad, which discriminated against certain firemen on the basis of race alone, was unlawful. The contract in question divided firemen into two classes designated as "promotable" and "nonpromotable." The former included white firemen qualified for ultimate promotion to the position of engineer. The latter included all colored firemen regardless of individual qualification. Further provisions of the agreement granted priority in new jobs and the filling of vacancies to promotable firemen. The court refused to accept the union's contention that this system arose out of the railroad's rule against colored engineers, and that it therefore had no control over the situation. The court pointed out that no effort had been made by the union to urge the railroad to change this rule, indeed, all efforts had been directed at increasing its discriminatory effect. As such it was held that the union had not discharged its obligation to represent all the employees in the craft without discrimination because of their race, a duty which the Supreme Court in the Steele case clearly held to exist.
In another case involving the same defendant, but in a different court, a limitation was placed upon the doctrine which requires the union to represent the entire class of employees. In this case the plaintiff claimed that the union was obligated to represent him on a grievance which arose while he was a member in good standing of the union. Subsequent to the time the grievance arose, however, he had lost his status because of dissolution of his local and failure to pursue the proper course for transfer to another lodge. The court held that upon such facts he could not legally look to the brotherhood for representation in the handling of his grievance.
4323 U. S. 192 (1944).
Tunstall v. Brotherhood of Firemen (U. S. D. C. E. D. Va., Oct. 9, 1946).
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" situation.
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).