It is the firm opinion of the administration that no legislation can be considered as deailng completely and effectively with the problems uncovered by the select committee unless it provides protections against "blackmail picketing" and closes loopholes in the secondary boycott provisions of the act. Equally essential is legislation which will realistically deal with the jurisdictional no man's land which exists today.

One of the conclusions reached by the select committee in its interim report was that "the weapon of organizational picketing has been abused." The full quotation, from page 6 of the report, is as follows: (7) The weapon of organization picketing has been abused by some of the unions studied.

(a) They have used this device to extort funds from management.

(b) They have used it without the consent of the employees of the picketed plant and before some or any of them have indicated a desire to join the union in question.

(c) They have ignored NLRB processes available to them for lawful and peaceful organizing methods.

The approach of H.R. 3302-Mrs. Green's bill-and similar bills is to deal only with that part of the select committee's conclusion which relates to organizational picketing for extortion. Since there are criminal statutes against extortion in every State and a Federal statute dealing with it-the Hobbs Act-it would seem that expressly making it an unfair labor practice under the National Labor Relations Act would not accomplish much.

On the contrary, it could lessen the remedies available against this type of picketing if it were considered as a Federal preemption precluding action by a State court. In addition, the provision as written in H.R. 3302 can be construed as barring picketing in connection with wage demands.

The administration's proposal does not contemplate the elimination of all recognition or organizational picketing. This picketing would be restricted, however, to those situations in which there is some indication that the employees are interested in being represented by the union.

The picketing provision of the administration bill-section 504 of H.R. 3540-is intended to restrict picketing when it is used as a means of coercing an employer to recognize, or his employees to accept, a union which none or only a few of the employees desire as their bargaining representative.

Thus, section 504 makes it an unfair labor practice for a union to picket, or to threaten to picket, an employer when the object is to force or require the employer to recognize it, or the employees to accept or select it as the bargaining representative

1. Unless the union can establish a "sufficient interest" on the part of the employees in being represented by it.

2. Where the picketing has continued for "a reasonable period

of time" without an election having been conducted.

3. Where another union is recognized "in accordance with [the]

act" and a question of representation cannot be raised.

4. Where a valid election under the act has been conducted within the preceding 12 months.

Whether there is "a sufficient interest," or whether the picketing has continued for "a reasonable period of time" are questions to be

determined by the National Labor Relations Board on the basis of all the facts in each case.

The tests are not intended to be rigid, but rather, to provide for a flexibility which would enable the Board to take into consideration all of the surrounding circumstances. It is intended that all of the equities in each particular situation be weighed by the Board so that the result reached would best effectuate the purposes of the act.

The third test would not apply to situations where the recognized union is certified-picketing in this circumstance is already barred under the present provisions of section 8(b) (4) (C)—but would apply where there is a recognized union not certified under the act.

In applying this test, it is intended that picketing by a rival union would be permitted if the union in the bargaining unit is a minority union-in other words, has not been selected by an uncoerced majority of the employees or if it is a company-dominated or assisted union, or if it has used fraudulent means to bring about or show a majority

status.

The fourth test listed above would be operative for the most part when the election had resulted in the certification of no union. If the election had resulted in the certification of another union, picketing for recognition would presently be barred under section 8(b) (4) (C). If the election resulted in the certification of the picketing union, picketing by the union would be permissible as being directed against the employer's unfair labor practice of refusal to recognize and bargain with it.

It might be noted that at present, secondary activity is permitted to force the recognition of a certified union under section 8(b) (4) (B), and the proposals make no change in this respect.

The bill introduced by Mr. Barden would make it an unfair labor practice for any union not certified by the National Labor Relations Board as the bargaining representative to strike or picket for organizational or recognition purposes. At the present time, employers can recognize majority unions and majority unions can picket without recourse to the National Labor Relations Board.

