The opinion
GARRECHT, Circuit Judge
(dissenting) •
The increase and magnitude of the conflicts between employers and workers are appalling. In many instances much loss and suffering are precipitated upon those in no sense responsible for these difficulties and at times the general welfare of the country becomes involved in the struggle.
With deference to the very able opinion of the senior judge and of my brother who concurs in the result, I feel that a decision which deprives Congress of the power to establish a department of government clothed with authority to compose the increasing strife between employers and employees, which admittedly adversely affects interstate commerce, is to hamper the general welfare by crippling the government in the exercise of a most beneficial, even necessary, function in the modern field of industrial employment.
The necessity for legislation such as the National Labor Relations Act ( 49 Stat. 449 , 29 U.S.C.A. § 151 et seq.) is becoming increasingly apparent. The enactment of this statute by Congress was not beyond its power under the commerce clause of the Constitution.
The Congress has authority to maintain the orderly conduct of interstate commerce by providing for the peaceful settlement of disputes which threaten it. Texas & *633 New Orleans R. R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548 , 50 S.Ct. 427 , 74 L.Ed. 1034 .
The act (section 10(e), 29 U.S.C.A. § 160 (e) provides that “The findings of the Board as to the facts, if supported by evidence, shall be conclusive.” See National Labor Relations Board v. National New York Packing & Shipping Co. (C.C.A.) 86 F. (2d) 98.
The Board found that the Mackay Radio & Telegraph Company was a corporation engaged in interstate commerce; that it had violated the act, in that it was guilty of unfair labor practices by interfering with the right of its employees to organize and by discrimination with regard to hire and tenure of employment and other conditions so as to discourage membership in labor organizations. There is evidence to sustain the findings.
The evidence is convincing that the five employees were discharged by the company because of their efforts and prominence in the organization work of the union and with the strike against the company.
Four of these employees were classed as operators earning the top salary. Respondent’s traffic manager in immediate charge of the San Francisco operators testified that they were among his best operators. A supervisor of the company testified that the other employee discharged was also a first-class operator. At no time during the strike, in the period following it, or before the Board, was the efficiency of these employees questioned.
The evidence further shows that these five operators were all members of the San Francisco Local of the American Radio Telegraphists’ Association, and active in organization work. Most of them were members of the grievance or relations committee which had conducted the first negotiations with respect to a proposed general agreement with the Mackay Company relating to wages and conditions of employment. Some were active leaders in the strike and some were on the administrative committee which contacted all the Mackay employees. In fact, the San Francisco Local, by reason of its strength and active leadership, was the dominant unit and the center of A. R. T. A. activity. In eliminating these leaders, the company delivered an effective blow at the whole national organization.
On rather technical grounds it is sought to elminate the order of the Board which requires that respondent shall‘cease and desist “from discharging or threatening to discharge any of its employees for the reason that such employees have joined or assisted the American Radio Telegraphists’ Association, San Francisco Local No. 3, or otherwise engaged in union activities.” It is suggested that, while the -original complaint contained the allegation that the respondent was guilty of these acts, the amended complaint does not. However that may be, the answer of respondent filed in this court denied that they were guilty of these charges, and evidence in relation thereto was received at the hearing and no objection on this ground is made by respondent. The act specifically provides that “No objection that has not been urged before the Board, its member, agent or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” After the evidence was taken, the Board moved to have the pleadings conform to the evidence and in that connection filed the amended complaint. It cannot fairly be said that thereby the charge which had been the subject of much evidence and which is denied in the answer and which finds place in the order should be totally disregarded upon this court’s own motion.
It is suggested in the concurring opinion that these men were not employees within the meaning of the act and were not discharged, but quit. As pointed out by the main opinion, to reach such a conclusion is to ignore the declaration of the act itself that employees on a strike are to be considered still as employees.
