NATIONAL LABOR RELATIONS BOARD

IX. LITIGATION 231
order of the Board finding that an employer had violated section
8 (05) by refusing, during a strike not caused by an unfair labor
practice, to bargain with the union representing a majority of his
employees. After setting out the definitions of "employee" and
"labor dispute" contained in section 2 (3) and (9) of the act, the
Court stated :
Here there was clearly a current labor dispute within the above definition
and the striking employees were persons whose work had ceased because of it.
It is an unfair labor practice within the meaning of the act for an employer to
refuse to bargain collectively with representatives of his employees. Section
8 (5), 29 U. S. C. A. § 158 (5). The Board is empowered to prevent any person
from engaging in an unfair labor practice affecting commerce as defined in the
act; and it is required to take jurisdiction of a labor dispute when it is
charged that any person has engaged in an unfair practice within its meaning.
Section 10 (a), (b), 29 U. S. C. A. § 160 (a), (b)..5
In determining whether an employer has been guilty of an unfair
labor practice in refusing to bargain with the union representing his
striking employees, the fact that the labor dispute commenced before
the effective date of the act is of no importance so long as it was
current at the time of the refusal to bargain. In both the Jeff cry
DeWitt case and in National Labor Relations Board v. Carlisle
Lumber Company, 94 F. (2d) 138 (C. C. A. 9th), cert. denied 58 S. Ct.
1045, the Court sustained findings of the Board that the company had
engaged in an unfair labor practice in refusing to bargain, subsequent.
to the effective date of the act, with the union representing a majority
of their employees even though such employees had gone on strike
before such date. 26 Explaining that the Board's finding did not
amount to a retroactive application of the act, the Court, in the
Jeffery DeWitt case, said :
It is argued, however, that the act, which was not passed until July 5, must
be given a prospective operation and not be applied to disputes which had their
origin prior to its passage. It is a sufficient answer to this that the dispute was
current at the time of the passage of the act and that, under the principles of
law theretofore recognized, the relationship between the company and its striking
employees had not been so completely terminated as to have no further connection
with the company's business or the commerce in which it was engaged.
* * * So long as there was an existing relationship between the company
and its striking employees affecting commerce as defined in the act, this relationship
was subject to the regulatory power of Congress; and the act is given a
prospective operation when applied to subsequent unfair labor practices affecting
such relationship, notwithstanding they may have occurred in the course of a
labor dispute which had its origin before the act was passed. Cf. George v.
City of Asheville (C. C. A. 4th) 80 F. (2d) 50, 55, 103 A. L. R. 5684u
* See also Black Diamond Steamship Corp. v. National Labor Relations Board, 94 F.
(2d) 875 (C. C. A. 2d), cert. denied 304 U. S. 579. and National Labor Relations Board
v. Carlisle Lumber Company, 94 F. (28) 138 (C. C. A. 9th), cert. denied 304 U. S. 575.
In the Jeffery DeWitt case, the Court rejected the company's contention that, once an
impasse in negotiations had been reached, the company was under no further duty to
bargain. Compare, however, National Labor Relations Board V. Sands Mfg. Co., 96 F.
(2d) 721 (C. C. A. 6th), in which the Court, after finding that the union had violated its
contract, held that such violation created an impasse which relieved the employer of his
obligations under the act. The Board believes this decision to be at variance with the
intent of Congress enunciated in section 8 (5). The Board's application for certiorari
was granted by the Supreme Court on October 10, 1938.
" In National Labor Relations Board v. Kentucky Firebrick Company, 99 F. (2d) 39
(C. C. A. 6th), the Court sustained the findings of the Board that the company had violated
section 8 (1) and (3) by refusing to reinstate the leaders of a strike which had begun before
the effective date of the act.
" A unique qualification of this principle was enunciated by the Circuit Court of Appeals
for the Seventh Circuit in National Labor Relations Board v. Columbian Enameling
(6 Stamping Co., 96 F. (2d) 948. In this case, the Court held that where prior to the passage
of the act, the strike had been called in violation of contract, the striking workmen
did not retain the status of employees, irrespective of whether the labor dispute was current
on Jul" 5. 1935. In view of the clear definition of "labor dispute" contained in sec-