Senator DOUGLAS. Of course, the secondary boycott is also defined as existing where parties other than those immediately involved in the dispute withhold their custom or their labor. A good many courts have held that the Buck Stove & Range Co. case that I described was a secondary boycott and therefore punishable. You apparently say that is all right.

Mr. DOHERTY. No. I grant, Senator, that it sometimes is difficult to draw the line where the primary consumer boycott stops and the secondary aspect starts, but I think that it is impossible ever to draw laws that will take care of every twilight-zone case. If one recognizes the clear-cut secondary boycott in the form of the unfair list as I have used it, I see no reason why language cannot be developed that applies clearly to that kind of thing and clearly talks about the secondary boycott through the unfair list where the neutral party itself is labeled unfair; where they go beyond the step of merely informing this party and letting that person make the decision. I am not trying to draw that delicate line which we have been trying to draw for 50 or 60 years in boycotts. I am well aware that it is a difficult thing to do.

The fifth point I would like to mention, I think has become important since 1947. That is the agreement between a union and an employer to circumvent and bypass the actual prohibitions of 8 (b) (4). We know back historically the Senator referred to the Buck Stove case, and, as all Congress is well aware, the Allen-Bradley case is the famous instance where the union and management agreed together to restrict the flow of trade. We have, however, gotten away from that in the Labor-Management Relations Act; at least we thought we did. Then along came the Dierks case which is referred to in the text, and there have been others, in which the board has in a sense said that if the employer acquiesced and agreed to this thing, then there was not the violation under 8 (b) (4). In other words, despite the intent of Congress, I believe the Board has created a new freeway for secondary boycotts riding on labor-management agreement.

To me, we are resorting to generalities and philosophy. If something is basically bad and proscribed by law, I do not believe that agreements by parties should sanctify that action. If we believe, in other words, that it is bad fundamentally and therefore should be prohibited, fundamentally, that a union should impose upon the employer the prerequisite that he cannot deal with a nonunion firm as a means of coercing the nonunion firm into the union, then I say that an agreement between that secondary employer and the union is bad also.

To meet these problems squarely, I have presented language in the main body of my text-I believe on pages 24 and 25-which I will not go into now, which seeks to do two things: First, to cover threats of reprisal, the use of unfair lists and related acts of coercion against management, where the purpose is to create secondary-boycott damage; and, secondly, to provide, as I have in my second proviso, that agreements between labor and management do not sanctify an otherwise secondary-boycott practice.

If the thing about which labor and management have agreed is in itself proscribed under the secondary boycott provisions, the agreement itself does not make that a fair labor practice.

Senator DOUGLAS. May I ask this question?
Mr. DOHERTY. Surely. In fact, I welcome it.

Senator DOUGLAS. Would you rule out the boycott on struck work? Mr. DOHERTY. I shall be perfectly willing to admit that that is one secondary boycott which I think has a certain amount of validity, and I think that language can be constructed which would properly cover that. In view of my limited time, I will refer back to my pages 24 and 25. In item (a), "where an object thereof is (a) * ***"there is no question but that that proviso or exception would, through its language, take care of situations of a definíte struck-work type.

I believe Senator Taft has a proposed amendment designed to take care of that type of situation. Far be it from me to disagree with Senator Taft, but I do not think that the wording as proposed would adequately cover the situations in full, because, while I do not recall the exact words, it would not take care of a situation of this type, a very simple situation: Suppose there were 10 trucking companies in the same community. One company is struck. We know that a good part of the trucking business is not on a definite contract basis from day to day. So one company, is struck. Therefore, that does not affect the volume of goods moved in that community. The remaining nine therefore get all the business. I presume the unions would very much like to have them continue getting all the business. That is bringing economic pressure.

But theoretically, you might argue that some of the business that each of the 9 or some of the 9 were getting was business which presumably, not because of contract but in the normal process of operations, would have gone to the 10th or struck company. I do not believe Senator Taft's words quite take care of that situation. I think that language can be written. It think it has to be somewhat based upon that kind of language, but with the concept of "but for the existence of a current strike” in there.

We have wording something of this sort: "That nothing herein shall be construed to make unlawful the refusal by employees or the inducement thereof to perform work which their employer is handling on a contract basis with another employer whose employees would have performed the work but for the existence of a strike.'

