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Mr. Kearns. I was not here for all of the testimony, but I hope that you will collaborate with me by saying there wasn't any written agreement on this.

Mr. THOMPSON. I must say that I don't think that a written agreement is ever necessary among Members of Congress who are at least presumed to be honorable gentlemen.

Mr. PUCINSKI. Mr. Thompson, would it be your opinion that if you could not have received complete agreement among both sides on the conference committee, on this situs picketing, to correct this injustice in this particular session, would it be your opinion that you could have reached agreement on the rest of the bill pending before that conference committee?

Mr. THOMPSON. Mr. Pucinski, I don't think that there could be unanimous agreement on anything in that conference, but I think if I understand the import of your question, that had this been germane to the bill and had therefore we been able to keep it in the bill, a great majority of the conferees would have reversed the Denver Building Trades rule.

Mr. PUCINSKI. The purpose of my question was this: Both sides had made concessions in the conference committee.

Mr. THOMPSON. Yes, indeed.

Mr. PUCINSKI. And the bill was finally reported out and passed and it is now the law of the land.

Mr. THOMPSON. That is right.

Mr. PUCINSKI. Now, I wonder if that sort of agreement and concessions could have been reached in that committee if you had not originally had the agreement on this situs picketing, to correct it in this session.

Mr. THOMPSON. Mr. Pucinski, I understand your questions, but my opinion is that had no relief been granted to the building trades such as was granted in the form of the prehire agreements, and had no understanding been arrived at that there would be bipartisan support of reversal of Denver Building Trades, the issue would then have gone to the Senate for determination on the Senate floor, and no one knows what would have happened.

Mr. PUCINSKI. It is your opinion then that it is really incumbent upon this session of Congress to adopt this legislation to keep faith with the promises made in the conference report.

Mr. THOMPSON. I think it is incumbent upon those of us who made the agreements, and on the leadership level upon those who agreed to do everything possible to see that this is passed.

Of course, we were in no position to commit persons who were not with us or with whom we could not communicate. I think in addition, that there is a moral obligation on the part of the Congress to grant the relief which this bill calls for, and which is simply not an unusual relief.

Mr. PUCINSKI. Would it be finally your opinion that we ought to seek a closed rule when this goes to the Rules Committee so that we do not get into a prolonged debate on the floor when this legislation ultimately gets there?

Mr. THOMPSON. I think that a closed rule allowing sufficient time for full discussion of this legislation would be ideal. Otherwise, I think that there might be extraneous issues injected into it.

Mr. PUCINSKI. Thank you very much.

Mr. PERKINS. Are there any further questions?
Thank you very much for appearing.


THE STATE OF NEW JERSEY Mr. Chairman, I appear before the joint subcommittee in behalf of my bill H.R. 9070, which I introduced on September 3, 1959, the day on which the Senate passed the Labor-Management Reporting and Disclosure Act of 1959. The question of giving relief to the building trades unions, by reversing the Denver Building Trades rule, has been before the Congress for many years. I have supported this proposal because, it seemed to me, that it was matter of simple justice to give the building trades unions the same economic rights which are enjoyed by unions in other industries. During the consideration of the KennedyErvin bill by the House Committee on Education and Labor, I was a sponsor of the proposal to amend the National Labor Relations Act to permit common situs picketing in the building and construction industry. It will be recalled that the full committee acted favorably on the amendment and included it in the committee report designated as House Report No. 741, 86th Congress, 1st session. The matter was fully considered and the committee recognized the merits of the proposal.

The conference committee on the Labor-Management Reporting and Disclosure Act of 1959, of which I was a member, also devoted substantial time to discussion of this issue. There appeared to be a majority in favor of including the proposal to reverse the Denver Building Trades rule in the conference committee report, but it was omitted because we were advised that a point of order would be raised and sustained.

Although the question of situs picketing has been fully analyzed and considered by this committee, there are few points which I would like to emphasize.

The basic complaint of the building trades unions is that in the special facts of the building and construction industry their right to picket has been nullified. In the building trades, the different kinds of work are usually performed by different contractors. Therefore, under the statute, it has been held that picketing, because of a nonunion condition, in a particular trade, has an object, the inducement of one employer to cease doing business with another, although both are engaged on the same job. The Supreme Court held that the broad language of section 8(b) (4) (A) of the act required this result. Three dissenting judges thought otherwise. Justice Douglas stated the dissenting opinion as follows:

“The employment of union and nonunion men on the same job is a basic protest in trade union history. That was the protest here. The union was not out to destroy the contractor because of his antiunion attitude. The union was not pursuing the contractor to other jobs. All the union asked was that union men not be compelled to work alongside nonunion men on the same job. As Judge Rifkind stated in an analogous case, the union was not extending its activity to a front remote from the immediate dispute, but to one intimately and indeed inextricably united to it.'

