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This tradition and policy should not be lightly abandoned, and never without a prior and conclusive demonstration of pressing need for governmental intervention of the type which experience has shown us would be inevitable once a labor-disputes agency is established or permitted to function. Accordingly we strongly urge that voluntarism and good-faith negotiation be given a chance to demonstrate their worth before adopting the compulsive methods of the totalitarians who seek to destroy our way of life.
3. A disputes agency would encourage strikes and thus impede the mobilization effort.
There is no doubt whatsoever that mere existence of the War Labor Board during World War II served to and did encourage strikesmin spite of the "no-strike-no-lock-out" pledge. Thus, for example, the record shows there were strikes to get cases heard by the War Labor Board; strikes to extend and expand War Labor Board decisions; strikes in protest of War Labor Board decisions; and strikes to hasten War Labor Board action. As stated by the National Labor Relations Board, which under the War Labor Disputes Act had the responsibility of conducting strike polls:
The character of the disputes also point to the conclusion that unions are seeking to make use of the strike ballot to bring pressure in the form of a strike threat to bear upon the governmental agencies dealing with labor disputes, either in the hope of obtaining more favorable decisions or more rapid ones. (Ninth Annual Report of NLRB, p. 73.)
These were strikes which it is entirely reasonable to expect would not have taken place except for the existence of a labor-disputes agency
During the period 1942 through 1945 the record shows there were 16,126 strikes involving 8,410,000 workers with a direct loss of 61,400,000 man-days of production. The indirect loss of production resulting from these strikes is probably beyond calculation, but we do know it was an expensive luxury. These strike figures were compiled during a period when our Nation was engaged in an all-out war for survival. They were also compiled during the period of the “no-strike" pledge given by organized labor in return for establishment of the War Labor Board in 1942. That is one reason why manufacturing industry would not ask for or expect a “no-strike” pledge today. With that number of strikes called during a period of actual war while a disputes agency existed, is it at all reasonable to expect that creation of a disputes agency in a period of “partial mobilization" will serve to minimize labor disputes? We are convinced that it will not; in fact, we believe that, as during World War II, the mere existence of such an agency will encourage strikes and thus hamper defense production.
We have attached to this memorandum two appendixes, appendix A is a strike record. It is my understanding you have had testimony that strikes have increased. It is true in 1949 the number of work stoppages did increase, but the number of man-days involved was some 20 percent less in 1950 than in 1949, which I suggest is a better measure than the number of work stoppages, and the number of hours lost were considerably less in 1950 than in 1919. I just enter that for the record, if I may.
Senator SPARKMAN. Is that shown in your statement ?
Mr. MOSHER. It is in “Appendix A, work stoppages, workers inTolved, and man-days idle.” * I suggest, Mr. Chairman, that the record
of workers involved and days lost is a better record than the number of stoppages, which I understand has been presented to you on the basis that there have been more stoppages. I suggest that those stoppages were of less duration and of less intensity, and that the record is a pretty good record.
4. Existing law is adequate to deal with disputes threatening the defense effort.
As I indicated earlier, the Defense Production Act, in section 502, stated the national policy as placing primary reliance upon parties to resolve their disputes through negotiation and collective bargaining "and the full use of mediation and conciliation facilities."
You will also recall that the Labor-Management Relations Act created an independent Federal Mediation and Conciliation Service to assist parties in the settlement of their differences. That service in the almost 4 years of its operations is generally regarded as having made a substantial contribution to industrial peace. Yet the very existence of any agency similar to the War Labor Board of World War II would, as I have attempted to demonstrate, severely prejudice its effectiveness.
We sincerely believe that, rather than embark upon a course which the record shows will aggravate labor disputes, it is far preferable to continue to rely upon good-faith negotiations and assistance from the Mediation Service for the resolution of differences between employers and their employees.
In addition, the Labor-Management Relations Act contains provisions specifically and carefully designed to protect the public interest in situations where a dispute, for one reason or another, is not settled through negotiation and mediation and conciliation.
These national emergency provisions of existing law should be adequate to deal with such situations if utilized where the national interests are jeopardized. In event utilization of the national emergency provisions fail to settle a labor dispute, the President is required to submit to Congress a full and comprehensive report of all the proceedings, together with such recommendations as he may see fit to make for consideration and apropriate action.” It is our deep conviction that Congress, which has the sole responsibility to establish national policy, is the body to which such cases should be referred—not to some agency the mere creation of which will destroy negotiation and collective bargaining, will encourage strikes and thus impede the defense effort, and for which no need has been demonstrated. It is, therefore, our earnest belief that existing law is adequate to deal with any labor disputes which may substantially threaten our mobilization program, and further that no disputes agency of any kind is needed now or in the foreseeable future.