The "main opinion, however, by disregarding or discrediting the evidence for the employee operators and by accepting with innocent credulity the explanation for the refusal to re-employ, as given by the agents for the respondent, reached the conclusion that the employees were deprived of their positions for causes entirely independent of any labor difficulties or organization activities; and makes the further statement that to deprive the employer of his inalienable right to hire and fire at will is to violate fundamental constitutional guarantees, particularly the Fifth Amendment. The main opinion holds explicitly “that by reason of the Fifth Amendment to the Con *634 stitution Congress has no power to compel employers and employees engaged in interstate commerce to negotiate their contracts of employment in a specific way and to prohibit the negotiation in any other way.” As will be pointed out hereafter, even the authorities relied upon in the main opinion do not go to any such extreme.
There is a canon of statutory construction formulated by the courts, often more honored in its breach than in its observance, that no law should be set aside as unconstitutional unless it was clearly so beyond reasonable doubt.
As early as 1811 Chief Justice Tilghman of Pennsylvania in Com. v. Smith, 4 Bin. (Pa.) 117, while asserting the power of the court to hold laws unconstitutional, but declining to exercise it in this particular case, stated the rule as follows:
“ * * * for weighty reasons, it has been assumed as a principle in construing constitutions, by the Supreme Court of the United States, by this court, and every other court of reputation in the United States, that an act of the legislature is not to be declared void, unless the violation of the constitution is so manifest as to leave no room for reasonable doubt.”
In Dartmouth College v. Woodward, 4 Wheat. 518 , at page 625, 4 L.Ed. 629 , Mr. Chief Justice Marshall took occasion to state: “On more than one occasion, this court has expressed the cautious circumspection with which it approaches the consideration of such questions; and has declared, that in no doubtful case, would it pronounce a legislative act to be contrary to the constitution.”
Again, in Ogden v. Saunders, 12 Wheat. 213, 270 , 6 L.Ed. 606 , it was said: “But if I could rest my opinion in favor of the constitutionality of the law on which the question arises, on no other ground than this doubt so felt and acknowledged, that alone, would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due «to the wisdom, the integrity and the patriotism of the- legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt.”
Also, in Adkins v. Children’s Hospital, 261 U.S. 525, 544 , 43 S.Ct. 394, 396 , 67 L.Ed. 785 , 24 A.L.R. 1238 , the Supreme Court stated: “The judicial duty of passing upon the constitutionality of an act of Congress is one of great gravity and delicacy. The statute here in question has successfully borne the scrutiny of the legislative branch of the government, which, by enacting it, has affirmed its validity, and that determination must be given great weight. This court, by an unbroken line of decisions from Chief Justice Marshall to the present day, has steadily adhered to the rule that every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt.”
The act here in question has been before many District Courts that have held it to be constitutional. Their decisions are not binding upon this court, still many of the judges rank high for their ability, and the well-argued presentations of their views are worthy of respect and have served to strengthen my own opinion that it cannot be said that there exists between the Constitution and this law and beyond all reasonable doubt a clear and unmistakable conflict. Moreover, other Circuit Courts of Appeals of equal standing and -authority with this court likewise have sustained the constitutionality of the acts of the Board under the act National Labor Relations Board v. The Associated Press, 85 F.(2d) 56 (C.C.A. 2); National Labor Relations Board v. Washington, Virginia and Maryland Coach Co., 85 F.(2d) 990 (C.C. A. 4) ; Bradley Lumber Co. v. National Labor Relations Board, 84 F.(2d) 97 (C. C.A. 5).
In giving consideration to these decisions, which harmonize with my own views, I feel that I cannot hold that the action of the Board in the case at bar was unconstitutional, or that the order prayed for should not be granted.
The main opinion holds that the action of the National Labor Relations Board violates the Fifth Amendment to the Constitution. This conclusion is rested on the authority of Adair v. United States, 208 U.S. 161 , 28 S.Ct. 277 , 52 L.Ed. 436 , 13 Ann.Cas. 764, and Coppage v. Kansas, 236 U.S. 1 , 35 S.Ct. 240 , 59 L.Ed. 441 , L.R.A. 1915C, 960 . In both of these cases, as the main opinion suggests, the question before us was involved only in a minor degree. The Adair Case relies upon the decision of the court in Lochner v. New York, 198 U.S. 45 , 25 S.Ct. 539 , 49 L.Ed. 937 , 3 Ann.Cas. 1133.
