NATIONAL LABOR RELATIONS BOARD

IX. LITIGATION 229
notable is that of hi, re National Labor Relations Board, 58 S. Ct. 1001,
decided May 31, 1938. In this case the Republic Steel Corporation
had filed, on April 18, 1938, a petition to review an order of the Board
in the Circuit Court of Appeals for the Third Circuit, but had not
filed a transcript of the record upon which the Board's order was
based, a prerequisite to the completion of the Court's jurisdiction.21
The Board, having advised the Court that it was considering vacating
its order so that it might have further proceedings, a rule was
issued by the Court directing the Board to show cause why the transcript
should not be filed. The Board answered the rule, stating in
substance that it had decided to vacate its order to take further proceedings
and that accordingly the Court was without jurisdiction of
the cause. On May 13, 1938, the Court enjoined the Board from
further action until the transcript was filed. This action of the Court
prevented the Board from taking the further proceeding which the
statute authorized it to do prior to filing of the transcript of the
record with the Court. The Board, therefore, petitioned the Supreme
Court for a writ of mandamus directing the judges of the Circuit
Court of Appeals for the Third Circuit to vacate the injunction of
May 13 and for a writ of prohibition against the exercise of jurisdiction
by the Circuit Court. The case was heard on a rule to show
cause. The Supreme Court held that the writs prayed for were appropriate
remedies and that the Circuit Court of Appeals for the Third
Circuit was without jurisdiction to enter its order of May 13 (58 S. Ct.
1001).
D. PRINCIPLES ESTABLISHED
With the constitutionality of the act determined and the Board's
jurisdiction to prevent unfair labor practices affecting interstate and
foreign commerce established, proceedings in the courts for the enforcement
and review of Board orders during the present fiscal year
have been largely concerned with the correctness of the Board's findings
of fact in particular cases and the propriety of the remedies
adopted by the Board to prevent unfair labor practices and to remedy
conditions caused by them. In the determination of these questions,
important principles of law concerning the act have been enunciated
by the courts in their review, as authorized by the statute, of the
decisions and orders of the Board. In this chapter, we will attempt
to set forth the more important of the principles which have been
judicially established.22
WORKERS ON STRIKE RETAIN STATUS OF EMPLOYEES AND ARE ENTITLED
TO THE PROTECTION OF Tizte. ACT IRRESPECTIVE OF WHETHER THE STRIKE
WAS CAUSED BY AN UNFAIR LABOR PRACTICE
Section 2 (3) of the act provides that the term "employee" shall
include "any individual whose work has ceased as a consequence of,
or in connection with, any current labor dispute or because of any
unfair labor practice, and who has not obtained any other regular
"Section 10 (d) of the Act provides that "Until a transcript of a record in a case shall
have been filed in a Court • * • the Board may at any time, upon reasonable notice
and in such manner as it shall deem proper, modify or set aside, in whole or in part,
any finding or order issued by it.
" The principles established by the Board in its decisions have been considered in
Chapter VII, above.