There are instances, experience shows, in which a union does not have available to it any organizational means other than picketing. The approach taken by Mr. Barden's bill would foreclose picketing in every situation, no matter how justifiable its use as a means of organization may be. The approach of the administration bill is substantially different since the administration recognizes the right to picket for representational purposes if, but only if, the employees of the employer have indicated sufficient interest in being represented by the particular union.

The administration bill-section 503-would eliminate the use of presently permissible secondary boycotts which lead to the injury of innocent third parties. The testimony before the select committee has again and again illustrated how certain unions utilized the inadequacies of the present secondary boycott provisions of the National Labor Relations Act to force employers to do business with only those people approved by union officials.

Yet the bills along the lines of H.R. 3302-Mrs. Green's bill-ignore the need for strengthening the secondary boycott provisions to deal

with these activities, which are no less contrary to public policy than those presently prohibited.

To sustain a charge of violation of the existing secondary boycott provisions of the act presently requires a combination of two factors: First, an objective of the union must be to compel one person to cease doing business with another; second, the means employed to achieve this objective must be through a strike or inducement of employees to concertedly refuse to perform services.

If these factors do not coexist, the secondary boycott provisions have not been violated under the law as it now stands. Some unions have, therefore, been able effectively to impose secondary boycotts and yet avoid the proscriptions of the act by directly threatening or coercing the employer-or his supervisory personnel-whom they want to cease doing business with another person.

They also avoid the existing provisions by inducing individual employees, or workers not defined as employees by the act-such as railroad and agricultural workers-to refuse to handle the products of the person with whom they want the employer to cease doing business. Under present law, the union can go directly to an employer and threaten him with "labor troubles" if he continues to do business with another employer. Often the threat of "labor trouble" is as potent a weapon as the "trouble" itself would be. Thus, pressure can be applied to a secondary employer without violating the present act.

Moreover, since the employer may be coerced, agreements may be forced upon him under which his employees do not have to work on goods produced by persons of whom the union does not approve. Although it has been held under the present law that a union may not seek to enforce such an agreement by inducement of employees to refuse to perform services, direct coercion of an employer by a union will get the same result.

Section 503 of the administration bill would bring within the scope of the prohibitions of the act (a) secondary boycotts which are effectuated by threats, restraints, or coercion directed at the secondary employer; (b) secondary boycotts achieved through activity directed at secondary employers who are not otherwise covered by the act; and (c) secondary boycotts achieved through the inducement or encouragement of single employees to refuse to perform services.

On the other hand, section 503 would make it clear that the secondary boycott provisions do not prohibit certain union activity which might otherwise be considered secondary; namely, (a) activity protesting the farming out of "struck work" and (b) under certain circumstances, activity at construction sites.

The "struck work" exception is intended expressly to write into the statute the principle of the present Board and court construction of the secondary boycott provisions.

The exception with respect to activity at a common construction site is intended to make clear that otherwise lawful primary activity in connection with a labor dispute at the site shall not be prohibited because of its incidental secondary effects upon employers engaged in work at the same site with the primary employer as joint venturers or as subcontractors.

None of the amendments in the secondary boycott provisions of the present act made by section 503 are intended to make any change in

the principle enunciated by the Board and the courts in interpreting the present provisions; that is, that these provisions do not limit primary activity, or to make any change in the present distinction between primary and secondary activity. Section 503 is not intended to restrict activity which is confined to the premises of the primary employer.

The bill introduced by Mr. Barden contains a provision which is the same as the administration's proposal insofar as it closes the loopholes in the second boycott provisions. It does not, however, contain the exception with respect to construction site activity and qualifies the "struck work" exception in a way different from the administration's proposal.

Action by Congress to eliminate the gap between the jurisdictions of the Federal Government and the States and Territories over labor relations matters is an urgent need. One of the legislative recommendations made by the select committee in its interim report-page 453-is as follows:

Testimony before the committee revealed that some employers have had no access to either the National Labor Relations Board or any comparable State agency. In many instances it was found that the fact that the National Labor Relations Board does not take jurisdiction in certain cases does not automatically turn over the case to a State agency.

