# National Labor Relations Board v. National Casket Co.

> Court of Appeals for the Second Circuit · December 11, 1939 · 107 F.2d 992

URL: https://www.frixlaw.com/law-library/cases/9640428

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD v. NATIONAL CASKET CO., Inc.
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** December 11, 1939
- **Citations:** 107 F.2d 992; 5 L.R.R.M. (BNA) 718; 1939 U.S. App. LEXIS 2873
- **Precedential status:** Published
- **Opinion:** Dissent by Hand
- **Judges:** Hand, Swan
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9640428

## Opinion text

L. HAND, Circuit Judge,
(dissenting).
As I view this case we are not presented with the question whether it is an “unfair labor practice” to refuse, because of their union activities, to employ those who have *999 never been employees; that point I reserve. Nor need we say whether § 10(c), 29 U.S.C.A. § 160 (c), confines “reinstatement” to “employees”. We must, however, say whether it is an “unfair labor practice” merely to refuse to employ “employees” because of their union activities, and whether such a refusal entitles them to reinstatement. I do not doubt either; surely it tends to “discourage membership in any labor organization” to know that a record of union agitation will prevent one from getting back one’s old job. Hence, if these six men were “employees”, when the company rejected them, the Board was right. It is true that, if so, they were such only because of events which took place before the law was passed, but that seems to me irrelevant. At least it is plain that to hold them “employees” does not make the act operate retrospectively. The company was charged with notice, when it rejected any applications of those who had been active in forming the union, that it was unlawful to do so if they were its “employees”. Like every one else it took its chances of how courts might define that word. Therefore, the case comes down merely to how we should define it, and to me it seems that both in language and in purpose § 2(3), 29 U.S.C.A. § 152 (3), covers those who ceased work before the law became effective. I can see nothing in the language to justify a more limited construction. The relevant words are: “any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute”, § 2(3); and a “ ‘labor dispute’ includes any controversy * * concerning the * * * representation of persons in negotiating * * * terms * * * of employment”, § 2(9). These six men had in fact ceased work as a consequence of a controversy concerning the representation of persons in negotiating terms of employment. Possibly they had ceased work also in consequence of an “unfair labor practice”, but that is more debatable, and, arguendo, I will assume the opposite. So much for the text. If, on the other hand, we look to the purpose of §. 10 (c), the same result follows, for I can think of no reason why those who have lost their jobs before there was any law, should be denied the protection given to those who lose them afterwards. Their rejection after the law takes effect equally discriminates against them; the line between them and the others is purely adventitious and without basis in any state-able policy; and I cannot doubt what.Congress would have done, had the situation been presented to it. Thus, text and spirit unite; and at the same time the statute remains prospective in its operation. I think we should affirm the order, though I join in my brothers’ caveat as to that part of it which directs the company to pay any money to those agencies of relief which supported the men during their unemployment

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9640428. Public record. Not legal advice.