Labor Law: National Labor Relations Act: Employer's Refusal to Hire a Union Member as an "Unfair Labor Practice"

Following a strike at respondent corporation which had started prior to the effective date of the National Labor Relations Act, the respondent refused to hire two men who had ceased to be in its employ before the strike but who sought employment after its close. The National Labor Relations Board, finding that the men had been refused employment because of their affiliations with a union and hence that the respondent had violated section 8(3) of the act, ordered the corporation to offer the two men employment and also ordered reimbursement for the loss of pay, minus actual earnings in the meantime. The federal circuit court of appeals held that the board lacked power to order instatement of the rejected applicants as they were not "employees" within the meaning of the act. On certiorari to that court, the United States Supreme Court held that discrimination against union members at the time of hiring is an unfair labor practice within the meaning of section 8 (3), and that the board has the power to order an employer to offer employment and back pay to such applicant as well as to a discharged employee under section 10 (c), .even where he has obtained substantially equivalent employment, if such will "effectuate the policies of" the act. Chief Justice Hughes and Justice Stone concurred in the holding that refusal by an employer to hire an applicant because of his union affiliation is an unfair labor practice, but felt that the board has no power under section 10 (c) to order an employer to hire such applicant or give him "back pay." Phelps Dodge Corp. v. National Labor Relations Board, (U. S. 1941) 61 S. Ct. 845.6