As I have pointed out earlier, and as this committee best knows, title V of the Defense Production Act clearly places primarily reliance on negotiation, collective bargaining and conciliation and mediation for the settlement of labor disputes affecting national defense. Any other disputes-settling mechanisms are to be established only in accordance with any agreement which might be reached at labor-management public conferences the President is authorized to initiate.
Only by expressly forbidding the President from acting otherwise than in accordance with title V could Congress have made its statutory
design more clear. Notwithstanding the clear expression of Congressional authorizations and intent, the President, as you gentlemen know, on April 21 adopted the recommendation of 12 of the 16 members of his National Advisory Board on Mobilization Policy and reconstituted the Wage Stabilization Board with jurisdiction over labor disputes.
The four dissenting members of the President's Advisory Board were those who had been appointed because of their experience in business and industry. It should be emphasized, however, that under Executive Order No. 10224 creating the Advisory Board, all members were "to represent the general public and the general interest."
Attached to my statement as appendix B is a memorandum, which gives a complete history of what has happened in this general situation in connection with wage stabilization, which I will refer to a little later, if I may. This statement was prepared in order that Members of Congress might be apprised of all of the facts leading up to the creation of a disputes body, industry's views on this important development, and the underlying reasons for industry's dissent to the recommendations of the Advisory Board and the President's action. Accordingly, while I should like to have this memorandum included in the record of your hearings, I shall not now dwell upon its contents.
I would like to emphasize, however, that industry does not, as was pointed out by the Advisory Board members appointed from business life, consider the meetings held by the President's Advisory Board to be a labor-management-public conference as contemplated by the Defense Production Act. Nor, obviously, does industry believe that any “agreement” was reached as was also required by that statuteeven assuming that the meetings of the Advisory Board could be deemed to be a conference.
We are reliably informed that representatives of the Attorney General's office agree with this view. In fact, it has been reported in the press that representatives of the Attorney General had prepared an opinion for the Economic Stabilization Administrator to the effect that no disputes agency of any kind could be created until agreement was reached at a conference of the kind authorized in title V of the Production Act.
Clearly, therefore, the President was not acting pursuant to statutory authority in directing the Wage Stabilization Board to assume jurisdiction over disputes between employers and employees. Consequently he must have been acting under whatever “general" or "implied” powers he may possess under the Constitution.
In recent years there has been much discussion as to whether or not any "implied” power resides in the Presidency during periods of national emergency. I am not a lawyer, as you gentlemen know, and am not qualified to discuss this legal question. It seems to me as a layman, however, that when Congress has specifically and expressly provided the only means whereby a disputes agency can be created, such express procedures and limitations must necessarily prohibit the exercise of any implied authority which might otherwise exist. Apparently, as I pointed out a few moments ago, the Office of the Attorney General agrees with this view.
Senator BRICKER. Have we got any opinion from the Attorney General, any formal opinion of the Attorney General in that respect?
Mr. MOSHER. Only as a report in the press, Senator Bricker.
Senator BRICKER. What is the date, so we can get that report? I overlooked it.
Mr. MOSHER. I can only guess. The President's order was dated April 21 or 22. I would guess it to have happened early in April, somewhere between the 1st and the 15th.
I will be glad to get a copy of the press release.
Senator BRICKER. I would like to have that so we can check on it and see whether there was a formal opinion, or what the extent of the opinion really was.
A letter from Deputy Attorney General Ford on this matter will be found on p. 1761.)
Mr. MOSHER. I would be glad to get the press release. (The order referred to follows:)
APRIL 21, 1951.
EXECUTIVE ORDER 10233, AMENDING EXECUTIVE ORDER NUMBER 10161 WITIL
RESPECT TO WAGE STABILIZATION AND SETTLEMENT OF LABOR DISPUTES WHEREAS the maintenance of wage stabilization under the Defense Production Act of 1950 is essential at this time in the interest of the national defense; and
WHEREAS the maintenance of effective wage stabilization imposes limitations on the processes of free collective bargaining, making necessary the development of machinery to facilitate the settlement of labor disputes in conjunction with the administration of wage stabilization; and
WHEREAS on April 17, 1951, the National Advisory Board on Mobilization Policy made the following recommendation to the President :
"1. The Wage Stabilization Board shall be reconstituted as an 18-man tripartite Board with six representing the public, six representing management, and six representing labor.