*635 As this latter case is made the basis for the decisions relied upon in the main opinion, the fact should not be lost sight of that there a state statute purporting to be a health regulation passed by virtue of the police power was involved. The National Labor Relations Act, on the other hand, was passed as a regulatory measure applicable to interstate commerce, a field of legislation over which Congress has been given jurisdiction by the Constitution. The federal power to regulate instrumentalities of interstate communication such as telegraph companies or radio broadcasting stations has been upheld. Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1, 9, 10 , 24 L.Ed. 708 ; Federal Radio Comm. v. Nelson Bros. Co., 289 U.S. 266, 279 , 53 S.Ct. 627, 633 , 77 L.Ed. 1166 , 89 A.L.R. 406 ; Fisher’s Blend Station v. Tax Comm., 297 U.S. 650 , 56 S.Ct. 608 , 80 L.Ed. 956 .
That the court in the Adair Case did not intend to give that decision the wide sweep that is taken in the main opinion here is clear from the restricted language used. There it was said ( 208 U.S. 161 , at page 180, 28 S.Ct. 277, 283 , 52 L.Ed. 436 , 13 Ann.Cas. 764) : “It results, on the whole case, that the provision of the statute under which, the defendant was convicted must be held to be repugnant to the 5th Amendment, and as not embraced by nor within the power of Congress to regulate interstate commerce, but under the guise of regulating interstate commerce, and as applied to this case, it arbitrarily sanctions an illegal invasion of the personal liberty as well as the right of property of the defendant Adair.”
This limitation was also stressed in the dissenting opinion ( 208 U.S. 161 , at page 181, 28 S.Ct. 277, 283 , 52 L.Ed. 436 , 13 Ann.Cas. 764) : “The principle upon which the opinion is grounded is, as I understand it, that a labor organization has no legal or logical connection with interstate commerce, and that the fitness of an employee has no dependence or relation with his membership in such organization. It is hence concluded that to restrain his discharge merely on account of such membership is an invasion of the liberty of the carrier guaranteed by the 5th Amendment of the Constitution of the United States. The conclusion is irresistible if the propositions from which it is deduced may be viewed as abstractly as the opinion views them. May they be so viewed?”
Indeed, the decision in the Adair Case itself indicates that circumstances such as confront us here, where interstate commerce is involved and the rights of the general public prejudiced, might justify a different holding. This is easily discerned in the quotations given in the main opinion. Speaking of a section of the act of Congress there under consideration, the following was said ( 208 U.S. 161 , at page 172, 28 S.Ct. 277, 279 , 52 L.Ed. 436 , 13 Ann. Cas. 764) : “The first inquiry is whether the part of the 10th section of the act of 1898 upon which the first count of the indictment was based is repugnant to the 5th Amendment of the Constitution, declaring that no person shall be deprived of liberty or property without due process of law. In our opinion that section, in the particular mentioned, is an invasion of the personal liberty, as well as of the right of property, guaranteed by that Amendment. Such liberty and right embrace the right to make contracts for the purchase of the labor of others, and equally the right to make contracts for the sale of one’s own labor; each right, however, being subject to the fundamental condition that no contract, whatever its subject-matter, can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests, or as hurtful to the public order, or as detrimental to the common good."
We have italicized the portion to which we direct attention as sustaining our view. We quote further from the main opinion ( 208 U.S. 161 , at page 173, 28 S.Ct. 277, 280 , 52 L.Ed. 436 , 13 Ann.Cas. 764) : “ ‘The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U.S. 578 , 17 S. Ct. 427 , 41 L.Ed. 832 . Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this Amendment, unless there are circumstances which exclude the right/”
Here, again, we have italicized a modifying clause which would distinguish the cases relied upon from the case at bar.
