Furthermore, the definition should reaffirm what Congress intended in the national emergency strike provisions of the Taft-Hartley Act; namely, that the only strikes covered are those which: (1) are in an industry or substantial part thereof and (2) involve a serious threat to the security of the Nation. This would exclude purely local strikes.

We recognize that emergency boards sometimes serve a useful purpose in labor disputes, when they are empowered to make recommendations for settlement, as they would be under this bill. However, there may be situations in which one party or the other will believe that a Board of Inquiry will make recommendations favorable to its side of the dispute and will therefore refrain from bargaining if it knows that a Board of Inquiry will be appointed.

S. 1075

Porvisions. The provisions of this bill are the same as those of S. 1026 except that this bill gives the Emergency Board 60 days in which to report instead of 30 and except that it provides that after the President issues a proclamation, and until the Emergency Board reports, "the parties to the dispute shall refrain from engaging in a strike or lockout." The bill also specifically provides that the President shall report immediately to Congress if a strike occurs either after the Emergency Board report or "in violation of" the section just referred to before the Board has made its report.

Comment. Our comments with regard to S. 1026 are equally applicable to this bill. In addition the provision of this bill that pending a Board report "the parties to the dispute shall refrain from strike or lockout" may be meant to lay the basis for an injunction. If so, this provision is, of course, subject to all of our general reservations with regard to injunctions.

S. 1264

Provision 1.-Specifically permits the National Labor Relations Board to decline to assert jurisdiction "over any labor dispute" where in the Board's opinion the effect on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction.

Comment. The Board has this discretion now, always has had it, and exercises this discretion.

Provision 2.-Nothing in the National Act shall prevent "any agency, or the courts," of any State from assuming jurisdiction over labor disputes over which the Board declines in its discretion to exercise jurisdiction.

Comment. This provision is not objectionable if coupled with a corollary provision that when the Board assumes jurisdiction over any labor dispute, jurisdiction shall not be asserted by any agency or the courts of any State.

Provision 3.-Authorizes the Board by agreement to cede jurisdiction to State agencies even with respect to controversies substantially affecting commerce, and repeals the limitation in section 10 (a) of the present act that such cessions of jurisdiction shall not be made if the State law is inconsistent with the Federal act.

Comment.-A general authorization to the National Board to cede jurisdiction to State agencies, without any standard or guide or limitation seems undesirable. It could result in a Board friendly to labor ceding jurisdiction to those States with laws favorable to labor while refusing to cede to States with antilabor laws, and to reverse conduct by an antilabor Board. On the other hand, if liberal cessions of jurisdiction were made without regard to the content of State laws, a chaotic situation would result.

We believe that the only disputes over which the State boards should have jurisdiction are those not affecting commerce or those where the effect on commerce is so insubstantial that the National Board declines in its discretion to assume jurisdiction.

S. 1146

HUMPHREY AMENDMENTS

1. Provision.-Provide a pool of legal assistants to trial examiners. Comment. This would be a very worthwhile improvement. The delay attendant upon the issuance of examiners' reports is one of the principal bottlenecks in the handling of unfair-labor-practice cases. Undoubtedly the 2-month period which it now takes on the average to get out an examiner's intermediate report could be shortened if the examiners had legal assistants. Furthermore, the Board's appropriation should be large enough to enable it to hire additional trial examiners to clean up the blacklog and process cases more speedily.

2. Provision.-Provide that the legal assistants to Board members should not necessarily be assigned to particular members but shall constitute a pool available to perform necessary services.

Comment. The requirement of Taft-Hartley that there be a separate staff of assistants for each Board member has resulted in the creation of 5 separate legal staffs consisting of some 15 to 19 lawyers each. It would appear that more efficient use of personnel could be obtained if the Board was free to use all of the legal assistants as a pool.

3. Provision. To permit prehearing elections in representation cases and to permit the Board to determine, where appropriate, the existence of a majority in a representation case by some method other than an election.

