The Supreme Court has held in Labor Board v. Jones & Laughlin that the one-sidedness of the act is a matter of congressional policy which does not invade constitutional limitations.

It is true that the Supreme Court, speaking through Justice Brandeis, in Myers v. Bethlehem Shipbuilding Corporation (303 U. S., 41, 48, 49), said:

The grant of that exclusive power is constitutional, because the act provided for appropriate procedure before the Board and in the review by the circuit court of appeals an adequate opportunity to secure judicial protection against possible illegal action on the part of the Board. No power to enforce an order is conferred upon the Board. To secure enforcement, the Board must apply to a circuit court of appeals for its affirmance. And until the Board's order has been affirmed by the appropriate circuit court of appeals, no penalty accrues for disobeying it. The independent right to apply to a circuit court of appeals to have an order set aside is conferred upon any party aggrieved by the proceeding before the Board.

The order of the Board is subject to review by the designated court, and only when sustained by the court may the order be enforced. Upon that review all questions of the jurisdiction of the Board and the regularity of its proceedings, all questions of constitutional right or statutory authority, are open to examination by the court.

Now, someone might jump to the conclusion that there was your remedy, but it isn't, and for this reason:

This statement must be read with other decisions of that court in mind and with the decision in American Federation of Labor et al., v. National Labor Relations Board, decided by the Circuit Court of Appeals for the District of Columbia on February 27, 1939, where the court said:

Accepting, as we must, this restrictive definition (of a final order) and applying it to the case at hand, we hold that, though the decision here was required by the act to be made and to be made on the evidence and argument after judicial hearing, and though it was definitive, adverse, binding, final, and in this case struck at the very roots of petitioner's union and destroyed its effectiveness in a large geographical area of the Nation, it was not an orderTM because the act did not require it to be made in the language of command, and, hence, is reviewable-as was held in Shields case, supra, and in Utah Fuel Co. v. National Bituminous Coal Commission (U. S. — decided January 30, 1939)-only in an independent suit in equity commenced in a district court.

It is all very well for the court in this case to say that the order is reviewable, as was held in Shields v. Utah Idaho Central Railway Co. (83 U. S. (Law ed.), 170), and in Utah Fuel Co. v. National Bituminous Coal Commission (83 U. S. (Law ed.), 402); but it will be noted that, in the first case, while the court said, speaking through Chief Justice Hughes, that, while review of the order of the Interstate Commerce Commission might be had in a Federal district court, as the authority to make the order "was validly conferred upon the Commission, the question on judicial review would be simply whether the Commission had acted within its authority". and here in these labor cases the Board does act within its authority in determining the unit-and the decision in the Utah Fuel Company case, while holding that the equity jurisdiction of the Federal district court extended to a judicial review through the medium of an injunction of an order of the National Bituminous Coal Commission, it further held that, Congress having granted authority to the Commission, the Commission had the right to provide for the disclosure of confidential information contained in reports required by the act,

and affirmed the decision of the district court dismissing the bill for an injunction.

To put it a little differently, you have the right of review all right enough, but it doesn't do you any good. It is like the other court said in effect in the other case

You can do business all right enough, but if these fellows come along and prevent you from doing business, we can't help you because the National Labor Relations Act doesn't give any remedy.

If the employees, whose right to work is being denied by mass picketing; if the union which is being destroyed in the same manner; if the employer whose business is being wiped out by the picketing cannot appeal, as they cannot under the N. L. R. A., from an order which is not "final," each will in many cases, when he seeks the aid of a court of equity, be denied relief, because of the provisions of the Norris-LaGuardia Act and the decisions of the United States Supreme Court in New Negro Alliance v. Grocery Co. (303 U. S. 552), and Lauf v. E. G. Shinner & Co. (303 U. S. 323), on the ground that they cannot bring themselves within the exceptions set forth in that act.

The result is that, while the Norris-LaGuardia Act remains in force, while the provisions of the N. L. R. A. remain as they are, an individual employee, a union, an employer, may each be deprived of his property, of his liberty.

