# National Labor Relations Board v. Carlisle Lumber Co. > Court of Appeals for the Ninth Circuit · December 13, 1937 · 94 F.2d 138 URL: https://www.frixlaw.com/law-library/cases/9642919 ## Case - **Full name:** National Labor Relations Board v. Carlisle Lumber Co. - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** December 13, 1937 - **Citations:** 94 F.2d 138; 1937 U.S. App. LEXIS 4117 - **Precedential status:** Published - **Opinion:** Concurrence by Stephens - **Judges:** Haney, Wilbur, Pianey, Stephens - **Cited by:** 28 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/9642919 ## Opinion text STEPHENS, Circuit Judge (concurring). It has been very earnestly and ably argued by counsel for respondent that the Board is attempting to apply the Wagner Act, 29 U.S.C.A. § 151 et seq., retroactively when it classes discharged workmen as employees under the act. In my judgment the main opinion properly decides this question against respondent’s contention. Every act complained of happened after the statute went into effect, and every phase of the Board’s order is premised upon such. And, surely, there was ample evidence before the Board to sustain its findings that the strike was current when these acts were performed. The gist of respondent’s argument is that workmen who were on strike and had been discharged because of striking, prior to the effective date of the Wagner Act, were strangers to respondent, and that there was no warrant in law for considering them at all in the controversy; that to-do so was applying the act retroactively. But long before the passage of this act the contest for advantage between capital and labor demonstrated that employees on strike were not strangers to employers. The courts became cognizant of changes in our industrial system and have in numerous cases noted it. Courts began to hold that it was no longer true that the only right the dissatisfied workmen had, in any combination of circumstances, was to quit the service. Imagine the wreckage that would ensue if all of the employees of a great manufacturing industry were to doff their aprons over some requirement not to their liking, and start out independently to look for other jobs. Commerce in such an industry would be out of balance and whole cities of - families would be on the move scattering hither and thither, seeking work in the industry with which *148 they. were familiar. The holding in the Jeffery 1 opinion that “striking employees” is a name that denotes a status is only the latest judicial recognition of a commonly known fact And this fact existed long prior to the Congress’s declaration in the Wagner Act defining employees. If this status can be completely negatived by the simple method of discharging the men and hiring them over again on the employers’ terms through the workers’ necessities, then the efforts of the courts to move abreast of economic changes in this particular has failed. Here this court is asked to do this very thing. Chief Justice Hughes uses apt language in the Jones & Laughlin Case, 301 U.S. 1 , 57 S.Ct. 615, 626 , 81 L.Ed. 893 , 108 A.L.R. 1352 , though applying it to a different set of facts, when he says: “We are asked to shut our eyes to the plainest facts of our national life and to deal with the question of direct and indirect effects is an intellectual vacuum.” Under this doctrine, there never would have been a common law to guide the courts. The true common law, in its last analysis, is not something that grew to maturity jn England and turned to an indestructible, unchanging thing, by whose tenets we are forever bound unless specifically relieved therefrom by statute, but is something that grows and changes to fit the customs and habits of every generation of people. This is not a novel idea, but has been the subject of much judicial comment. The subject is exhaustively treated in Hurtado v. California, 1884, 110 U.S. 516, 530 , 4 S.Ct. 111, 292 , 28 L.Ed. 232 , and in Katz v. Walkinshaw, 1903, 141 Cal. 116, 123 , 70 P. 663 , 74 P. 766 , 64 L.R.A. 236 , 99 Am.St.Rep. 35 . Judge Garrecht, in his dissenting opinion in National Labor Relations Board v. Mackay Radio & Telegraph Company, 9 Cir., 1937, 92 F.2d 761, 767 , admirably treats a similar situation from the standpoint of the status of the striking employees as follows: “Because employment is a matter of contract, it is said, to compel the hiring of a man who has ceased work for reasons other than an unfair labor practice is to compel the making of a new contract “The argument overlooks the fact that the relationship of employer and employee, while initiated by contract, is a status the incidents of which may be altered by the Legislature under its police power. In the field of interstate commerce it is the Congress which exercises this police power. “Examples of relationships originating in contract whose incidents are subject to legislative alteration are numerous. “The status of seaman and vessel, resting in and originated by contract, may be modified by Congress to the extent (to cite one example among many) of prohibiting the payment of wages in advance. Patterson v. The Eudora, 190 U.S. 169, 175 , 23 S.Ct. 821 , 47 L.Ed. 1002 . The status initiated by the contract of employer and employee in an industry subject to state regulation may be altered by abolishing the employee’s right to sue for injuries and substituting therefor a system of workmen’s compensation. New York Central R. Co. v. White, 243 U.S. 188, 206 , 37 S.Ct. 247 , 61 L.Ed. 667 , L.R.A.1917D, 1, Ann. Cas.1917D, 629; Chicago, B. & Q. R. Co. v. McGuire, 219 U.S. 549, 571 , 31 S.Ct. 259 , 55 L.Ed. 328 . Likewise, in an interstate commerce industry, Congress may alter the status of the employment relationship by abrogating certain of the common-law defenses of an employer against suit for damages brought by an employee. Mondou v. N. Y., etc., R. Co., 223 U.S. 1 , 32 S.Ct. 169 , 56 L.Ed. 327 , 38 L.R.A.(N.S.) 44. Congress has written this change in statute law, and, since this law has withstood the constitutional test, it follows that the change as to the status of employees on strike as pronounced by courts collides with no constitutional barrier. In my opinion the situation existing in the lumber mill town, the seat of .the present controversy, is a typical instance of the necessity for the modification of the usual effect of a discharge during and because of a labor dispute. The congressional mind was cognizant of the status of striking employees and did not regard them as strangers to the employer, which in fact they were not. In this view of the matter, no question of retrospective operation of the act is present. Jeffery-De Witt Insulator Co. v. National L. R. B., 4 Cir., 1937, 91 F.2d 134 , containing collation of authorities. It is not true that all cases supporting this decision arise from statutory enactment. When paralleled with the instant case, it is practically upon all fours with it. There is present in each case the element of discharge through affirmative action of the employer. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9642919. Public record. Not legal advice.