NATIONAL LABOR RELATIONS BOARD

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VI. LITIGATION 95 Lion. The Board's order directed against the subsidiary "and its officers, agents, successors, and assigns" was sustained over objection.98 In Bethlehem, Steel Co. v. N. L. R. B., the inclusion of "successors and assigns" was again expressly sustained as necessary to prevent nullification of the Board's order by reorganization or transfer.99 In several important decisions of the year, the courts have considered and rejected contentions which sought to limit employer responsibility by the application of unrealistic tests derived from common law rules of agency. The controlling rule was clearly laid down in International Association of Machinists v. N. L. R. B.: The employer, however, may be held to have assisted the formation of a union even though the acts of the so-called agents were not expressly authorized or might not be attributable to him on strict application of the rules of responcleat superior. We are dealing here not with private rights (Amalgamated Utility Workers v. Consolidated Edison Co., 300 U. S. 261) nor with technical concepts pertinent to an employer's legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an employer's compulsion, domination, or influence. The existence of that interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees' choice and for which the employer may fairly be said to be responsible. Thus where the employees would have just cause to believe that solicitors professedly for a labor organization were acting for and on behalf of the management, the Board would be justified in concluding that they did not have the complete and unhampered freedom of choice which the Act contemplates. Here there was ample evidence to support that inference. As we have said, Fouts, Shock, Dininger, and Bolander all had men working under them. To be sure, they were not high in the factory hierarchy and apparently did not have the power to hire or to fire. But they did exercise general authority over the employees and were in a strategic position to translate to their subordinates the policies and desires of the management.' It is now clear, as the Board has long maintained and as the effective enforcement of the Act plainly requires, that considerations of supervisory status, power to hire or fire and other tests derived from the traditional doctrine of respond,eat superior do not afford a decisive criterion. To the extent that an employer "may seek or be in a position to secure any advantage" from acts prejudicial to freedom of self-organization, they may be restrained whether or not they were authorized or directed by him ORDERS The Board's litigation during the fiscal year has shown a marked increase of emphasis on questions concerning the scope of the Board's remedial powers. While the Board's position has not been uniformly sustained, the broad discretionary power which the Board may exercise as an expert administrative tribunal has been strikingly stated in a number of important cases. "Ideas, at 933, 941-942. 04 120 F. (2d) 641, 650-651 (C. A.-D. C.). In N. L. R. B. v. Timpken Silent Automatics Go., 114 F. (2d) 449 (C. C. A. 2) enforcement proceedings against a parent corporation continuing the business of its dissolved wholly-owned subsidiary were dismissed, although dismissal as against the subsidiary was denied. It should be noted that this decision does not involve the validity or effect of the "successors and assigns" clause and does not pass upon whether the parent would be answerable in contempt proceedings for violation of the order against the subsidiary. See dissenting opinion, at 451. It may also be observed that the decision is rested upon the principle or N. L. R. B. v. National Casket Co., 107 F. (2d) 992 (C. C. A. 2) and Phelps Dodge Corp. v. N. L. R. B., 113 F. (2d) 202 (C. C. A. 2), subsequently overruled in Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177. 311 U. S. 72, 80. Accord : N. L. R. B. v. Link-Belt, 311 U. S. 584, 599. 1 H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514, 520; Atlas Underwear Co. v. N. L. R. B., 116 F. (2d) 1020, 1023, (C. C. A. 6).