Three cases showing that this contention is correct are the Zirkin case, the Longshoremen's case, and the Harris case. In each of these cases, the courts held that, under the Wagner Act, there could be no appeal, no review, for the reason that there was no "final order" or the final order was withdrawn by the Board.

If judicial review is sought by an independent suit in equity, as suggested in the Longshoremen's case, the injured party, employee, union, or employer, will be met by the argument and by the decisions in the Utah Fuel Co. and Shields cases, that, the N. L. R. A. being constitutional (Labor Board v. Jones & Laughlin Steel Corporation (301 U. S. 1)), Congress having given the N. L. R. B. authority to determine the unit and certify representatives for collective bargaining and the Board having acted within the scope of that authority, its decision must be sustained.

Such must be the result unless the court is prepared to hold that the N. L. R. A., as so interpreted, is unconstitutional, because, as so interpreted, it is contrary to the fifth amendment.

The remainder of my contention is merely a statement that there should be incorporated within the terms of the new law, interpretations placed upon the present act by the Supreme Court insofar as Congress sees fit to adopt those interpretations.

The CHAIRMAN. By that statement, Mr. Hoffman, do you mean you would read right into the act an interpretation which the Supreme Court has made in regard to it?

Mr. HOFFMAN. Yes.

The CHAIRMAN. And you would turn a court's interpretation into an amendment of the act?

Mr. HOFFMAN. If Congress thought it was the proper interpreta

tion.

The CHAIRMAN. Well, hasn't the courts' interpretation already done that?

Mr. HOFFMAN. Well, in view of Mr. Justice Frankfurter's statement in the tax case-in substance, that the Constitution was what the Court sitting at the time thought it was-in view of the fact that the majority opinion of the Court as to these interpretations of the act, might, in the course of 6 months or a year or two, be minority opinions, and Congress, being charged with the duty of writing the law, in my judgment we should leave no more loopholes in it that can be wiped out.

The CHAIRMAN. I grant you that. I think we should leave no loopholes in any law if it is possible to leave them out, but when we get to the place of turning the Supreme Court interpretation, which is more or less binding upon every administrative officer, into an actual amendment to the act, haven't you merely got yourself into a continuation of the same sort of difficulties, because the Court may act upon this amendment again, may it not?'

Mr. HOFFMAN. Yes; but as the Court has said so many times, if they can in some manner learn what Congress is trying to do, they will give effect to that effort on our part.

For example, I might cite you this now. Upon the reenactment or the amendment there should be a provision that those engaged in sit-down strikes and the unlawful destruction of property lose their status as employees and need not be reemployed nor compensated for wages not earned after the commission of such acts.

Now, the Court has held that, but two Justices dissented. Suppose the membership of the Court changes in the next year or two, and they think differently, then we let the Court make the law instead of Congress making the law.

The CHAIRMAN. Well, is there any way, by an act of Congress, of avoiding that Court-made law? If we have got some key to that, I think that we will have made great progress this afternoon. [Laughter.]

Mr. HOFFMAN. Yes, yes. Well, the Court itself, in two or three of its decisions that I have quoted, said that the remedy was with Congress, not with the Court; that we made the law and they could only give effect to it as we made it; and we, having denied in all representation cases, the right of appeal, we having denied to the employer the right to call for an election, rather not having denied it but not having given it to him, the Court couldn't go ahead and legislate, and certainly, if we approve of the interpretation of a law which we have enacted and when the law is rewritten, we write that interpretation into the law, practically in the words of the court decision, there will be no excuse for the Court subsequently, even though there be a change in membership, construing the law in a different mannergiving it a meaning different from that which they said in the first instance it had.

Now my point is, as an example, here is one more:

A provision that, when the employer and the employees' representatives have negotiated for a reasonable length of time, or where the positions of the parties are so diametrically opposed that there appears to be no reasonable hope of a compromise, the requirement as to collective bargaining has been satisfied. Now, the Supreme Court held that in the Enameling case, decided on the 27th of January or February-January, I think, they held that-but two of the Justices dissented. And my position is that if

we believe with the majority, if Congress believes with the majority, if we think that is a good interpretation, then let's write it in the law in so many words, so that some examiner, some board, can't hereafter say, "Well, we will take another chance and maybe the Justices have changed their minds."

