Page images
PDF
EPUB

Mr. SHROYER. Let me say this, Mr. Chairman, that, of course, I have some clients. I would not be in business if I did not have some clients. I am definitely not testifying for any client today.

I also want to say that I have no client who has employed me in

[blocks in formation]

TESTIMONY OF THOMAS E. SHROYER, OF THE LAW FIRM OF POOLE, SHROYER & DENBO, WASHINGTON, D. C.

Mr. SHROYER. My name is Thomas E. Shroyer, and my business address is 1625 K Street, Washington, D. C.

When I left here 3 months ago, I am sure that I did not expect to be back this soon. I think that I might say that it was a lot more

comfortable on that side of the table than it it here.

What I have tried to do in this statement, and you will notice it is boiled down to 11 pages, is to set forth every provision of the Taft-Hartley law, and to compare it with the Wagner Act. Of course, with respect to every paragraph here, we might discuss it for the entire morning. I expect to depart from the prepared statement from time to time, and some of it I may not read because I do not think it is controversial. I welcome questions at any time.

I propose to discuss with you what I regard as the fundamentals of the Taft-Hartley Act. To some people this law is regarded as creating "slave labor." To others, it is still regarded as being "loaded" in favor of labor. Some editors apparently are not aware that there is anything in the law but the national emergency, 80-day-injunction provision.

Everyone who appears here to testify is going to be considered as prejudiced by one side or the other. I admit I am in favor of the Taft-Hartley Act. I do not think that I ever made any secret of that while I was working for the committee. I was standing by at the birth, having sat through over 6 full weeks of hearings, 7 weeks of almost daily executive sessions of the committee, 3 full weeks of debate on the Senate floor, 2 additional days of debate on the conference report, and finally 48 hours of debate before the Presidential veto was overridden. Even with all this, I was not around when much of the spade work was done.

Listening to Senator Taft tell of all the background, when he first came to the Senate, I have to admit that I really was not around when the real spade work was done.

As I have pointed out in my statement, the long Smith committee investigations of 1939-40, and the Case bill hearings, and debate in 1935 provided much of what finally went into the Taft-Hartley law.

Right at this point let me also say that I was strongly in favor of the Wagner Act. I was regional attorney for the National Labor Relations Board for 6 years. Quite a bit of that time was spent in Cincinnati and in that office we had jurisdiction of Kentucky, West Virginia, parts of Indiana, and southern Ohio.

Back in those days when the Wagner Act was passed, the total union membership was some 3 million people. Unions were comparatively weak; they needed protection. I am quite proud, Senator

Neely, of some of the cases I tried in your State where I think probably for the first time in company towns, some employees whose only crime was to join the unions found relief.

By the end of the war, union membership, however, had grown to some 15 million. In my opinion, by 1946 there was as much need for some amendments to the Wagner Act as there had been for the enactment of the Wagner Act in the first instance.

The Taft-Hartley Act was an amendment to the Wagner Act. In considering what was the intent and purpose of the Taft-Hartley Act, it is sometimes helpful to point out just how it did amend the Wagner Act.

Section 7 of the act was often called the heart of the Wagner Act. It guaranteed to employees the right to join unions and to engage in concerted activities. The Taft-Hartley Act continued that right and extended it to guarantee the additional right to refrain from any and all of such activities.

I once heard a prominent union attorney attempt to express the differences in the two laws, and he did it this way: He said, "Under the Wagner Act, the Government was saying that your Government wants you to join unions," and he went on to say that "Under the Taft-Hartley Act the Government was saying that it did not give a darn whether you joined unions or not, but it would protect both rights."

The Wagner Act made it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7, or in other words, the right to join and assist unions. The typical case we had under the Wagner Act under this section was the case where the employer would say, "If you join the union I am going to close down"; or the foreman would say, "If you join a union you will get fired"; or where the foreman would say, "If you do not join the union, we will give you a wage increase.'

Now, the Taft-Hartley Act continued that provision and extended it also to make it an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of their rights guaranteed in section 7. This refers to the extension of section 7, the protection of the right not to engage in concerted activities. I think what Congress was thing of, and surely the cases where the Board has applied this provision, are cases of coercion and mass picketing. If you have a right not to engage in strikes, shall we say, and you are prevented from going to work by coercion and mass picketing, section 8 (b) (1) has been violated.

