S. 1580 proposes to abolish majority rule in collective bargaining. This matter was fully considered when the act was passed. It was then recognized, and the operation of the act confirms, that majority rule is essential to collective bargaining. We have already considered certain proposals in S. 1000 relating to contracts. In addition to those mentioned above, sections 8 (a) and 10 (d) of S. 1000 propose to amend the act so as to legalize contracts with labor organizations (other than "company unions"), even though the employer has favored and assisted the labor organization by any or all forms of unfair labor practices. A contract entered into by an employer with the freely chosen representatives of his employees is plainly legitimate. But a contract made with a labor organization that has been corrupted by the employer's unfair labor practices serves only to perpetuate the effects of such practices and thwart the real desires of the employees in self-organization. This is especially true of a closed-shop contract, which by its terms compels all employees to join the favored organization or be discharged. For this reason the act provides and the Board has consistently held that a closed-shop contract made with a labor organization established, maintained, or assisted by the employer's unfair labor practices was invalid. The act likewise clearly implies, and the Board has consistently held, that any contract, whether or not closed-shop, which is made with a labor organization unlawfully assisted by the employer as part of a plan to defeat self-organization in his plant, is invalid. The Board has applied these principles not only to contracts made with company-dominated unions but also in a dozen or more cases to contracts made with American Federation of Labor and Congress of Industrial Organizations unions. S. 1000 proposes to amend the act to overrule these cases. Obviously this proposal is wholly in conflict with the basic principles of the act. The act professes to protect employees against discrimination and other unfair labor practices. Under this proposal, however, if the employer is sufficiently successful in his unfair labor practices so that he drives an ostensible majority of his employees into the favored union, then he is permitted to sign a closed-shop contract with that organization, force all employees to become members, and thereby render himself immune against any redress the act could give. In our opinion, to legalize collusive contracts in this way would simply operate to nullify most of the safeguards to self-organization the remainder of the act affords. 3. PROPOSALS TO "EQUALIZE" THE ACT BY IMPOSING RESTRICTIONS UPON EMPLOYEES 28 Section 8 (b) of S. 1264 establishes a series of unfair labor practices of employees. Under these provisions it becomes an unfair labor practice for an employee (1) to interfere with, restrain, or coerce other employees in the exercise of their rights to self-organization; (2) to threaten, intimidate, restrain by force or threat, or coerce any other employee; (3) to engage in any act, during a labor dispute, which is a violation of civil or criminal law; (4) to interfere with his employer's business where the basis of such interference is a dispute among employees or between labor organizations; (5) to strike except pursuant to a majority vote of the employees; (6) to strike in violation of a valid contract. The penalty imposed for committing one of the foregoing unfair labor practices is not that the Board shall issue a cease-and-desist order against the employee, but that the employee's unfair labor practice shall be a defense to any unfair labor practices committed by the employer. In other words, where an employee commits an unfair labor practice he is subject to immediate discharge at the will of the employer and loses all rights under the act. In our opinion the underlying premise of these provisions-that the act is "one-sided" and needs "equalization"—is without foundation. This matter has already been discussed. In any event, the proposals are objectionable because the practices they propose to outlaw either are already penalized under State or local law, or constitute legitimate union activity, or raise no pressing demand for Federal regulation; because to incorporate such regulation in the act will transform the Board into a gigantic Federal police court and seriously divert its time and energy from the basic objectives of the act; and because the pro ♫ Discussed in sec. IV, infra. Discussed in sec. V, infra. posal that employee unfair labor practices shall be a defense to employer unfair labor practices is cumbersome in application, constitutes an open invitation to employers to engage in the most aggravated form of unfair labor practices in order to provoke retailiation by the employee, imposes a penalty upon employees that is far too drastic and immeasurably more severe than that imposed on employers, and results not in an orderly method of settling disputes within the law but in total abdication of the law as soon as the first offense is committed. Section 9 (e) of S. 1264 proposes to require labor organizations which desire to secure a certification from the Board to file a statement showing, among other things, that all officers are American citizens, that individuals who will actually function in collective bargaining are American citizens and a majority of them employees of the employer, and including a financial statement. This proposal, without accomplishing any affirmative benefit, needlessly restricts employees in fundamental rights guaranteed by the act. Aliens are not disqualified from holding office in corporations or from representing corporations in collective bargaining or other capacities. The requirement of filing the financial statement would often result in serious damage to a weak or struggling labor organization. 