“2. The reconstituted Wage Stabilization Board shall be empowered to assume jurisdiction of any labor dispute which is not resolved by collective bargaining or by the prior full use of conciliation and mediation facilities and which threatens an interruption of work affecting the national defense where :
“(i) The parties to any such dispute jointly agree to submit such dispute to the Board, or
"(ii) The Pr ident is the opinion that the dispute is of a character which substantially threatens the progress of national defense and
certifies such dispute to the Board. "3. In any such case certified to the Board by the President or in any such case where the parties jointly agree to submit the case to the Board for their recommendations, the Board shall investigate and inquire into the issue in dispute and promptly report to the President thereon with their recommendations to the parties as to fair and equitable terms of settlement.
“4. In any such case where the parties jointly agree to be bound by the decision of the Board, the Board shall render a decision on the issues in
dispute which decision shall be binding on the parties.” AND WHEREAS I deem it necessary and desirable that such recommendation be carried out,
Now, THEREFORE, by virtue of the authority vested in me by the Constitution and statutes, including the Defense Production Act of 1950, and as President of the United States and Commander in Chief of the armed forces, it is hereby ordered as follows:
SECTION 1. Part IV of Executive Order No. 10161 of September 9, 1950, is here. by amended by revoking sections 103 and 104 thereof and by inserting after section 102 thereof the following new sections:
"SEC. 403. (a) There shall be in the Agency a Wage Stabilization Board (hereafter in this Part' referred to as the Board ) composed of eighteen members who shall be appointed by the President. Six of the members so appointed shall be representative of the public, six shall be representative of labor, and six shall be
representative of business and industry. There shall be a chairman and a vice chairman of the Board, each of whom shall be designated by the President from among the members representative of the public.
** (b) In addition to the functions assigned to it by the provisions of the following sections of this Part IV, the Board shall perform such other functions with respect to wage stabilization as may be determined by the Administrator after consultation with the Board.
“SEC, 404. To the maximum extent consistent with the maintenance of effective economic stabilization, the provisions of this Part shall be administered in such a way as to preserve collective bargaining between labor and management.
“SEC. 405. The Board may assume jurisdiction of any labor dispute which is not resolved by collective bargaining or by the prior full use of conciliation and mediation facilities and which threatens an interruption of work affecting the national defense where:
“(a) The parties to any such dispute jointly agree to submit such dispute to the Board for recommendation or decision, if the Board agrees to accept such dispute, or
“(b) The President is of the opinion that the dispute is of a character which substantially threatens the progress of national defense and refers
such dispute to the Board. “SEC. 406. In any case referred to the Board by the President under section 405 the Board shall investigate and inquire into the issues in dispute and promptly report to the President thereon with its recommendations to the parties as to fair and equitable terms of settlement.
“SEC. 407. In any case where the parties jointly agree to submit the case to the Board for its recommendations under section 405, the Board shall investigate and inquire into the issues in dispute and shall advise the parties of its recommendations for fair and equitable terms of settlement.
“SEC. 408. In any case submitted or referred to the Board under section 405 where the parties jointly agree to be bound by the decision of the Board, the Board shall render a decision on the issues in dispute, which decision shall be binding on the parties.
“SEC. 409. Any wage action taken by the Board with respect to any case submitted or referred to it under section 405 shall be consistent with stabilization policies.
"SEC. 410. Such panels and subsidiary agencies of the Board as may be deemed necessary may be constituted under this Part, and in order to carry out its functions under this Executive order, the Board may promulgate rules, regulations, orders, and directives."
SECTION 2. All orders, regulations, rules, certificates, directives, and other actions relating to any function affected by the amendment made by the provisions of section 1 of this Executive order (including the appointments of members of the Board in office on the date hereof) shall remain in effect except as they are inconsistent herewith or are hereafter amended, revoked, or terminated under proper authority.
SECTION 3. Nothing in this Executive order shall be deemed to supersede any provision of Executive Order No. 10193 of December 16, 1950.
Section 4. No action inconsistent with the provisions of the Fair Labor Standards Act of 1938, as amended, other Federal labor standards statutes, the LaborManagement Relations Act, 1947, or with other applicable laws shall be taken under this Executive order.
HARRY S. TRUMAN, THE WHITE HOUSE, April 21, 1951.
Mr. MOSHER. Under the Constitution all legislative power of the Federal Government is vested in the Congress and the President is commanded to "take care that the laws be faithfully executed." In my judgment, the President, in recreating and defining functions of the Wage Board, did not take care that the laws be faithfully executed since he clearly by-passed the specific provisions of and the congressional intent expressed in the Defense Production Act.
Not only did the President, in Executive Order No. 10233 of April 21, bypass the intention of Congress expressed in the Defense Production Act; he clearly avoided one of the requirements of the LaborManagement Relations Act.