The Wagner Act required an employer to bargain in good faith with a union which represented the majority of his employees. The Taft-Hartley Act continued that provision and extended it to require unions also to bargain in good faith with employers.

Back in 1947 it was asked, "Why in the world do you have to require unions to bargain? They don't exist for any purpose but to bargain." But there was a lot of bargaining that was not in good faith. A typical example in which this provision has been used is the situation where a union might come in and say: "Here is a contract; take it or leave it." That is not bargaining in good faith.

Or let us say a union came in and said: "We want a closed shop," or "We want a checkoff provision which isn't authorized by the individual

members," or "We want a welfare fund that isn't a trust fund." That would not be good-faith bargaining on the union side.

Senator TAFT. You mean if they said that sine qua non, they will not discuss it? Is that what you mean?

Mr. SHROYER. That is right, and if an employer comes in with an utterly closed mind and refuses to discuss subjects, he has violated the other section of the law which requires an employer to bargain in good faith.

The Wagner Act made it an unfair labor practice for an employer to interfere with the formation or administration of a union; in other words, it forbade company-dominated unions. The Taft-Hartley Act continued that provision without change.

This was one of the most important provisions of the Wagner Act in the early days. I remember when I first went with the Board, probably half of my cases were trying to disestablish a companydominated union. After the Wagner Act had been held constitutional, it became popular to set up employee representation plans. They were used as an attempt to forestall a legitimate union from getting in. The Board, I think, made a remarkable record of disestablishing those types of plans to the extent that this provision has become. practically unused in the last 6 or 7 years.

The Wagner Act made it an unfair labor practice for an employer to discriminate against his employees because of union membership but in this provision the Wagner Act specifically permitted an exception, namely, the closed shop. The Taft-Hartley Act continued the ban on discrimination again employees for union activities but the exception was to permit a union-shop contract.

Senator TAFT. You mean the ban on discrimination by employers against employees for union activities?

Mr. SHROYER. Yes. I think I might stop here to explain a little about this word "discrimination."

A typical case occurred when an employee joined a union or when he became a leader in a union in an organizational attempt, and the employer would fire that man. This is probably the most important provision, or has more teeth in it, than any other provision in either the Wagner Act or Taft-Hartley Act, because here an employer can be assessed back pay, and sometimes it amounts to a lot of money.

If the Board finds that an employer has discriminated against a man because of union activities—and it works both ways, he cannot discriminate either to promote the union or to discourage union membership—an employer has to reinstate the man and pay him back pay for all of the time he has lost.

I remember again in your State, Senator Neely, one of my first cases involved the Wallace Co., and I think at one time the back pay amounted to almost $1 million since there had been 50 people discriminated against because they had joined the union.

The difference between a closed-shop contract permitted by the Wagner Act and a union-shop contract permitted by the Taft-Hartley Act may be simply stated. Under a closed shop contract all employees must be members of the union before they may be hired by an employer. If membership in the union is lost for any reason whatsoever, the employer must discharge the employee who has lost his membership. Under a union-shop contract, the employer is free to select his employees without reference to the union.

81346-53-pt. 1—————3

Those new employees must join the union, however, within 30 days from the date of their employment. If the union refuses to admit the employee to membership, or if the union expels a member for any reason other than nonpayment of dues and initiation fees, the unionshop contract does not apply, the union may not require the employer to discharge, and the employee continues on his job.

What was Congress concerned about here? Back in 1947 the committee heard considerable evidence of closed unions, unions which, for some reason or other, were not keeping their membership open. I remember one case, I think it was the Wire Weavers Union. It had limited its new membership to legitimate male descendants of union members. That is a highly unusual case, but I think there was evidence that the Maritime unions, because they felt they had all of the people needed to man the ships, had not accepted any new members since the close of the war.

Then there were situations where a union, and these were few, refused to take colored people into membership, or if they did take them, they placed them in second-class membership. The Taft-Hartley provisions protects those people because they were not admitted on the same terms and conditions as existing membership.

