Felix Frankfurter

“ The Supreme Court of Wisconsin itself acknowledged the supremacy of the war power in a decision suspending an order directing the reinstatement of an employee discharged under a maintenance-of-membership clause ordered by the War Labor Board. ”

“ No ruling by the courts or the National Labor Relations Board, the agency entrusted with administration of the Wagner Act, has adopted a construction of § 8 (3) in disregard of this legislative history. It is suggested, however, that the interpretation given the section of the War Labor Board supports petitioner's position. The Board, it is true, in view of the practical desirability of the maintenance-of-membership clause in settling wartime disputes over union security found authority to order contracts containing such clauses despite inconsistent State law. ”

“ The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code law, or otherwise.'↑ Although some language in the Greenebaum opinion seems to point to an interpretation of § 8 (3) inconsistent with its legislative history, see 10 War Lab.Rep. at 542-43, the Board adopted as its own the conclusion of its General Counsel, Mr. ”

“ Propaganda has been wide-spread that this proviso attaches special legal sanctions to the closed shop or seeks to impose it upon all industry. This propaganda is absolutely false. The reason for the insertion of the proviso is as follows: According to some interpretations, the provision of section 7 (a) of the National Industrial Recovery Act, 48 Stat. 198, assuring the freedom of employees 'to organize and bargain collectively through r presentatives of their own choosing,' was deemed to illegalize the closed shop. ”

“ See Exec. Order No. 9017, 50 U.S.C.A.Appendix, § 1507 note, 7 Fed.Reg. 237. That the two roles are quite distinct is illustrated by the policy of the War Labor Board of the First World War which outlawed 'yellow-dog' contracts for the duration of that war, thereby in effect nullifying this Court's then recent decision in Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 38 S.Ct. 65, 62 L.Ed. 260, L.R.A. 1918C, 497, Ann.Cas. 1918B, 461. See Smith & Wesson Co., War Lab.Bd. Docket No. 273; Gregg, The National War Labor Board, 33 Harv.L.Rev. ”

“ Where the State and federal laws do not overlap, no cession is necessary because the State's jurisdiction is unimpaired. This reading is confirmed by the purpose of the proviso in which the phrase is contained: to meet situations made possible by Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 67 S.Ct. 1026, 92 L.Ed. 1234. where no State agency would be free to take jurisdiction of cases over which the National Board had declined jurisdiction. See H.R.Rep. No. ”

“ We granted certiorari under 28 U.S.C. § 1257 (3) , 28 U.S.C.A. § 1257 (3) , because of the important bearing of these issues upon the distribution of power in our federal system. 335 U.S. 812, 69 S.Ct. 55. ”