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.

81846-53-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

which, for some reason or other, had become distasteful to them. Under the Wagner Act, there was no mechanism provided to accomplish this purpose. The only relief available to employees was by changing their affiliation to another union and having that union petition for an election. The Taft-Hartley Act also permits an employer to petition for an election.

Of course, there was nothing in the Wagner Act that prevented the Board from allowing these types of elections or petitions. It was by Board rules and regulations, and I can say from my own experience in those days that I found it a little bit difficult to tell employees that the only way they could get rid of a union was to get another union. That was not what they wanted. I also found it difficult to tell the employer, when he came in and said that the union no longer represented the majority of his employees, that the only thing he could do was to refuse to bargain and subject himself to an unfair labor-practice case. Then, in the unfair labor-practice case, if the Board decided the union no longer had the majority, he had made the right decision, but he had to go through that in order to get rid of the union.

Senator TAFT. Not only to get rid of the union, but if two different unions each claimed the right to represent the men, he had no recourse and he had to make the decision at his peril.

Mr. SHROYER. That is not exactly correct. It was in the early days of the Board, but toward the end the Board did permit a petition by an employer where he was confronted with a demand from conflicting unions, and he can do that under the Taft-Hartley Act. He could do that at the end of the Wagner Act days.

Senator HILL. Under the Taft-Hartley Act, how often can an employer petition for an election? Is there any limit there as to how many times he can petition for an election?

Mr. SHROYER. The one year rule applies in all cases. However, let us say that a plantwide production and maintenance union came in and petitioned for an election and they had an election and they lost. Then, Senator Hill, I believe that the Board has held that a craft union might, during the same year, come in and petition for an election and obtain it.

The Taft-Hartley Act added four unfair labor practices which might be committed by a union, namely: Secondary boycotts, jurisdictional strikes, featherbedding, and excessive fees in union-shop cases. I suppose there are really five because of 8 (b) (2) but that is really a part of the ban on the closed shop.

Referring first to the excessive fees in union-shop cases, this provision has had little use in practice. It was added to the law in 1947, I believe, because Congress wanted to insure, insofar as possible, the right of workmen to seek, obtain, and retain the type of employment which they preferred, Protection against excessive initiation fees was one matter not covered by the proviso to section 8 (a) (3). Section 8 (a) (3) requires uniformity in initiation fees; section 8 (b) (5) requires that such fees not be excessive.

The featherbedding provision has, in my opinion, now been rendered almost a complete nullity by recent decisions of the Supreme Court in the bogus type and musicians cases. As the provision was originally stated in the 1947 House bill, featherbedding was defined to include five specified types of situations and was made illegal. The

provision was watered down by the conferees, as I remember it, because they believed that there might be situations in which giving an employer the complete right to determine the number of men needed for a given job might prevent a union from protecting its membership in the interests of health and safety.

I was interested a couple of weeks ago when ex-board Member Reynolds testified before the House committee. He made the suggestion that the committee write into the Taft-Hartley ban on featherbedding the words "work not desired."

In my opinion, that is exactly what we were confronted with in 1947, because it would be leaving it up to the employer to say whether he desired the work. There might be situations, like for example, where the union might think that as a safety measure there was need for two watchmen at a mine shaft or something of that nature, and to make it an unfair labor practice for a union to assist on it, I think, would be depriving the union of its duty to protect the interests of its members in health and safety.

It was also argued in 1947 that it would be an almost impossible task for a board or a court to consider varied situations in hundreds of different industries and decide that 4 men, for example, are all right, but to insist on 6 men for a given job is "featherbedding."

As I look at it, this committee is right back where it was in 1947 with this featherbedding ban. There is a bill over in the House by Congressman Kearns that uses the words "necessary or required." I think the use of those words would leave it up to the Board to decide in each instance whether this was really featherbedding, or something that the union had a right to ask for. I personally see no alternative but to give to somebody the right to determine what is featherbedding.

The secondary-boycott provisions of the law are not easily understood. I am informed that many witnesses have requested time to testify on these provisions, and I would prefer to leave extended discussion on this point to those better qualified that I to discuss them. Briefly stated, it was the purpose of these provisions to provide relief for that innocent secondary employer caught in a dispute between a primary employer and the primary employer's union. Congress wished to protect that secondary employer who had no quarrel with his employees but was made a victim of someone else's quarrel. He might be a supplier of raw materials to the primary employer and the union wished to cut off the latter's supplies in order to make the strike effective against him. Or the secondary employer might be a customer of the primary employer and the union wished to make the strike effective against the primary employer by cutting off his sales. In 1947 this committee heard considerable testimony about the socalled monopoly boycott conducted by local No. 3 of the IBEW in New York City. Local 3's electrician members refused to install electrical products of manufacturers employing electricians who were members of some labor organization other than local No. 3. In other words, they would not even install electrical products made by another local of IBEW. They wanted a complete monopoly of the electrical manufacturing and installation work in New York City.

There was also much testimony of the organizational boycott being conducted particularly by locals of the teamsters' union. Instead of attempting to persuade the employees of employer A to join it, the