You see, secondly, I do not believe that the struck-work concept should be applied to definite contractual relationships. Company A and Company B-Company A has a definite contract with Company B to produce 500 units per week of a certain product. It is an existing contract. The employees in Company A are not producing that, even though the goods are being produced for Company A. I do not believe the struck-work concept should apply to that contract. It should be applied only if they are then adding work to B which otherwise would have been produced by the employees of Company A.

That is the kind of shaded difference that I think is necessary, the "but for" concept.

Senator PURTELL. You are now answering my original question. Therefore, you have no objection at all to the boycott of a plant, let us say, in Detroit that was producing dies for an eastern concern, let us say a drop-forge plant, which was on strike, which plant sent the dies to Detroit or some other place to be made. Do I understand you to say that you feel in that case that boycott would be justified?

Mr. DOHERTY. I say, first, Senator, that if there is any justification for a secondary boycott action-I am trying to look at this thing

objectively-I think it is almost exclusively within the area of struck work.

I think, however, that that concept of struck work cannot be applied to unionism, per se, but to the individual union quite obviously. I think there is some, shall I say, sex appeal to the argument that workers in Company A and Company B both belong to the same union. and maybe the same local; Company A is struck, so all of its production goes over to Company B, and the fellow members produce the work that otherwise would have been produced by Company A.

To get back to your principle, it would have to do with two things, in my opinion: One, do you have the same union involved; and, secondly, is it a case of actually transferring work which otherwise would have been produced by the employees during the period that they were on strike?

Senator PURTELL. In most of those cases it would, of course, be what would have been produced in the struck shop.

Mr. DOHERTY. I made the qualification earlier that the struck-work concept should not be applied to the production of work or services that are already under contract, because then that is not struck work, in my opinion, if a contract exists for the performance of this work or services, as we commonly have.

Senator DOUGLAS. May I ask a question?

The CHAIRMAN. I just want to call attention to the fact that we are limiting the witnesses to 30 minutes each for this afternoon, and I am wondering if it would not be wiser for the witness to complete his points, and then devote such time as we have remaining for questions. His time is already up, but I will give him some more time because we have interrupted him.

Mr. DOHERTY. I will not take much longer, if you will permit me to go through, although I welcome the interruptions, I assure you.

The CHAIRMAN. I think it helps clarify it to have the interruptions. Mr. DOHERTY. May I hasten through and finish this up in 5 or 6 minutes here.

In conjunction with my recommendations, I still believe sincerely and fundamentally, on the basis of objectivity-of course, we all believe objectively-that we still must maintain the principle of the injunctive approach to the secondary boycotts, and also damages. When we get into the element of real secondary boycotts, we are not very far away from the basic principles of antitrust.

With regard to representation and elections, I have a proposal which I shall short-circuit in view of time, but I do not wish to shortcircuit in view of its importance. In my honest opinion, it is one of the most important proposals I have to make. It briefly boils down to this: Much of the secondary boycott action, a lot of the strife, certainly the recognition strife, a lot of the industrial strife which we have in the United States, among the small companies particularly, arises out of the fact that unions are seeking to get voluntary recognition without Board action. The law clearly spells out in minute detail the provisions for democratic procedures of certification through election. In many of these instances with the smaller companies, the unions do not have a full majority, so they use the coercive pressure of strikes. Therefore, it seems to me that using the principle we do in all our political areas. in our fraternal and social life, of determin

ing majority choice, we should provide that union representation should be based solely upon NLRB certification growing out a secretballot election.

On page 30 of my main statement I have suggested means of accomplishing this objective.

This proposal, I believe, is completely democratic. It would curb strikes for recognition; it would make for industrial peace; and it is completely compatible with the entire process of NLRB activities as we have established them.

In other words, briefly, it would make it an unfair labor practice for a union to demand recognition of a voluntary nature. This is particularly important for small employers who cannot stand these pressures and cannot stand recognition strikes.

I know you have before your committee a proposed bill to make it an unfair labor practice to engage in a recognition strike. I think that would be one approach. I think the sounder and more democratic approach is the one that I am suggesting.