Comment. Both of these changes are highly desirable. We have repeatedly expressed our belief that if prehearing elections were permitted as under the Wagner Act substantial time could be saved in representation cases. It is likewise true that speed and efficiency would be promoted by permitting the Board, where appropriate, to use a card check or some other informal method of determining whether a union represents a majority, instead of insisting, as under the Taft-Hartley Act, on an election as the only method. We have previously pointed out that, in our opinion a card check should be employed only by agreement of the parties.

4. Provision.-Provide that NLRB regional directors shall have final authority to decide representation cases, subject to review in the discretion of the Board. Comment. The problem of speeding up representation cases is limited, of course, to those cases that are contested, where one party desires to delay the proceedings. In these contested cases the party seeking delay would, presumably, ask for Board review in every instance. Thus whether the proposed change would affect any appreciable saving of time would depend on how the Board administered it. If the Board were fairly strict about granting review and disposed of most cases by denying the application for review. a considerable saving of time would result. On the other hand, if the Board granted applications for review in most cases the result would be simply to institute an additional step in representation cases with consequent delay and inefficiency.

5. Provision.-Authorize the Board to issue a decision in an unfair labor practice case without a hearing if the parties waive their right to hearing and agree to decision on stipulated facts.

Comment. This proposal seems desirable although it probably would not be much used.

6. Provision.-Establish a Court of Labor Appeals, made up from a roster of regularly appointed Federal circuit and district judges, to take over the present jurisdiction of the courts of appeals in the review and enforcement of unfair labor practice cases. This proposal is modeled closely on the Emergency Court of Appeals which was established to review price-control orders.

Comment. This proposal seems desirable. The Emergency Court of Appeals disposed of its cases in about half the time normally required for decision by the regular courts of appeals. Expedition of court decision is highly desirable since this is one of the principal delays in unfair labor practice cases.

In addition, it is to be expected that the members of a Labor Court of Appeals would develop greater expertness in labor-relations issues than can be expected of court of appeals judges generally. Our endorsement of this proposal is because of its limited character, creating, as it does, a court of appeals for review and enforcement of labor Board decisions only. We are vigorously opposed to the establishment of a labor court with general jurisdiction over all labor cases because of our belief that this would lead toward the direction of compulsory arbitration of labor disputes, which we oppose in any form or under any circumstances.

S. 1161

THE GOLDWATER BILL

S. 1161, introduced by Senator Goldwater, contains a seemingly simple proposal for amendment of the Taft-Hartley Act which would, if enacted, have farreaching and altogether undesirable effects. S. 1161 would amend section 14 of the act by adding a provision that nothing in the act should be construed to nullify the power of the States to regulate or qualify the right of employees to strike or picket.

This amendment would nullify a whole line of Supreme Court decisions both under the Wagner Act and the Taft-Hartley Act in order to carry out the vicious purpose already embodied in section 14 (b) of forbidding States from giving

greater protection to labor than is provided for in the Taft-Hartley Act but giving them carte blanche to impose more restrictive provisions than are contained in that act.

Furthermore, through our entire Federal system of Government is the concept that the laws of the United States shall be the supreme law of the land. Activity which Congress has protected cannot be forbidden or limited by the States. To permit them so to do would be to undermine this basic constitutional premise.

This principle was first applied to labor relations matters in Hill v. Florida (325 U. S. 538), where the Supreme Court held that the States could not place impediments upon employees in the free and peaceful exercise of their federally protected right of self-organization. A latter case in this line was Bethlehem Steel Co. v. New York State Labor Relations Board (330 U. S. 767), which held that a State labor relations board could not certify collective bargaining representatives in a unit different from that determined by the National Labor Relations Board. Similar cases arose after the passage of the Taft-Hartley Act. Many of them, however, related to provisions which were carried over intact from the Wagner Act. Thus, UAW-CIO v. O'Brien (339 U. S. 454), held that a Michigan statute which limited the right to conduct peaceful strikes for lawful purposes was invalid, since such activity was protected concerted activity under the terms of the Federal statute.