In the committee's inquiry into activities in the New York area, it was shown that exploitation of workers and circumvention of legitimate labor organizations were made possible because employers had no recourse to any governmental agency. To solve the "no man's land" problem therefore, it is recommended that the National Labor Relations Board should exercise its jurisdiction to the greatest extent practicable, and, further, that any State or Territory should be auhorized to assume and assert jurisdiction over labor disputes over which the Board declines jurisdiction.

While there is general agreement on the need for dealing with the problem, there is considerable difference in the approaches suggested. I do not think that requiring the Board to assert jurisdiction over all labor disputes arising under the National Labor Relations Act, as provided in Mrs. Green's bill, meets the "no man's land" problem. The Board, as a practical matter, has not been able to assert jurisdiction to the full reach of the act.

To attempt to do so would force the Board to spend much of its time upon the countless numbers of disputes in small establishments which, although they affect commerce, are primarily local in character. There is a real danger that the length of time required to dispose of all the matters brought before the Board would be so increased as to make its processes ineffective.

Even if the Board were to be given increased funds to further extend its jurisdictional standards-and I think that the Board should exercise jurisdiction to the fullest extent that is reasonably possible there would remain numerous business establishments whose activities affect commerce so slightly and are so peculiarly local as to make it unwise, as well as impractical, for the Board to take jurisdiction over labor disputes which involve them.

The only way in which a forum may be provided for disputes of this kind is to make it clear that agencies and courts of the States and Territories can act when the Board declines to assert jurisdiction. To fail to do this would be to leave many of the racketeering activities directed

against small employers in an area in which no relief is available, either from the Federal Government or the States.

The administration proposal as contained in Mr. Kearns' bill would specifically authorize the Board to decline jurisdiction where it does not consider that the effect on commerce is sufficiently substantial to warrant the exercise of its jurisdiction and would authorize the States to act where the Board so declines.

Prior to the Supreme Court's decision in the Guss case, many State agencies and courts assumed that they had such authority and asserted jurisdiction in this area. The effect of the administration's proposal, therefore, is no more than to make legal a situation which many States thought existed prior to the Guss decision.

Bills which take the approach of the bill introduced by Mr. Barden propose to deal with this matter by authorizing the States to exercise concurrent jurisdiction over labor disputes covered by the act— unless there is direct and positive conflict between the applicable provisions of State or territorial law and the applicable provisions of the Labor Management Relations Act.

I am informed that "direct and positive conflict" is the test used by the courts in determining whether State action invades a field preempted by a Federal statute. It may be questionable, therefore, whether this proposal would close the "no man's land" gap.

I would be opposed to any provision which would actually provide concurrent jurisdiction and destroy the uniformity of law and procedures which I think is a necessary part of a national labor policy.

The administration's bill introduced by Mr. Kearns would remove from the National Labor Relations Act the second sentence of section 9(c) (3), which presently precludes any replaced economic striker from voting in a representation election.

The possibility of the use of this provision by an employer to destroy a union representing his striking employees has been recognized. By removing the statutory bar, the matter of the voting rights of all employees would be left to determination by the Board, as are other matters in connection with the conduct of elections.

The bill introduced by Mr. Barden deals with this problem by requiring that any representation election sought during a strike, in which recognition is not an issue, be delayed until the termination of the strike, or until 3 months after the commencement of the strike, whichever is sooner.

However, the administration prefers the elmination of the statutory bar and the determination by the Board of the voting rights of the strikers, as well as the timing of the election, in the light of all the circumstances.

Turning now to the lack of democratic organization and procedures in some unions, and the misuse of funds in some unions, the approach to be taken by legislation in dealing with these important problems deserves most careful consideration.

Proposals for specification by Federal law of detailed standards to be incorporated in union constitutions and bylaws are based upon the belief that the McClellan committee revelations call for such detailed regulation of the internal affairs of unions. The approach favored by the administration and proposed by H.R. 3540 and its companion bills, however, seeks to avoid Federal regulation of internal union af