4. PROPOSALS AFFECTING DETERMINATION OF THE APPROPRIATE BARGAINING UNIT 29 Section 9 (b) of S. 1000 proposes to amend section 9 (b) of the act to provide that whenever a group of craft employees exists in a plant that group shall automatically constitute a separate bargaining unit. A separate unit must be created irrespective of the wishes of the employees in the craft group or the wishes of the other employees in the plant, irrespective of whether a craft union exists, or ever has existed, or is ever likely to exist in the plant, and irrespective of whether any craft union in existence has jurisdiction over the employees in question. This proposal must be considered in the light of the Board's decisions upon the appropriate unit. Without discussing these decisions in detail at this point, it is sufficient to point out that in cases where American Federation of Labor unions have requested a craft unit the Board has established such a unit, or permitted the craft employees to express their own preference, in all but an insignificant number of cases. Those cases involved exceptional circumstances, set forth in full subsequently, and resulted in no impairment of the rights of craft unions. In our opinion the proposal in S. 1000 would impose an intolerable administrative burden upon the Board in requiring determination of the limits of many hypothetical craft unions in each case; would place the Board and the courts in the position of deciding all jurisdictional disputes arising within the American Federation of Labor; would make collective bargaining impossibly complicated and wholly ineffective; and would in the great majority of cases thwart, rather than carry out, the desires of the employees. This latter point is evidenced by the fact that up to March 1, 1939, American Federation of Labor unions have petitioned the Board for an industrial unit in approximately 210 cases and for a craft unit in approximately 100 cases. Section 9 (b) of S. 1264 deals with the craft-unit problem by suggesting an amendment which apparently requires the Board to set up a separate craft unit whenever a majority of the employees in a craft group desire such a unit. This does not differ essentially from the Board's present practice, but the advisability of creating a rigid statutory formula is questionable. Section 9 (b) of S. 1000 also amends section 9 (b) of the act by preventing the Board from establishing a unit broader than the employees of one employer. Section 9 (b) of S. 1264 proposes whenever a majority of the employees in a single plant desire a separate unit the Board must establish such a unit. The Board considers both of these proposals inadvisable. There are cases in which a narrow unit composed of the employees of a single employer or in a single plant is plainly desirable; there are other cases where a unit composed of the employees of a group of employers or in several plants is also plainly desirable. It is impossible to lay down a satisfactory general rule in this situation and we see no need for it. 29 Discussed in sec. VI, infra. 5. PROPOSALS AFFECTING THE JURISDICTION OF THE ACT 80 The most important proposal affecting the jurisdiction of the act is that embodied in S. 1550. This bill would define the term "agricultural labor" so as to exempt from the provisions of the act employees engaged in packing, canning, and similar post-farming processes. A similar proposal is made in section 2 (4) of S. 1264. In our opinion the employees sought to be denied the benefits of the act by these proposals are not agricultural laborers but industrial laborers. The reasons for exempting agricultural labor from the act in no sense apply to them and we see no valid ground for excluding them. 6. MISCELLANEOUS PROPOSALS AFFECTING THE SUBSTANTIVE PROVISIONS Various miscellaneous proposals not considered in the above categories are discussed in section IX hereinafter. These include proposals in sections 2 (3) and (9), 9 (a), 10 (c) and (k) of S. 1264 and section 15 of S. 1000. The only proposal which requires mention at this point is the provision in section 10 (c) of S. 1264 which would deprive the Board of power to order the reinstatement of employees discharged for union activities unless the employer agreed to such reinstatement. Under this provision the only remedy accorded an unlawfully discharged employee is "remedial severance pay." Plainly this proposal would enable the employer to rid himself of all the key figures in an unwelcome labor organization at the mere cost of "remedial severance pay." 7. PROPOSALS FOR CHANGES IN THE PROCEDURE OF HANDLING UNFAIR LABOR PRACTICE CASES 32 S. 