The effect of S. 1161 would be to overrule all these and many other decisions which have held that the congressional determination as to what is proper and improper activity in the labor-relations field cannot be subverted by State legislation which imposes restrictions on the rights which Congress has granted. The proposal cannot be supported on any theory of States rights. S. 1161 would not permit States to make lawful conduct which Congress has declared to be unlawful. Unfair labor practices by unions would continue to be violations of the Federal act, irrespective of what State laws might provide. But action which Congress has declared to be lawful and which it has affirmatively provided protection for could be regulated or qualified by the States.

The States would be put on a one-way street. They could impose additional regulations or qualifications upon labor's rights, without any counterbalancing freedom to enlarge those rights or to impose those regulations upon employers' rights in labor-relations matters.

Nor would it be any answer to this criticism to enlarge the grant of authority to the States so as to permit two-way action, for if this were done the National Labor Relations Act would become meaningless and the Federal Government would virtually abdicate its power over interstate commerce by permitting the States to override the decision of Congress whenever they deemed it appropriate to do so.

If this Congress should determine to legislate with respect to the FederalState relationship in labor matters, it seems to me that it would be far more appropriate to enact provisions like those in H. R. 3361, introduced in the House of Representatives by Representative Bailey. This bill in substance provides that no court of any State shall "issue any process, pursuant to the common law, statute, or otherwise, inconsistent with the provisions of this act or to enforce such provisions." H. R. 3361 would not, I think, materially change the substantive law with respect to the Federal-State relationship. It would make clear what the courts have already determined, that is, that the States are not given power to enforce the National Labor Relations Act, since enforcement is vested exclusively in the National Labor Relations Board and the Federal courts and that the States are likewise forbidden to issue injunctions or other process which is inconsistent or contradictory to the provisions of the Federal act.

Too often we have been faced with ex parte restraining orders of the type now forbidden to Federal courts by the Norris-LaGuardia Act, restraining legitimate, peaceful, and, indeed, federally protected labor activity. Such restraining orders are issued without notice, are enforced summarily by contempt proceedings and are used as an instrument to deny to workers the rights which are expressly guaranteed to them by the provisions of the Federal act.

Under the law as it now stands, I think it is clear that State courts are in fact acting without jurisdiction in issuing such orders. The absence of jurisdiction, however, rests on a line of Supreme Court cases interpreting the Federal act rather than a specific provision in the statute. By the time a hearing can be obtained or an appeal taken and this point conclusively demonstrated, the State court action has already run its full course and the strike or other activity which was enjoined has been defeated. Therefore, it may be of considerable utility to make express what is now implicit in the National Labor

Relations Act. I therefore would urge favorable consideration of proposals such as those contained in H. R. 3361.

Before leaving this subject, I want to make clear that I am not in any way suggesting that Congress has prevented or should prevent the States from exercising their legitimate police powers to protect persons or private property from violence. The line of cases in the Supreme Court to which I earlier referred makes it clear that the Federal regulation of labor relations does not prohibit the States from subjecting violence to State police control. Protection of the public from violence, trespass on private property and other similar violations of traditional police regulations have always been regarded as reserved to the States. Fansteel Metallurgical Corp. v. N. L. R. B. (306 U. S. 240). Allen Bradley Local v. Wisconsin Employment Relations Board (315 U. S. 740). The difference is that in those cases the States were exercising traditional police powers applicable to all persons, not establishing separate regulations embodying the States' conception of what constitutes proper or improper labor relations practice. The former field, I believe, is properly left to the States and to the States alone.

For that reason we have suggested that Congress eliminate the provisions of section 8 (b) (1) of the Taft-Hartley Act, which seem to us to interfere with the proper sphere of State activity. The latter field-the statement of the respective rights of employees, employers, and unions with respect to collective bargaining and the collective bargaining relationship in industries affecting commerce is dealt with by the Federal Government, to the exclusion of the States. For these reasons we strongly oppose Senator Goldwater's bill.

CONCLUSION

This concludes my comments on some of the proposals for Taft-Hartley amendment which are pending before this committee.