With regard to featherbedding, I think I can sum it up in this way: The decision of the NLRB in the Gamble Enterprises case and the Supreme Court decision make this completely meaningless. I do not blame the Board and I do not blame the Supreme Court. I know and you gentlmen know that 8 (b) (6) was strictly a compromise effort on the part of Congress. The Board has clearly shown us by its decisions that the compromise effort was so dubious in content that it is pretty difficult to apply. I have always believed that. Therefore, I believe that it is either a case of discarding completely the featherbedding thing, which would be a very serious thing, or else getting language which really meant something which would guide the Board.

I am not talking about language that would put punitive restraints upon normal union activities. I am talking about restraints against genuine exactions designed to cover work that is genuinely and fundamentally not rendered at all.

With regard to freedom of speech, you have before you in Senator Taft's bill an item that would make it necessary for the Board to apply the principles of freedom of speech, so well expressed in the LMRA, to representation cases. In our presentation, on page 28, I believe, we have language which differs somewhat from Senator Taft's language, aimed in the same direction.

*** nor shall such expression constitute grounds for setting aside any election held pursuant to any proceeding arising under 9 (c) of this act.

There is one thing, however, that still is not completely clear, and I refer to the situation as it arose in the Bonwit Teller case. I believe that when the Board gets into the position where it is talking about equal opportunities for expressing opinions on the part of union and management, they are getting into the area of mechanism of free speech. If we start to regulate the mechanics and the methods of free speech, then I am afraid we are going to get pretty close into the realm of regulating free speech itself, even though it be inadvertent.

With regard to health, welfare, and pension plans, I wish I had a lot of time. I was very much interested, as a member of the Wage Stabilization Board, in these things. Probably it is not a nice thing to say, but I believe the Wage Stabilization Board has been responsible for the laying of a foundation for a nationwide wave of health, welfare, and pension plans of a type that may not necessarily be sound.

I am not arguing against health and welfare plans. I believe, personally, that it is increasingly desirable that within employer-employee relations we develop more and more the health and welfare concept as against the Government's taking care of these things. But it does mean that today is the time to lay policy, not to protect the employer but to protect the worker. Hundreds of millions, yes, billions of dollars, are accumulated in funds designed to give pension retirements and health and welfare insurance to the workers, and it is imperative, I believe, that we subject these plans to the same kind of regulations and rules, financial administration, that apply to life-insurance companies and banks in the handling of similar funds.

Senator Taft has a recommendation. I do not agree with putting it in the hands of the Secretary of Labor. I think there are many provisions in that recommendation that are sound. I do think, however, we need to go one step further, and I urge that you gentlemen give serious consideration to establishing the responsibility of trusteeship over these funds. I emphasize again that you are not doing a favor. for the employer. You are doing a favor for the millions of workers who in the next 10 or 20 years are going to be covered by union-administered funds or joint union-management-administered funds. Our proposal is this

The CHAIRMAN. Would you suggest making all these programs uniform, then, nationwide, without flexibility?

Mr. DOHERTY. No. We have a very simple proposal-very complex, I suppose, in terms of language. That is this: One, so long as these insurance funds and these pension funds are underwritten by private insurance companies and banks, I have no worry about them, because we have State laws dealing with the administration of such things. But where they are underwritten by unions or jointly by unions and management, we should some way or other find language to apply the same fiscal qualification to the administration of these funds that are applied to the insurance companies and banks in the handling of such funds.

I do not believe the Secretary of Labor has the facilities to do that kind of fiscal job, and that is what I am talking about.

With regard to national-emergency disputes, gentlemen, I would like to sit here and talk with you for a long time, because I have that natural pride of authorship in the thing that I am presenting to you. This has been a personal concept of mine-it is not a presentation of the National Association of Radio and Television Broadcasts-for a long time, because, like Senator Douglas over here, I have had very fundamental interest in labor relations from the academic point of view. I, too, used to be an economist.

But more specifically, for the past several years, and particularly during my period on the Wage Stabilization Board, I became increasingly concerned with the question of national-emergency disputes. I believe that the Taft-Hartley provisions have worked well when they have been permitted to work. I believe that there are some things, some loopholes, that need blocking up here.

There is no terminal point to some of these things. Furthermore, I would like to take the greatest burden off the President and put it where it belongs, and I believe that is the courts.

Therefore, in view of the limited time, I shall not trespass upon your good nature by going over my proposal, but I earnestly and sin