Because it doesn't make any difference what the Justices think if they can once ascertain what we were trying to do and did do.

Upon the reenactment of the N. L. R. A., there should be incorporated within its terms the interpretations placed upon the present act by the Supreme Court, insofar as the same will aid in furthering the purpose of the act, or in clarifying its terms, including, among others, the following:

(a) A provision that those engaging in sit-down strikes and the unlawful destruction of property lose their status as employees and need not be re-employed nor compensated for wages not earned after the commission of such acts.

(b) A provision that, when the employer and the employees' representatives have negotiated for a reasonable length of time, or where the positions of the parties are so diametrically opposed that there appears to be no reasonable hope of a compromise, the requirement as to collective bargaining has been satisfied.

(c) A provision that the Board has no authority to inflict a punitive penalty upon the employer, except as that penalty is explicitly defined and imposed by the language of the act itself.

(d) A provision that the Board has no authority to invalidate a contract entered into between an employer and representatives for collective bargaining selected by a majority of the employees.

(e) That findings of fact by the Board will not be sustained unless they are supported by "evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred."

(f) There should also be a provision, although the Supreme Court has not passed upon this proposition, that the unit from which representatives for collective bargaining are to be selected should be limited to one employer in one locality and shall be embraced within the limits of the municipal corporation in which the employees are working.

To aid in the purpose, in the lessening of the causes of labor disputes affecting or burdening interstate or foreign commerce, H. R. 4990 has been introduced in the House.

Its passage will in a large measure secure to employees the rights set forth in section 7, protect employers and in no way injure labor organizations whose sole purpose is to see to it that the worker is at all times made secure from oppression on the part of employer or labor racketeer.

I wish to thank the committee.

The CHAIRMAN. Mr. Hoffman, we wish to thank you too, but you have introduced an amendment in the House to this act, have you not?

Mr. HOFFMAN. I introduced a bill which would repeal this act for the purpose of getting rid of the present Labor Board, reenacting those provisions of the law, the present act, many of which are good and adding to that act certain things which I thought would tend

to make it still better by giving not only to the employer the right to call for an election, but to employees who did not want to be represented by the unit designated by the Board, the opportunity of challenging the Board's findings.

The CHAIRMAN. Have we a companion amendment to yours on our side?

Mr. HOFFMAN. No; mine wasn't inspired by any independent union, any group of employees, any manufacturers' associations, any chamber of commerce. It is just something that, as a small-town lawyer, reading over these various acts and these decisions of the Court, Í thought might be some contribution.

The CHAIRMAN. Your bill is before the Committee on Labor in the House now, is it?

Mr. HOFFMAN. Yes.

The CHAIRMAN. And will it be considered therein?

Mr. HOFFMAN. I wouldn't know.

The CHAIRMAN. Have you a copy of it with you, Mr. Hoffman?

Mr. HOFFMAN. If I haven't, I will furnish a copy.

The CHAIRMAN. I would like to have a copy in the record. Senator Burke would, and I know the rest of us would.

The reporter will see that it is included here at this point.
Thank you very much, Mr. Hoffman.

(H. R. 4990 is as follows:)

[H. R. 4990, 76th Cong., 1st sess.]

A BILL To repeal the National Labor Relations Act and to diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce, to create a National Labor Relations Board, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

FINDINGS AND POLICY

SECTION 1. It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by furthering the development of friendly and mutually fair labor relations, by protecting the practice and procedure of collective bargaining and by protecting the exercise by all workers of full freedom of association, selforganization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

SEC. 2. When used in this Act

DEFINITIONS

(1) The term "person" includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.

(2) The term "employer" includes any person acting in the interest of an employer, directly or indirectly, but shall not include the United States, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as employer), or anyone acting in the capacity of officer or agent of such labor organization.

(3) The term "employee" shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of any employer's unfair labor practice, as defined in Section 8 hereof, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in