“The picketing would undoubtedly have been legal if there has been no sub contractor involved—if the general contractor had put nonunion men on the job. The presence of a subcontractor does not alter one whit the realities of the situation ; the protest of the union is precisely the same. In each the union was trying to protect the job on which union men were employed. If that is forbidden, the Taft-Hartley Act makes the right to strike, guaranteed by section 13, dependent on fortuitous business arrangements that have no significance so far as the evils of the secondary boycott are concerned. I would give scope to both section 8(b) (4) and section 13 by reading the restrictions of section 8(b) (4) to reach the case where an industrial dispute spreads from the job to another front."

Justices Reed and Jackson also dissented.

Judge Clark of the second court of appeals, a former dean of the Yale Law School, took the view that even the broad language of the Taft-Hartley Act as originally written did not compel the artificial and technical result which is embodied in the Denver Building Trades rule. He said:

“Is the mere form of separate or nonseparate legal entities to be made thus decisive? Suppose the contract to be with a very large contracting concern working through departments. Would the picketing then also be confined to its electrical department, or would this lack of separate legal personality serve to prevent this result? Surely economic substance rather than form should control.” (IBEW Local 501 v. NLRB, 17 L.C., pars. 65, 626 at pp. 77, 106).

The substantial division among the Federal judges on this matter is further demonstrated by the decision of the U.S. Court of Appeals for the District of Columbia in the Denver Building Trades case (186 F. 2d 326, 18 L.C. pars. 65, 949). Judge Fahy, for a unanimous court, adopted the views stated by the dissenting opinion of Judge Clark, to which I have previously referred. Although one judge, in this court, dissented on another point he agreed with the court that the literal construction of section 8(b) (4) (A) produced an anomolous result.

Now that the issue is before the Congress on the basis of policy rather than interpretation of language, it would be advisable to legislate in the light of the substantial economic facts of the industry. Our national policy favors the organization of labor unions to carry forward the process of collective bargaining. The reversal of the Denver Building Trades rule would at least permit the building trades unions to secure the opportunity to endeavor to bring themselves within the protection of this policy.

The need for this relief is all the more urgent because the building trades unions have been unable to utilize the certification election process for the purpose of organizing. Again, the special facts of the building and construction industry have produced a result which is different, in this industry, as distinguished from manufacturing employment. The temporary and intermittent nature of employment on building jobs just does not lend itself to the election procedures which are available to groups permanently employed. The National Labor Relations Board made efforts to hold elections in various areas but all such efforts were unsuccessful. The only elections which have been held are those which tend to recognize existing relationships which have been in effect for many years.

I believe it would be well to take notice of the fact that the legal situation with respect to organizational rights has changed since the proposal to reverse the Denver Building Trades rule was first presented to Congress. In the last session of the Congress, there was enacted legislation which restricts organizational picketing in all industries, including the building and construction industry. The provisions of my bill do not affect these restrictions. It must, therefore, he realized that the object of my bill is to secure equity and fairness for the building trades. They will continue to be under the same restrictions which are applicable to other industries. The proposal to reverse the Denver Building Trades rule is intended to relieve them of the additional restriction which results from the application of that rule.

In conclusion, I think it is also well to recognize that in the discussions of the conference committee account was taken of the fact that employers having agreements with labor organizations expressed themselves in support of the proposal to reverse the Denever Building Trades rule because they did not consider the type of picketing involved to constitute a true secondary boycott. This, of course, is also the view which has been expressed in three separate messages delivered by President Eisenhower to the Congress in 1954, 1958, and 1959. You are, of course, aware, Mr. Chairman, that on February 5, 1960, the Secretary of Labor informed the chairman of the full committee of the administration's support of this legislative proposal.

Mr. PERKINS. Congressman Pelly, you are recognized.



Mr. PELLY. I have a brief statement.

