Promises' End

Pleading for a two-year extension for NRA last month, President Roosevelt told Congress: "A great advance has been made in the opportunities and assurances of collective bargaining between employers and employes. Under it the pattern of a new order of industrial relations is definitely taking shape." Last week at Louisville, Ky. (see p. 15) and Wilmington, Del. the pattern of that new order was badly disarranged by two Federal judges who thought in terms of the Law rather than in terms of the social aspirations of the New Deal.

Collective bargaining and who should represent whom was the nub of the Weirton Steel case at Wilmington. For 14 months Industry on one side and Government and Labor on the other had been building up this court action into a major test, not only of Section 7a of NIRA but also of the deeper concept that the Federal Administration can control the minutest labor relations anywhere in the U. S. under that article of the Constitution which gives Congress the right to "regulate commerce with foreign nations and among the several States and with the Indian tribes."

Makings. The facts that went into the making of this issue were fairly simple. With the coming of the Blue Eagle, plant elections were indicated at Ernest Tener Weir's steel mills at Steubenville, Ohio, Clarksburg and Weirton, W. Va. At the last minute the old National Labor Board issued a new set of election rules which Mr. Weir rejected. Thereupon in December 1933 he held an election of his own which resulted in a thumping victory for Weirton Steel's company union. Disgruntled leaders of Amalgamated Iron, Steel & Tin Workers, an American Federation of Labor affiliate, let out a mighty howl that they had been tricked and cheated at the plant polls, that Mr. Weir's union was owned hand & foot by the company, that the steelmaster was a ruthless violator of Section 7a. Mr. Weir's attorneys replied that their client did not control the company union, that the plant elections were free and fair--and, even if they were not, the Government had no right under the "commerce clause" to meddle.

Egged on by the Labor Board, which in turn was egged on by the A. F. of L., Department of Justice prosecutors went to U. S. District Judge John Percy Nields at Wilmington, charged that Weirton was outside the law, asked for an injunction which would knock out the company union. When the case began as a paper fight, Judge Nields threw 1,060 affidavits out of court with orders that the deponents be brought before him so he could gauge their credibility on the witness stand (TIME, June 11). After this false start, it took nearly two months to hear the flesh & blood evidence both sides marched to the stand--the tales of union and non-union employes, the testimony of other great steelmasters, the fervid pleas of opposing counsel. Nothing seemed too trivial for Judge Nields to listen to with painstaking care.

Judge. In Delaware are incorporated many of the monster corporations of the country and to the Federal court in that State they carry most of their disputes. John Percy Nields probably tries more patent cases than any other judge in the land. In one sense the Weirton suit was a patent case in which Judge Nields was to decide whether company or A. F. of L. unions were to have precedence in Industry.

Judge Nields was born in Wilmington in 1868, graduated from Harvard Law School in 1892. His father was a captain of Delaware artillery in the Civil War. As Federal District Attorney in 1906, John Nields helped snuff out the Louisiana Lottery, whose printing offices were in Wilmington. He raided the lottery office, destroyed, among other things, complete samples of every kind of lottery ticket sold at that time in the U. S. and England. Because he is a devoted antiquarian, and avid student of Americana, this act of destruction must have been one of life's hardest tasks for John Nields. He left a lucrative law practice when President Hoover raised him to the Federal bench in 1930. But despite his politics and heritage, neither side of the Weirton case doubted for a moment that Judge Nields would hand down a strictly impartial decision. The trial closed last November. After long deliberation, Judge Nields was ready with his opinion last week.

Decision. He found against the Government upon both the issues of fact and the issues of law. The Weirton company union, he believed, was acceptable to a "great majority" of the workers. Far from sympathizing with the A. F. of L.'s attempt to organize the Weirton plant, Judge Nields found that its representatives had been guilty of "misrepresentation and threats of the closed shop." Weirton, therefore, had not violated Section 7a.

Was the company, or any other manufacturing concern, subject to Federal regulation under the commerce clause of the Constitution? Quite definitely no. thought Judge Nields. In reaching this, the broadest section of his opinion, he observed: "The manufacturing operations conducted by defendant in its various plants or mills do not constitute interstate commerce. . . . If defendant's manufacturing plants and manufacturing operations are to be regarded as instruments for the interstate movement of goods it follows that practically all of the manufacturing industry of the United States would be brought within the control of the Federal government. Such result has received the unqualified condemnation of the Supreme Court."

Since the New Deal's legalists had hung NRA's power to regulate Industry on the constitutional peg of affecting "the flow of interstate commerce," the Nields opinion was a potent body blow to the Administration. And, as if anticipating an appeal from his decision on "emergency" grounds, Judge Nields added: "The suggestion that recurrent hard times suspend constitutional limitations or cause manufacturing operations to so affect interstate commerce as to subject them to regulation by the Congress borders on the fantastic and merits no serious consideration."

Significance. "A complete vindication," beamed Steelmaster Weir, as he boarded a boat for a Bermuda holiday. Businessmen in general did not try to hide their smiles of satisfaction. In the midst of the general chorus of groans from Washington, no Administration voice of protest was heard, but NRA's lawyers announced at once that they would carry the Weirton fight to the Supreme Court.

To gloomy and disillusioned Labor the Weirton decision was just one more indication that the Administration had not been able to keep its rosy collective bargaining promises of two years ago. In the Senate the decision also had an effect on Senator Wagner's National Labor Relations Bill, whose fundamental premises had suddenly been given a set of question marks. Only nonpartisan who saw a silver lining for President Roosevelt & friends in the Weirton case outcome was Pundit Walter Lippmann. Said he: "What has been attempted under NRA . . . is a mixture of good and evil. . . . It was bound to break down. It has broken down. And the courts will do an historic service not only to the nation as a whole, but to recovery and reform, to the President and his party, if they liquidate a major part of the centralized regulation to which the New Deal has committed itself."

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