PHELPS DODGE CORP. V. NLRB, 313 U. S. 177 (1941)

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U.S. Supreme Court

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941)

Phelps Dodge Corp. v. NLRB

No. 387

Argued March 11, 1941

Decided April 28, 1941*

313 U.S. 177


1. Under § 8(3) of the National Labor Relations Act, an employer who refuses to hire an applicant for employment solely because of the applicant's affiliation with a labor union is guilty of an unfair labor practice. P. 313 U. S. 182.

2. When applicants have been unlawfully refused employment solely because of their affiliations with a labor union, § 10(c) of the Labor Act empowers the Labor Board to order the employer to undo the discrimination by offering them the opportunity for employment which should not have been denied them. P. 313 U. S. 187.

3. In this the Act does not violate the Fifth Amendment. P. 313 U. S. 187.

4. In § 10(c) of the Labor Act, empowering the Labor Board to require an employer guilty of an unfair labor practice to desist and

Page 313 U. S. 178

to take such affirmative action, "including reinstatement of employees with or without back pay," as will effectuate the policies of the Act, the participial phrase "including reinstatement," etc., is illustrative merely, and is not to be construed as a limitation upon the Board's power to remedy unlawful discrimination in the hiring as well as in the discharge of workers. P. 313 U. S. 188.

5. Under § 10(c) of the Labor Relations Act, an employer who has been guilty of the unfair labor practice of refusing to hire men because of their union affiliations may be required by the Board, for effectuation of the policies of the Act, to offer them opportunity for employment, even though they have, in the meantime, obtained regular and substantially equivalent employment elsewhere. P. 313 U. S. 189.

6. The broad meaning of the term "employee" as used in § 10(c) of the Labor Act and in the earlier part of § 2(3), is not restricted by the concluding clause of § 2(3), which declares that the term "employee" shall include any individual whose work has ceased as a consequence of any unfair labor practice "and who has not obtained any other regular and substantially equivalent employment." P. 313 U. S. 191.

This last provision is assignable to other purposes, e.g., for determining who are the "employees" with whom an employer must bargain collectively, §§ 8(5), 9(a), or who are to be treated as "employees" within a bargaining unit, § 9(b).

7. To deny the Board power to neutralize discrimination merely because workers have obtained other compensatory employment would confine the "policies of this Act" to the correction of private injuries, whereas the Board was not devised for such a limited function, but is the agency of Congress for translating into concreteness the purpose of safeguarding and encouraging the right of self organization. P. 313 U. S. 192.

8. Although an employer who has denied reemployment to workers solely because of their labor union affiliations may be required to offer them employment notwithstanding their having obtained equivalent employment elsewhere, this remedy does not flow from the Act automatically when the discrimination is found, but depends upon a finding by the Board, in the exercise of its informed discretion, that effectuation of the policies of the Act requires such reinstatement. P. 313 U. S. 193.

9. An order of the Labor Board requiring an employer to reinstate strikers who obtained other employment, should state the basis of the order. P. 313 U. S. 197.

Page 313 U. S. 179

10. The remedy of ordering back pay is in the Board's discretion, not mechanically compelled by the Act. P. 313 U. S. 198.

11. Where an order of the Labor Board requires that a worker be restored to employment and be compensated for loss of pay, deduction should be made not only for actual earnings of the worker while out of employment, but also for losses which he willfully incurred. P. 313 U. S. 197.

12. The amount of such deduction should be determined by the Board prior to formulation of it order. P. 313 U. S. 200.

113 F.2d 202, modified.

CERTIORARI, 312 U.S. 669, to review a judgment sustaining in part and in part disapproving an order of the National Labor Relations Board, 19 NLRB 547.

Page 313 U. S. 181

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