I realize, of course, that there are other such proposals with which I have not dealt, and I will be glad to comment on any of them as to which the committee may desire our views.

I thank the committee for this opportunity to appear before it.

Mr. GOLDBERG. Without further ado, I would like to turn to the specific provisions of the law. I think enough has been said in general to make known our overall position and I think now we might make better progress if I dealt with specific provisions.

The CHAIRMAN. Are you going to deal with the comparative print? Mr. GOLDBERG. Yes; and then I will relate back to the comments I have made in my specific statement.

I think it not fruitful that I engage myself in any general comment about the general findings and policies of the act, but rather turn specifically to various sections of the act, the operative sections. So immediately I am going to ask you to turn to page 5, where the definition sections of the act are contained and deal with section 2 (2) of the act.

Taft-Hartley made three changes in the Wagner Act's definition of employers. The first change it made, as is apparent from your print, was that it dropped the inclusion of persons acting "in the interest of" an employer and substituted for it persons acting “as an agent of" an employer. The second change it made was that it excluded wholly owned Government corporations and Federal reserve banks. Third, it excluded nonprofit hospitals.

Frankly, I dont think these are very important changes, and I don't want to spend much time with them, but I want to raise some questions. The first change that was made was to drop the words "in the interest of" an employer and to substitute the words "acting as an agent of" an employer. Under the Wagner Act, in the early days the Board gave that a fairly broad construction, but in the late days before the Taft-Hartley Act the Board required under its language

"acting in the interest of" an employer really to mean that persons acting in the interest of the employer should have a really substantial relationship with an employer in fact; not a tenuous relationship but a substantial one.

The Supreme Court in dealing with this subject in the International Association of Machinists case (311 U. S. 72) said of the whole act, and I want to quote the Supreme Court:

We are dealing here not with private rights (Amalgamated Utility Workers v. Consolidated Edison Co. (309 U. S. 261), nor with technical concepts pertinent to an employer's legal responsibility to third persons for acts of his servants, but a clear legislative policy to free the collective-bargaining process from all taint of an employer's compulsion, domination, or influence.

I don't think actually that this Taft-Hartley change has given an employer a larger area of freedom to engage in antiunion practices than he had before, but I think it has invited some people to think that they have. I think that the change was not necessary. I think that Board and Court doctrine protected the employer from having attributed to him acts that he was not really responsible for.

One thing I think we would all agree upon: We don't want a repetition of many of the practices that prevailed and that this committee in the days of its La Follette subcommittee investigated; of having citizens' groups and other groups act in the interest of employers in engaging in antiunion activity. I don't think it was the desire of the draftsmen of Taft-Hartley to encourage that development.

The only purpose in making the change was perhaps to restrict liability. I don't think the change was essential. I don't think it has accomplished a great deal. I merely point it out in passing to show that this salutary doctrine of the Supreme Court, I think, is sound. We are not dealing with technical concepts in this field. We are dealing with the substantial problem of having the operation of collective bargaining free from coercion and intimidation. I don't want to take time with that because I think it is not important.

I think the same about Federal Reserve banks and about nonprofit hospitals. The Federal Reserve bank is not a bank. I think that is clear to the members of the committee who are on the Banking and Currency Committee, as well as to the Members of the Senate in general. Banks are subject to provisions of the Taft-Hartley Act in general. I don't know why the Federal Reserve bank should be exempt. I don't know that any problems have arisen with respect to Federal Reserve banks, although it is not very important.

Senator TAFT. I think the argument was made that in time of financial crisis or otherwise, banks did for all practical purposes act as agents of the Government. They issue the currency of the Government. They therefore were an essential public service. That is the argument that I remember. I don't think there was any great issue about it.

Mr. GOLDBERG. I don't think so, either, Senator, and I don't want to take time to debate it. I think in principle they are private banks. We feel the same way about nonprofit hospitals. I don't like to see disputes develop with respect to any type of hospitals. I think almost all hospitals are nonprofit in character. I don't know, however, why the employees there are not entitled to the protection of a statute which governs in the field of labor relations.