96 SIXTH ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARD Cease and desist orders.—The Act expressly provides for cease and desist orders with respect to unfair labor practices found. 3 In a few instances however, Circuit Courts of Appeals have failed or declined to enforce such orders although they have sustained the findings on which they were based. 4 In N. L. R. B. v. Express Publishing Co. ' the Supreme Court squarely ruled that upon a finding of refusal to bargain an order requiring respondent to cease and desist from refusing to bargain "was in exact compliance with the statute and should have been left undisturbed." 5 At the same time, the Court directed that an order in the language of section 8 (1) of the Act be more narrowly phrased. The Board's view has beeia that an order limited to the particular violation committed does not afford adequate protection against subtle evasions, and that a broad order in the language of section 8 (1) was therefore necessary, to be construed, of course, in the light of the illegal conduct found by the Board to have occurred.° The Supreme Court took the view that an order broader than the specific violation found would be appropriate but required that it be somewhat more limited in scope than the provisions of section 8 (1) of the Act. 7 At the same time, the Court made it clear that the broad order would be appropriate when "the record disclosed persistent attempts by varying methods" to infringe upon the right of employees under the Act!' The Court also took occasion to declare that the orders of the Board are to be broadly construed so as to strike down subtle evasions "by indirections or formal observances." 9 Disestablish,ment.—The Board's discretionary power to require disestablishment of company dominated unions was established by the decision of the Supreme Court in the Greyhound cases. 1° Persistent efforts have been made by employers, however, to urge that something less than complete disestablishment is all that may be required.11 It is to be hoped that the question has been set at rest by H. J. Heinz Co. v. N. L. B. B.12 Reinstatement orders and bade pay orders.—In Phelps Dodge Corp. v. N. L. R. B.,13 the Court resolved the much controverted question of whether a discriminatory refusal to hire violates the Act. Holding such refusal to be an unfair labor practice under section 8 (3), the Act, sec. 10 (c); N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261, 265; Amalgamated Utility Workers v. Consolidated Edison Co., 309 U. S. 261, at 265. 4 Globe Cotton Mills v. N. L. R. B., 103 F. (2d) 91 (C. C. A. 5) ; N. L. R. B. v. Express Publishing Co., 111 F. (2d) 588 (C. C. A. 5), reversed, 312 U. S. 426; Virginia Electric and Power Co. v. N. L. R. B., 115 F. (2d) 414 (C. C. A. 4), certiorari granted, 312 a S. 677; N. L. R. B. v. Automotive Maintenance Machinery Co., 116 F. (2d) 350 (C. C. A. 7). 5 N. L. H. B. v. Express Publishing Co., 312 U. S. 426, 432; cf. N. L. R. B. v. Bradford Dyeing Ass'n., 810 U. S. 318, 323-324. 'See, for exam ple, SuPPlem'ental Memorandum, submitted by the Board in Nos. 3482 and 3528, N. L. R. B. v. Somerset Shoe Co., 111 F. (2d) 681 and N. L. R. B. V. Waumbec Mills, Inc., 114 F. (2d) 226 (C. C. A. 1) ; Memorandum, submitted by the Board in N. L. R. B. v. Fwayn c Hoyt, Ltd., decided December 8, 1939 (C. C. A. 9) ; Petition for Rehearing in Press Co., Inc. v. N. L. R. B., 118 F. (2d) 937, 954. 7 In addition to the order prohibited "refusing to bargain," the Court approved an Order prohibiting "in any manner interfering with the efforts of the Guild to bargain." N. L. R. B. v. Express Publishing Co., 312 U. S. 426, 439. While the full scope of the order so phrased remains to be tested and is giving rise to much litigation, it appears probable that it will prove to have substantially the same effect as the wider form of order construed in accordance with traditional practice in contempt cases. N. L. R. B. v. Express Publishing Co., 312 U. S. 426, 437-438. 9 'dem, at 437. "N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U. S. 261; N. L. R. B. v. Pacific Greyhound Lines, 303 U. S. 272. n See Fourth Annual Report. pp. 129-130; Fifth Annual Report. po. 104-105. 311 U. S. 514, 521-523; cf. N. L. R. B. v. Link-Belt Co., 311 U. S. 584, 600. 15 313 U. S. 177.
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SIXTH ANNUAL REPORT OF THE NATIONAL
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NATIONAL LABOR RELATIONS BOARD WILL
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TABLE OF CONTENTS Chapter Page I. A
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SIXTH ANNUAL REPORT OF THE NATIONAL
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I. A SUMMARY 3 In dealing with disp
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I. A SUMMARY 5 report is used as a
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ClIAPTE11 It THE NATIONAL LABOR REL
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II. THE NATIONAL LABOR RELATIONS ;
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III. STATISTICAL RECORD OF BOARD AC
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Ill. ,STATISTICAL RECORD OF BOARD A
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Metal mining Coal mining Crude petr
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TABLE 1 1.-Number of cases and numb
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Cases closed otherwise Cases closed
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Cases closed by compliance with int
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By consent election By pay-roll che
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TABLE 19.-Number of elections and p
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C. I. 0. alone I A. F. L:C. I. 0 2
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IV. PRINCIPLES ESTABLISHED 41 in wh
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IV. PRINCIPLES 'ESTABLISHED 43 of o
Page 52 and 53: IV. PRINCIPLES ESTABLISIEIED 45 B.