To confine this opinion to reasonable limitations prevents reviewing the many *636 cases in which employment relations have been subjected to regulations and where parties have invoked the due process clauses of the Fifth and Fourteenth Amendments without success. A few may be mentioned to indicate the wide field covered by these decisions. Among those dealing with statutes prescribing the character, method, and time of payment of wages may be included: McLean v. Arkansas, 211 U. S. 539 , 29 S.Ct. 206 , 53 L.Ed. 315 ; Knoxville Iron Co. v. Harbison, 183 U.S. 13 , 22 S.Ct. 1 , 46 L.Ed. 55 ; Keokee Consolidated Coke Co. v. Taylor, 234 U.S. 224 , 34 S.Ct. 856 , 58 L.Ed. 1288 ; Erie R. R. Co. v. Williams, 233 U.S. 685 , 34 S.Ct. 761 , 58 L.Ed. 1155 , 51 L.R.A.(N.S.) 1097; Statutes fixing hours of labor; Holden v. Hardy, 169 U.S. 366 , 18 S.Ct. 383 , 42 L.Ed. 780 ; Bunting v. Oregon, 243 U.S. 426 , 37 S. Ct. 435 , 61 L.Ed. 830 , Ann.Cas.1918A, 1043.
The employment activities of the workers here involved concededly were in the field of interstate commerce which makes the act even more applicable.
The power of Congress to regulate commerce is paramount and is unrestrained, except by limitations in the Constitution upon its authority. The only limitation presented by the Constitution is that the laws enacted shall be necessary and proper, which question generally is exclusively within the province of Congress to determine.
The full extent of the burden of these industrial disputes is not always realized, but upon occasion the interruption is so acute and of such consequence to the country as to engage the attention of members of the Cabinet and even the President himself.
Investigation of the causes of most of these industrial disturbances show that controversies as to wages, hours of work, or matters of working' conditions and the insistence of employees of the right to organize for self-protection have brought about most of these conflicts. With the development of modern industry the necessity for such organization has become more apparent and the right of the workers to participate in such activities has been recognized.
As Mr. Chief Justice Taft said in American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209 , 42 S.Ct. 72, 78 , 66 L.Ed. 189 , 27 A.L.R. 360 : “They [labor unions] were organized out of the necessities of the situation. A single employee was helpless in dealing with an employer. He was dependent ordinarily on his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and to resist arbitrary and unfair treatment. Union was essential to give laborers opportunity to deal on equality with their employer. They united to exert influence upon him and to leave him in a body in order by this inconvenience to induce him to make better terms with them. They were withholding their labor of economic value to make him pay what they thought it was worth. The right to combine for such a lawful purpose has in many years not been denied by any court.”
The National Labor Relations Act was enacted to relieve the burdens or obstructions placed on interstate commerce under similar circumstances and conditions. In Chicago, B. & Quincy R. R. Co. v. McGuire, 219 U.S. 549 , at pages 566-568, 31 S.Ct. 259, 262 , 55 L.Ed. 328 , in an opinion by Mr. Justice Hughes, it is said:
“It has been held that the right to make contracts is embraced in the conception of liberty as guaranteed by the Constitution. Allgeyer v. Louisiana, 165 U.S. 578 , 17 S.Ct. 427 , 41 L.Ed. 832 ; Lochner v. New York, 198 U.S. 45 , 25 S.Ct. 539 , 49 L.Ed. 937 , 3 Ann.Cas. 1133; Adair v. United States, 208 U.S. 161 , 28 S.Ct. 277 , 52 L.Ed. 436 , 13 Ann.Cas. 764. In Allgeyer v. Louisiana, supra, the court, in referring to the 14th Amendment, said [ 165 U.S. 578 , at page 589, 17 S.Ct. 427 , 41 L.Ed. 832 ]: ‘The liberty mentioned in that Amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is .deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose td enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.’ But it was recognized in the cases cited, as in many others, that freedom of contract is a qualified, and not an absolute, right. There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty *637 qf liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community. Crowley v. Christensen, 137 U.S. [86] 89, 11 S.Ct. 13 , 34 L.Ed. [620] 621; Jacobson v. Massachusetts, 197 U.S. 11 , 25 S.Ct. 358 , 49 L.Ed. 643 , 3 Ann.Cas. 765. ‘It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts. It may deny to all the right to contract for the purchase or sale of lottery tickets; to the minor the right to assume any obligations, except for the necessaries of existence; to the common carrier the power to make any contract releasing himself from negligence; and, indeed, may restrain all engaged in any employment from any contract in the course of that employment which is against public policy. The possession of this power by government in no manner conflicts with the proposition that, generally speaking, every citizen has a right freely to contract for the price of his labor, services, or property.’ Frisbie v. United States, 157 U.S. [160] 165, 166, 15 S.Ct. 586 , 39 L.Ed. [657] 658, 659.