Mr. Gray just testified, and not adding to what has been said about him, I think that contractors and members of the building trades alike in my district, which is the First District of Washington, feel very grateful to him for the particular work that he did in avoiding and eliminating one of the growing pains of labor, which is the jurisdictional strike. For that his name should go into the Hall of Fame. Mr. Chairman, with your permission I shall give my statement. I strongly support the bills, including the one which I introduced, so as to remove situs or job site restrictions on picketing in the building construction industry from the secondary boycott provisions of the Taft-Hartley Act.

As the subcommittee knows, section 8(b) (4) of the act prohibits concerted activity by a union to discourage an employer from doing business. Since the typical building construction project instead of being conducted by a single employer often consists of several contractors, a picket on a job site of one employer engaged in one operation, or one type of work, under the rule of the Denver Building T'rades case constitutes a violation of the Taft-Hartley Act inasmuch as it has the effect of inducing various contractors or employers to cease doing business with each other.

Thus, under these conditions an employee with a legitimate labor collective bargaining grievance or dispute with his employer is deprived of his right to picket.

On the other hand, in a manufacturing operation on one site the same employee can picket and other employees in other departments and types of work can respect and refuse to cross the picket line.

I feel this inconsistency points up a discrimination against the building trades employees and that picketing on a construction project does not constitute a true secondary boycott.

If no exemption for situs picketing is allowed for the building and construction industry, the existing contracting practices could change and contractors and business firms who do not subcontract could be hurt and will lose the opportunity to bid on many projects. Indeed, an irresponsible contractor could use a subcontractor as a device to prevent picketing and break unions nullifying any economic measures of building trades members to protect themselves from substandard workers lowering area wages and working conditions.

Last year when the Labor-Management Reporting Act was under consideration, the legislative situation was such that the House was not given an opportunity to consider situs picketing for the building trades although it had much support including the administration's blessing.

Therefore, I commend this subcommittee for scheduling this hearing and urge favorable action on legislation to overrule the onsite picketing decision in the Denver Building Trades case.

In conclusion, Mr. Chairman, I would like to express my appreciation for this opportunity to appear before the committee today.

Mr. PERKINS. Thank you very much, Mr. Pelly, and we certainly appreciate your testimony. You have clearly stated the issue.

Mr. Kearns. I am very glad to have my colleague join me in support of this legislation.

Mr. PELLY. I thank the gentleman from Pennsylvania.
Mr. PERKINS. Mr. Osmers, will you come around, please?


IN CONGRESS FROM THE STATE OF NEW JERSEY Mr. OSMERS. Mr. Chairman and members, I am the sponsor of H.R. 9140, which is similar to other bills which have been introduced to change the labor-management law with respect to common situs picketing in the building and construction industry.

Under the Supreme Court's 1951 Denver decision, it was determined that where construction union picketing at a building site was for the purpose of calling attention to a nonunion subcontractor, the union was held to be conducting an illegal secondary boycott activity.

Mr. Chairman, I have two main purposes in urging the passage of this legislation: First, picketing banned by the Denver decision does not constitute a true secondary boycott as would the refusal of a union to handle non-union-made material, for example; second, members of building and construction trade unions should not, in my opinion, be deprived of a basic legal right which members of other unions have under the law.

Mr. Chairman, within my district and State, housing, industrial, and public construction of all kinds is a most important part of our economy. That is why I would never urge the adoption of any legislation which would hinder or halt the great construction industry by giving an unfair advantage to either labor or management. My bill, H.R. 9140, merely restores certain legal rights to building and construction unions which they apparently lost under the Denver decision simply because of the nature of the construction industry.

Under existing law, an industrial union can legally picket a mine, mill, or factory for exactly the same purposes that now constitute an illegal activity when done by a construction union.

Mr. Chairman, being mindful of the time the subcommittee has already given the subject, I will now conclude my statement unless the members have questions. Of course, I will be glad to furnish any substantiating evidence that is required.

Mr. PERKINS. Mr. Osmers, we thank you for your testimony and yon certainly have made a contribution and you clearly understand the issue, and you have so stated it for the record.

We appreciate your coming here. Mr. OSMERS. Thank you very much. Mr. PERKINS. Are there any further members or are there any Members of Congress present who would like to comment?

If not, that concludes the hearings for today, and we will recess until 10 a.m. tomorrow, at which time the committee will reconvene.

(Whereupon, at 12 noon the committee was recessed, to reconvene at 10 a.m., Wednesday, February 17, 1960.)

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