Page 54 and 55: IV. PRINCIPLES ESTABLISHED 47 Whene
Page 56 and 57: 1V.. PRINCIPLES ESTABLISHED 49 of t
Page 58 and 59: IV. PRINCIPLES ESTABLISHED 51 agree
Page 60 and 61: IV. PRINCIPLES ESTAISLISUEL-ED 53 A
Page 62 and 63: IV. PRINCIPLES 'ESTABLISHED 55 I. I
Page 64 and 65: IV. PRINCIPLES ESTABLIS'HED 57 dict
Page 66 and 67: IV. PRE\rCIPLES ESTABLISHED 59 the
Page 68 and 69: IV. PRINCIPLES 'ESTABLISHED 61 vote
Page 70 and 71: IV. PRINCIPLES ESTABLISHED 63 G. TH
Page 72 and 73: IV. PRINCIPLES ESTABLISHED 65 ees a
Page 74 and 75: ni. PRINCIPLES ESTABLISHED 67 4. MU
Page 76 and 77: IV. PRINCIPLES ESTABLISHED 69 pursu
Page 78 and 79: IV. PRINCIPLES ESTABLISHED 71 not b
Page 80 and 81: IV. PRINCIPLES ESTABLISHED 73 ORDER
Page 82 and 83: IV. PRINCIPLES VSTABLISHED 75 the r
Page 84 and 85: I V. PRINCIPLES ESTABLISHED 77 more
Page 86 and 87: IV. PRINCIPLES ESTABLISHED 79 emplo
Page 88 and 89: V. JURISDICTION 81 and outgoing int
Page 90 and 91: CHAPTER VI LITIGATION A decided inc
Page 92 and 93: VI. LITIGATION 85 parties constitut
Page 94 and 95: • VI. LITIGATION 87 B. PRINCIPLES
Page 96 and 97: VI. LITIGATION 89 Antiunion stateme
Page 98 and 99: VI. LITIGATION 91 when none is in e
Page 100 and 101: VI. LITIGATION 93 flict of opinion
Page 104 and 105: VI. LITIGATION 97 Court ruled that
Page 106 and 107: VI. LITIGATION 99 rial ; 32 to refu
Page 108 and 109: VI. LITIGATION 101 Other procedural
Page 110 and 111: VI. LITIGATION 103 D. SPECIAL LITIG
Page 112 and 113: VI. LITIGATION 105 B. APPLICATION O
Page 114 and 115: APPENDIX A REGIONAL OFFICES—LOCAT
Page 116 and 117: APPENDIX A Region 11, Architects In
Page 118 and 119: APPENDIX B CASES HEARD DURING THE F
Page 120 and 121: APPENDIX B 113 Jackson Cookie Co.,
Page 122 and 123: APPENDIX B 115 Western Printing Co.
Page 124 and 125: APPENDIX B 117 Chrysler Corporation
Page 126 and 127: APPENDIX B 119 Hardy Mfg. Co., owne
Page 128 and 129: APPENDIX B 121 Missouri Rolling Mil
Page 130 and 131: APPENDIX B 123 Selznick Internation
Page 132 and 133: APPENDIX B 125 Westinghouse Electri
Page 134 and 135: APPENDIX C 127 Vol. No. Fletcher Pa
Page 136 and 137: APPENDIX C 129 Vol. No. Texarkana B
Page 138 and 139: APPENDIX C 131 Vol. No. Sanderson,
Page 140 and 141: APPENDIX c 133 Vol. No. Cambridge I
Page 142 and 143: APPENDIX C 135 Vol. No. Gliden Buic
Page 144 and 145: APPENDIX C 137 Vol. No. Lowenstein
Page 146 and 147: APPENDIX C 139 Vol. No. Radio Wire
Page 148 and 149: APPENDIX C 141 Vol. No. Universal P
Page 150 and 151: APPENDIX C 143 Vol. No. General Mot
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APPENDIX D 145 Valley Mould CC Iron
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APPENDIX D 147 (b) Board orders enf
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APPENDIX D 149 Circe-Simplex Corp.,
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APPENDIX D 151 Seventh Circuit B. Z
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APPENDIX D 153 Pacific Grape Produc
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APPENDIX D 155 Eighth Circuit N. L.
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