1000 and S. 1264 propose numerous modifications of the procedural provisions of the act relating to the handling of unfair labor practice cases. In general these proposals are designed to curtail the discretion of the Board in its essential administrative functions either through the establishment of a rigid statutory formula of administrative procedure or by subjecting the Board's administrative actions to extensive review in the courts. The major proposals in S 1000 are as follows: Section 9 (e) of S. 1000 proposes to give jurisdiction to the district courts to issue "appropriate writs" to compel the Board to perform its functions and duties. In the Board's opinion such a provision would bring a return of conditions existing during the period when the Board was subjected to injunction suits in the district courts, referred to above. The proposal would merely expose the Board to endless futile and vexatious litigation cosuming its time and energies and delaying its other proceedings. Section 10 (b) of S. 1000 proposes to amend section 10 (b) of the act to provide that whenever a charge is filed with the Board, the Board must either issue a complaint or enter an order declining to issue a complaint. Any order of the Board refusing to issue a complaint is made reviewable in the circuit courts of appeals. This proposal in effect transfers from the Board to the courts, acting at the instigation of private parties, purely administrative decisions as to whether or not proceedings should be instituted in enforcement of the act. Not only is such a proposal unprecedented in the history of administrative agencies, but it imposes upon the courts the burden of passing upon questions of administrative policy which courts are neither designed nor equipped to handle. Moreover the proposal would subject the Board to a flood of fruitless litigation which would consume its time and dissipate its energies upon numerous and inconsequential matters. The provisions in section 10 (b) of S. 1000 dealing with requirements of notice to parties to a contract have already been discussed. In addition, section 10 (b) of S. 1000 proposes that the Board be required to make all persons "whose interests might be adversely affected" parties to the proceeding. This proposal, on its face, seems to state a desirable principle. Upon closer examination, however, it is apparent that the provision is unnecessary to protect any 30 Discussed in sec. VIII, infra. person having a legitimate interest in the proceeding and merely introduces procedural hazards which would imperil the effective operation of the act. Section 10 (c) of S. 1000 imposes specified time limits within which the successive steps in unfair labor practice proceedings must be taken. Presumably a failure to adhere to this time schedule renders the whole proceeding null and void. The Board is well aware of the importance of the rapid disposition of the cases brought before it. Nevertheless, in our opinion, it would be foolhardy to impose upon the Board arbitrary statutory limitations of this nature. The experience of the Board in handling cases with its present facilities shows that the proposed time schedule could not possibly be adhered to in a substantial number of cases. Further it would tremendously handicap the work of the Board by preventing the informal adjustment of cases, by causing overhasty consideration of cases, and by making it necessary for the Board to refuse the issuance of complaints in cases where there would be no possibility of conforming to the time schedule. Section 10 (g) and (h) of S. 1000 extend the scope of review of the Board's findings of fact to vest in the reviewing court the function of determining whether or not the Board's findings are supported by "substantial and credible" evidence. This provision is contrary to the basic principle of administrative law that appraisal of the evidence and determination of the facts in administrative proceedings shall rest with a body of experts trained and experienced in the field subject to regulation; that the findings of such agency shall be binding unless unreasonable or without support in the evidence; and that the function of the reviewing court shall be confined primarily to questions of law. The provision in the act dealing with review of the Board's findings of fact is identical with that in numerous other statutes establishing comparable administrative agencies. The Supreme Court has not only sanctioned this principle but has insisted upon strict adherence to its spirit. We see no reason to abandon the basic principles of administrative law in this respect. Section 11 (1) of S. 1000 proposes that in any case where the Board denies a subpena to a party to a proceeding, that party may apply to the district court and the district court shall have jurisdiction to issue the subpena. We believe that this proposal is unnecessary to secure any party his full rights in obtaining subpenas, that it will prove exceedingly damaging to the interests of labor, and that it will afford the opportunity for interminable delays for any party interested in drawing out the proceeding. The major proposals in S. 1264 dealing with the procedure of the act in unfair labor practice cases may be summarized