“The right to make contracts is subject to the exercise of the powers granted to Congress for the suitable conduct of matters of national concern; as, for example, the regulation of commerce with foreign nations and among the several states. Addyston Pipe & Steel Co. v. United States, 175 U.S. [211] 228-231, 20 S.Ct. 96 , 44 L.Ed. [136] 142-144; Patterson v. The Eudora, 190 U.S. [169] 174-176, 23 S.Ct. 821 , 47 L.Ed. 1002, 1006, 1007 ; Atlantic Coast Line Co. v. Riverside Mills, 219 U.S. 186 , 31 S.Ct. 164 , 55 L.Ed. 167 [31 L.R.A.(N.S.) 7]; Louisville & Nashville R. R. Co. v. Mottley (decided this day) 219 U.S. 467 , 31 S.Ct. 265 , 55 L.Ed. 297 [34 L.R.A.(N.S.) 671].”
In the case of Atlantic Coast Line Railroad Company v. Riverside Mills, 219 U.S. 186, 201-203 , 31 S.Ct. 164, 168 , 55 L.Ed. 167 , 31 L.R.A.(N.S.) 7, the court there said:
“It must be conceded that the effect of the act in respect of carriers receiving packages in one state for a point in another, and beyond its own lines, is to deny to such an initial carrier the former right to make a contract limiting liability to its own line. This, it is said, is a denial of the liberty of contract secured by the 5th Amendment to the Constitution. To support this, counsel cited such cases as Allgeyer v. Louisiana, 165 U.S. [578] 589, 17 S.Ct. 427 , 41 L.Ed. [832] 835; Lochner v. New York, 198 U.S. 45 , 25 S.Ct. 539 , 49 L.Ed. 937 , 3 Ann.Cas. 1133; and Adair v. United States, 208 U.S. 161 , 28 S.Ct. 277 , 52 L.Ed. 436 , 13 Ann.Cas. 764.
“This power to regulate is the" right to prescribe the rules under which such commerce may be conducted. ‘It is,’ said Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 1, 197 , 6 L.Ed. 23, 70 , ‘the power * * * vested in Congress as absolutely as it would be in a single government having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.’ It is a power which extends to the regulation of the appliances and machinery and agencies by which such commerce is conducted. * * * In the Employers’ Liability Cases (Howard v. Illinois Cent. R. Co.), 207 U.S. 463, 495 , 28 S.Ct. 141 , 52 L.Ed. 297 , power to pass an act which regulated the relation of master and servant, so as to impose on the carrier, while engaged in interstate commerce, liability for the negligence of a fellow servant, for which at common law there was no liability, and depriving such carrier of the common-law defense of contributory negligence save by way of reduction of damages, was upheld. In Addyston Pipe Co. v. United States, 175 U.S. 211 , 20 S.Ct. 96 , 44 L.Ed. 136 , and Northern Securities Co. v. United States, 193 U.S. 197 , 24 S.Ct. 436 , 48 L.Ed. 679 , it was held that this power of regulation extended to and embraced contracts in restraint of trade between the states.
“It is obvious, from the many decisions of this court, that there is no such thing as absolute freedom of contract. Contracts which contravene public policy cannot be lawfully made at all; and the power to make contracts may in all cases be regulated as to form, evidence, and validity as to third persons. The power of government extends to the denial of-liberty of contract to the extent of forbidding or regulating every contract which is reasonably calculated to injuriously affect the public interests. Undoubtedly the United States is a government of limited and delegated *638 powers, but in respect of those powers which have been expressly delegated, the power to regulate commerce between the states being one of them, the power is absolute, except as limited by other provisions of the Constitution itself.