Then there was the "permit system." There had been a lot of evidence developed by the Truman committee of the permit system that had been used on Government contracts. That worked about like this: A new man would not be given membership in the union, but to get work in a plant he first had to get a permit from the union agent. That sometimes cost him three or four or five hundred dollars. Then the real racket developed when the union agent would make a deal with some foreman inside to fire this fellow who had bought his permit, in order that they could sell that permit to someone else.

Under the Taft-Hartley amendments this would not be possible because the employer hires him, and if the union refuses to give him membership he goes on working anyhow.

Then there was another case which I think influenced the committee probably more than anything else, and that was the DeMille case. Mr. DeMille came here and told the committee about his experience on the Lux Theater program. As I remember it, the union had assessed a $1 fee to fight a closed-shop ban in California, and Mr. DeMille was against the closed shop and he refused to pay the $1. As a result of such refusal he lost his membership in the union and since a closedshop condition prevailed in that industry, he was taken off the air. That could not happen under the Taft-Hartley Act.

The Taft-Hartley provision does little more than to answer "the free-rider argument.

Senator HILL. What is that?

Mr. SHROYER. That is "the free-rider_argument." For example, suppose you and I are working on a production line and I belong to the union and I am paying my union dues, and you are getting the benefits obtained by the union, but do not belong to the union and do not pay any dues. The unions, I think probably rightfully, feel that you ought to be paying your share for obtaining those benefits.

When this committee was considering the labor law in 1947, there had been a Canadian court decision involving the Ford Motor Co. and I think the Canadians came up with the device of requiring universal checkoff; everybody had to pay dues, but he did not have to join

the union. I think the Taft-Hartley law comes pretty close to that Canadian court decision. It permits the union to require all employees to bear their share of the cost of the benefits obtained by the union.

Section 9 (e) (1) provides another protection to employees. They may obtain an election to revoke the union's authority to enter into a union-shop contract upon a petition supported by 30 percent of the employees. In addition, section 14 (b) provides that nothing in the Taft-Hartley Act shall be construed to authorize union-shop contracts in States which prohibit compulsory union membership.

The deauthorization election is the amendment that Senator Taft talked about and I think it is the only amendment that has been passed. Back in the law, as originally written, you had to have a vote of the employees to determine whether or not they could have any type of union security or compulsory membership. The vote had to be by a majority of the employees to be effected, and not by a majority of those voting. That provision was taken out last year, but there was retained in the law the right to get an election to get rid of a union-shop

contract.

Senator HILL. How often may that election be held as the law is now written, Mr. Shroyer?

Mr. SHROYER. It can only be held once a year, Senator Hill.

There was a very interesting case that the Board decided last month right on that point. The Board decided that immediately after an election in which the employees voted not to have a union shop, the union shop must be canceled.

Chairman Herzog, when he testified before the House committee, said he wanted congressional instructions as to whether the Board was right or whether the union shop should be allowed to continue until the end of the contract period.

Senator HILL. In other words, the contract had some time yet to run. Mr. SHROYER. It was about in the middle of the contract, sir. Senator TAFT. Should we deal with that question by statute? Suppose you vote out a union-shop contract, how soon can the officers of the union make another one? Should that be specified?

Mr. SHROYER. It is not too clear under present law. I assume when they make the next contract they could probably include the union-shop again. If you agree with the Board's decision you can leave the law the way it is. If you do not agree with the Board's decision, and say the union shop should continue until the end of the contract, you have to change the law.

Senator TAFT. The effect of the amendment we passed last year was that the officers of the union can make a union-shop contract without any reference to the union membership.

Mr. SHROYER. That is correct.

In addition to providing relief for unfair labor practices, the Wagner Act provided a mechanism under which a union might demonstrate its majority status in an election conducted by the Board. The Wagner Act provided that the union might petition for an election, whereupon the Board would determine the appropriate unit, hold the election, and certify the results to the employer and the union. The Taft-Hartley Act continued this mechanism and extended it to permit employees also to petition for an election to get rid of the union

« PreviousContinue »