as follows: Section 10 (b) of S. 1264 proposes that the Board be deprived of the power to issue a complaint against an employer except where (1) the employees aggrieved by the alleged unfair labor practices have, within 30 days after the commission thereof, served on the employer a statement of the charges and the relief desired; (2) the employer has, within 30 days, failed to adjust the matter and the employees have, within 60 days thereafter, filed charges with the Board; (3) the Board's complaint has been issued within 6 months after commission of the unfair labor practices and is limited to the charges already made and the relief already demanded of the employer by the employees. The obvious effect of these conditions is to surround the issuance of a complaint with so many time limitations and legal complexities as to make the institution of proceedings against an employer an intricate and hazardous matter. In our opinion, if the act is to achieve its purpose, recourse to its provisions by employees should be encouraged and facilitated. S. 1264 also contains proposals for amendment on minor procedural matters which it is not necessary to discuss at this point. S. 1264 likewise contains proposals similar to those embodied in S. 1000 dealing with the review of Board findings of fact and with the issuance of subpenas. Section 11 of S. 1264 would permit an employer to remove a proceeding from the Board to the district courts. The effect of this proposal would be to eliminate all possibility of a centralized administration and interpretation of the act and diffuse responsibility for enforcement among the various United States district judges. It would in effect nullify the procedures of the act based upon principles of administrative law and turn the administration of the act over to the Federal district courts. 8. PROPOSALS FOR CHANGING THE PROCEDURE OF HANDLING REPRESENTATION CASES As in the case of unfair labor practice cases, section 9 (d) of S. 1000 imposes certain time limitations within which the various steps must be taken in representation cases. The same objections to such a time table in unfair labor practice cases apply with equal force in representation cases. Section 9 (b) of S. 1000 and section 10 (j) of S. 1264 propose that the Board's certification of representatives should be subject to independent court review by labor organizations in the same manner as the Board's cease and desist orders. This problem is a difficult one. On the one hand the Board recognizes and fully sympathizes with the feeling of a labor organization that its interests have been prejudiced by a Board certification and that it should be permitted court review. On the other hand we must face the fact that to permit court review of Board certifications means simply that, where two or more labor organizations are involved, the collective bargaining machinery of the act cannot function. Weighing the advantages of court review against the disadvantages we are convinced that the interests of labor organizations in general and the interests of the public will best be served by retaining the act in its present form without provision for court review. S. 1392 deals entirely with the procedure for administration and enforcement of the act. In brief, it abolishes the present Board and divides its functions among different agencies as follows: (1) A Labor Relations Commissioner, established in the Department of Labor, shall have the power to investigate, initiate, and prosecute unfair-labor practice and representation proceedings. (2) A Labor Appeals Board, established as "an independent agency in the executive branch of the Government," shall have the power to hear and decide cases. (3) The Attorney General shall have the power to direct and control litigation, except procedings before the Board. In our opinion this proposal strikes at the heart of administrative procedure. It abandons the principle that enforcement of legislation by the administrative process shall be accomplished through a single independent agency that can coordinate all essential steps in initial enforcement proceedings. We think it most inadvisable to undertake such a complete reversal of settled principles except upon a full study of the entire system of Federal administrative law. 10. MISCELLANEOUS PROVISIONS RELATING TO PROCEDURE 35 Section 3 (a) of S. 1264 proposed to reconstitute the Board, with one member appointed to represent employers, one to represent employees and one to represent the public. The Board is a quasi-judicial agency, not a mediation board. Its members should, therefore, all represent the public, rather than partisan interests. We turn now to a detailed discussion of the provisions of the various bills. III. PROPOSALS TO MODIFY THE PROVISIONS OF THE ACT DEFINING UNFAIR LABOR PRACTICES OF EMPLOYERS A. Bill S. 1000 S. 1000 proposes a number of drastic changes in the provisions of the act defining unfair labor practices. In general, these proposals curtail the rights of employees to protection from interference by the employer in self-organization, and allow the employer substantial leeway to favor and encourage one labor Discussed in sec. XI, infra. 34 Discussed in sec. XII, infra. Discussed in sec. XIII, infra. |