“Having the express power to make rules for the conduct of commerce among the states, the range of congressional discretion as to the regulation best adapted to remedy a practice found inefficient or hurtful is a wide one. If the regulating act be one directly applicable to such commerce, not obnoxious to any other provision of the Constitution, and reasonably adapted to the purpose by reason of legitimate relation between such commerce and the rule provided, the question of power is foreclosed. ‘The test of power,’ said Mr. Justice White, speaking for this court in the Employers’ Liability Cases, cited above, ‘is not merely the matter regulated, but whether the regulation is directly one of interstate commerce, or is embraced within the grant * * * conferred on Congress to use all lawful means necessary and appropriate to the execution of the power to regulate commerce.’ "
In the recent case of Nebbia v. New York, 291 U.S. 502 , 54 S.Ct. 505 , 78 L.Ed. 940 , 89 A.L.R. 1469 , Mr. Justice Roberts thus summarized the principles involved: “The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases.” 291 U.S. 502 , at pages 527, 528, 54 S.Ct. 505, 512 , 78 L.Ed. 940 , 89 A.L.R. 1469 . “Neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm.” 291 U.S. 502 , at page 523, 54 S.Ct. 505, 510 , 78 L.Ed. 940 , 89 A.L.R. 1469 . “The Fifth Amendment, in the field of federal activity, and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power. * * * And the Guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the obj ect sought to be attained.” 291 U.S. 502 , at page 525, 54 S.Ct. 505, 510 , 78 L.Ed. 940 , 89 A.L.R. 1469 .
It is urged, and supported with considerable force of reason that the Adair, Cop-page, and Lochner Cases, which were decided by a divided court, in so far as they may be applicable to the case at bar, have been modified or overruled by the later case of Texas & New Orleans R. R. Co. v. Brotherhood of Railway Clerks, 281 U. S. 548 , 50 S.Ct. 427 , 74 L.Ed. 1034 , which was decided in 1930 by a unanimous court. From a careful reading and a comparison of all of these opinions this conclusion seems well founded.
The case of Texas & New Orleans R. R. Co. v. Brotherhood of Railway Clerks, supra, is in many particulars strikingly similar to the case at bar. In asserting the same principle with respect to the constitutional issue, the court, speaking through Mr. Chief Justice Hughes, there said ( 281 U.S. 548 ,. at page 570, 50 S.Ct. 427, 434 , 74 L.Ed. 1034 ) : “It has long been recognized that employees are entitled to organize for the purpose of securing the redress of grievances and to promote agreements with employers relating to rates of pay and conditions of work. American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209 , 42 S.Ct. 72 , 66 L.Ed. 189 , 27 A.L.R. 360 . Congress was not required to ignore this right of the employees but could safeguard it and seek to make their appropriate collective action an instrument of peace rather than of strife.”
It was there urged that the cases of Adair and Coppage were controlling, but in disposing of that argument the court said ( 281 U.S. 548 , at pages 570, 571, 50 S. Ct. 427, 434 , 74 L.Ed. 1034 ) : “The petitioners invoke the principle declared in Adair v. United States, 208 U.S. 161 , 28 S.Ct. 277 , 52 L.Ed. 436 , 13 Ann.Cas. 764, and Coppage v. Kansas, 236 U.S. 1 , 35 S.Ct. 240 , 59 L.Ed. 441 , L.R.A.1915C, 960, but these decisions are inapplicable. The Railway Labor Act of 1926 does not interfere with the normal exercise of the right of the carrier to selqct its employees or to discharge them.”
So in this case the act does not interfere with the normal right of an employer, but is designed to prevent him from interfering with the rights of the employees to organize themselves into effective unions and to be members thereof.
We are concerned here only with the right of the employee, as stated in the act, *639 “to self-organization, to form, join, or assist labor organizations * * * and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection” ( 29 U.S.C.A. § 157 ), and without the discrimination of the employer “in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization” ( 29 U.S.C.A. § 158 (3), rights which are guaranteed by the act. As we have seen, protection of these rights is not a new or unusual principle, but one which has been developed by statute and decision over a long period of years.
Furthermore, it was the purpose of the act, as already stated, to relieve interstate and foreign commerce from the burdens caused by labor disputes. We quote from section 1 ( 29 U.S.C.A. § 151 ): “Experience has proved that protection by law of the right of employees to organize and bargain collectively safe-guards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.”
It is appropriate -here to quote again the language of Mr. Chief Justice Hughes in Texas & New Orleans R. R. Co. v. Brotherhood of Railway Clerks, supra, 281 U.S. 548 , at page 570, 50 S.Ct. 427, 433 , 74 L.Ed. 1034 : “We entertain no doubt of the constitutional authority of Congress to enact the prohibition. The power to regulate commerce is the power to enact ‘all appropriate legislation’ for its ‘protection or advancement’ (The Daniel Ball, 10 Wall. 557, 564 , 19 L.Ed. 999 ); to adopt measures ‘to promote its growth and insure its safety’ (County of Mobile v. Kimball, 102 U.S. 691, 696, 697 , 26 L.Ed. 238 ); to ‘foster, protect, control, and restrain’ (Second Employers’ Liability Cases, 223 U.S. 1, 47 , 32 S.Ct. 169, 174 , 56 L.Ed. 327 , 38 L.R.A.(N.S.) 44). Exercising this authority, Congress may facilitate the amicable settlements of disputes which threaten the service of the necessary agencies of interstate transportation. In shaping its legislation to this end, Congress was entitled to take cognizance of actual conditions and to address itself to practicable measures.”
In its effort to distinguish the Texas & N. O. R. R. Co. Case, supra, from the present suit, the main opinion seems somewhat inconsistent. The opinion points out that in the railroad case “it was held that the statute gave a right to the employees upon which they could seek the intervention of the court to enjoin the Railroad Company from an interference with that right.” In that case the Supreme Court held ( 281 U.S. 548 , at page 560, 50 S.Ct. 427, 430 , 74 L.Ed. 1034 ), that the discharge from the service of the Railroad Company of leading representatives of the Brotherhood helped to give “support, despite the attempted justification of these proceedings, to the conclusion of the courts below that the railroad company and its officers were actually engaged in promoting the organization of the association in the interest of the company and in opposition to the brotherhood, and that these activities constituted an actual interference with the liberty of the clerical employees in the selection of their representatives.”
In another portion of the main opinion in this case, it is conceded that, “as the right to bargain collectively is a well-recognized right, Congress can protect that right.”
In other words, the main opinion concedes the power of Congress to protect employees from coercion — by means of dismissal or refusal to re-employ — in connection with the employees’ right to select their own agents to represent them in negotiating an arbitration agreement. But the main opinion denies the power of Congress to protect employees from coercion— likewise by means of dismissal or refusal to re-employ — in connection with another conceded right of the employees; namely, that of collective bargaining.
The parallelism between these two types of labor rights is, in my opinion, inescapable. Each should be equally within the protection of congressional action agains’t coercion by the employers, in the form of dismissal or, as here, cutting off the employees by reason of difficulties arising out of the strike, particularly sought to be avoided by the act.
The main opinion argues for absolute liberty to contract, but the irony of the situation is that under existing economic *640 conditions such freedom as between master and worker is mostly mythical. The only liberty interfered with is the liberty of the strong to oppress the weak.
The main opinion contends that any limitation on the freedom of contract between employee and employer is obnoxious to the constitution. However, legislatures have frequently passed such statutes which courts have upheld upon the theory, as stated by Mr. Chief Justice Taft (Adkins v. Children’s Hospital, 261 U.S. 525, 562 , 43 S.Ct. 394, 403 , 67 L.Ed. 785 , 24 A.L.R. 1238 , that the lawmaking body might proceed on the assumption that employees, in some circumstances, “are not upon a full level of equality of choice with their employer and in their necessitous circumstances are prone to accept pretty much anything that is offered. They are peculiarly subject to the overreaching of the harsh and greedy employer.” Indeed, as pointed out by Mr. Justice Holmes ( 261 U.S. 525 ,’ at page 571, 43 S.Ct. 394, 406 , 67 L.Ed. 785 , 24 A.L.R. 1238 ), it has been asserted by a noted authority that it is the doctrine of modern economists of all schools that “freedom of contract is a misnomer as applied to a contract between an employer and an ordinary individual employee.”
Economic domination must be kept within definitely just limits, and, where necessary, government, where possible, should exercise effective control and, where the evil embraces the field of interstate commerce, the right so to do within the Constitution cannot be questioned.
To avoid the force and effect of the decisions which sustain the power of Congress in labor matters where the effect on interstate commerce is direct, the main opinion has sought to narrow the purpose of the National Labor Relations Act in an unwarranted degree. Says the opinion: “In the case at bar, for instance, it is clear that the National Labor Relations Act was intended to deal with indirect and remote effects upon interstate commerce, such as the decrease in volume of interstate commerce due to the decreased buying power of the employees whose wages' were reduced and the decreased transportation due to the failure to produce raw and manufactured products for transportation.”
A reading of the act itself shows how erroneous is this restricted view. Says the act: “Section 1. The denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce by (a) impairing the efficiency, safety, or operation of the instrumentalities of commerce; (b) occurring in the current of commerce; (c) materially affecting, restraining, or controlling the flow of raw materials or manufactured or processed goods from or into the channels of commerce, or the prices of such materials or goods in commerce; or (d) causing diminution of employment and wages in such volume as substantially to impair or disrupt the market for goods flowing from or into the channels of commerce.” 29 U.S.C.A. § 151 .
To verify the existence of the evils enumerated which are sought to be eliminated, we need only to take judicial notice of what is going on all. about us. In these struggles and conflicts between employers and workers, the loss and suffering entailed thereby perhaps fall most heavily upon the innocent public. Regulation which will minimize these evils is a necessity.
In the main opinion the rights of the ' master are exaggerated and distorted; while the equal rights of the employee are waived aside or overlooked, and, more significantly still, the rights of the public in a controversy such as this are ignored and utterly disregarded. Labor troubles involving the Mackay Radio & Telegraph Company, like those involving ships, railroads, and other public service ownerships which impair the efficiency of the service, cannot but affect the general public. The employers may own the wires, ships, and rails, but the public has a right to have them operate efficiently for the general welfare, and the Congress has a duty to maintain this right by proper legislation and prevent unfair or capricious interference with or obstruction of the usual flow of this commerce.
So, here, the National Labor Relations Act “does not interfere with the normal exercise of the right” of the employer to hire or discharge his employees for incompetency, dishonesty, neglect of duty, or for any ordinary cause, but is aimed to protect employees in their rights as set forth in the act.
*641 The main opinion also sustains the contention of respondent -that the order of the Board requiring it to pay to the wrongfully discharged employees an amount equal to what they would have earned had they not- been discharged is a violation of the Seventh Amendment which guarantees the right of trial by jury. This is a proceeding in equity, and the primary relief sought is the reinstatement of the discharged employees and the award for wages at the regular rate of salary for the time out by reason of the wrongful discharge is an incident' to the equitable relief granted. The Supreme Court said in Shields v. Thomas, 18 How.(59 U.S.) 253, 261, 262, 15 L.Ed. 368 : “We can perceive no force in the effort to sustain this objection by citation of the 7th amendment of the Constitution of the United States, which provides ‘that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.’ This provision, correctly interpreted, cannot be made to embrace the established, exclusive jurisdiction of courts of equity, nor that which they have exercised as concurrent with courts of law; but should be understood as limited to rights and remedies peculiarly legal in their nature, and such as it was proper to assert in courts of law, and by the appropriate modes and proceedings of courts of law.”
In Texas & N. O. R. R. Co. v. Brotherhood of Railway Clerks an order under the Railway Labor Act of 1926, requiring reinstatement, with back pay, of three workers discriminatorily discharged “in violation of the law and of the injunction” ( 25 F.(2d) 876 , at page 878), was held not to have gone “beyond the proper enforcement” of the act ( 281 U.S. 548 , at page 571, 50 S.Ct. 427, 434 , 74 L.Ed. 1034 ).
The contention made, based upon the violation of the Seventh Amendment, has been admirably answered in the case of Agwilines, Inc., v. National Labor Relations Board, 87 F. (2d) 146, decided by the Circuit Court of Appeals for the Fifth Circuit on December 22, 1936, and which became available for study only after the preceding paragraphs had been written. Indeed, it would have been sufficient to have rested this dissent on the decision in that case, the facts of which were similar to the one at bar.
The petition should be granted.