Senator DAVIS. You have 10 conciliators under the National Labor Board, you have 30 in the Department of Labor, in the Division of Conciliation; that is 40. Why could not they be all together? This is all industry, your troubles all come from industry, and they are in touch with industry, they have the machinery to reach industry, and the men who are affected by it know that it is the Labor Department and they would want to go there to have it adjusted.

The CHAIRMAN. Senator Wagner would like to ask a question. Senator WAGNER. Professor, in some of the questions that have come before the Labor Board for judicial determination, there is the implication of cases coming before the United States Supreme Court? I mean there are great property rights involved, and they are important questions of national policy that are involved, which are way beyond a mediator in a department, and would not it be almost like attempting to put the United States Supreme Court, a body of that type, or the Interstate Commerce Commission as a bureau in a department, with these great industrial questions, which are the most important, I think, now in our whole economic life coming up for a solution? Would a bureau in a department be the proper place for the solution of these great controversies?

Mr. HANDLER. I should think not, Senator.

Senator DAVIS. After all, wouldn't it be this, that the parties who are aggrieved, who are depending on a decision from the National Labor Board, have the right to appeal to the Supreme Court, and after all the National Labor Board is more or less a bureau in the Government, compared to the Supreme Court of the United States? Mr. HANDLER. I think it is going to develop in time as the ultimate tribunal for the settlement of industrial disputes.

Senator WAGNER. I do not think the Senator is sufficiently familiar with the work of the board.

Senator DAVIS. Couldn't you have just as competent men in the Division of Conciliation as you have in the National Labor Board?

Mr. HANDLER. I do not believe it could work that way without the independence that is necessary.

The CHAIRMAN. Has the amount of this work, I will ask you, Senator Wagner, grown in tremendous volume since the N.R.A.? Senator WAGNER. Yes.

Mr. HANDLER. Oh, yes.

The CHAIRMAN. I mean the work that the Department of Labor performed in the past is insignificant with the tremendous amount of work that has come out of the N.R.A.

Mr. HANDLER. The volume of work increased tremendously. It was entirely beyond the power of the Department of Labor to handle it.

Senator DAVIS. How many workers have you had out on strike at one time under the N.R.A.?

Mr. HANDLER. I do not believe any such figures have ever been collected, Mr. Senator.

Senator DAVIS. Could you give the Committee an estimate?
Mr. HANDLER. I am afraid I could not.

Senator DAVIS. What would be your highest estimate of the number that were out on strike at any one time under the N.R.A.?

Mr. HANDLER. I could not estimate it, because there are strikes that occur in industries that are not under codes, local strikes and national strikes, and the situation varies from hour to hour.

The CHAIRMAN. I suppose, Senator, it would be more important, perhaps, to know the number of strikes, rather than the number of employees.

Senator DAVIS. I am asking that for my own information.
The CHAIRMAN. Or the percentage.

Senator DAVIS. Would you have 1,200,000? Have you had that many out at one time?

Mr. HANDLER. I should think it would not reach that magnitude. Senator DAVIS. Well, I have seen it in the Department of Labor, with the entire coal and railroad industries closed down, and that was satisfactorily adjusted by the Department of Labor.

Mr. HANDLER. Well, the President, with the aid of Congress established in the railroad

Senator DAVIS. Just a minute now. We are talking about the Department of Labor not being qualified to adjust labor disputes. I have seen the textile industry on strike, and they adjusted it. I have seen the entire coal fields down, and they adjusted it. I have seen pretty nearly the entire Brooklyn shoe industry out on strike, and they adjusted it. I have seen nearly every ship that came into our ports, tied up by strike, and they adjusted it. I have seen the glass industry at a standstill, and they adjusted it.

Mr. HANDLER. Mr. Senator, I yield to no one in my high and exalted respect for that division in the Department of Labor. The precedent for this bill is the Railway Labor Act, where you do have an independent agency. The purpose of this body, don't you see, is primarily judicial, to pass upon the violations of the statute, and it is mediatory where the Department of Labor has been unable to effect a settlement. The fact remains that sometimes the Department is unable to effect a settlement, and in such case you need a Board of this composition to bring about a proper settlement.

Senator DAVIS. Well, let us take the Standard Oil, for instance. They have a collective bargaining scheme in which the Secretary of Labor is the last word, is the so-called "Supreme Court" of the Standard Oil industry. I know for 12 or 13 years, since that has been put into effect, there has not been an appeal from the Secretary of Labor to the Supreme Court of the United States. They, the Labor Department, have adjusted all these disputes in the Standard Oil, as well as those strikes in other particular industries. I cannot quite understand, if there is an appeal to be taken, why it could not go from the Labor Department to the Supreme Court, as well as it could go from the Labor Board to the Supreme Court.

The CHAIRMAN. What is the wish of the committee? Would you like to sit beyond the present hour? Perhaps we ought to finish with this witness anyway.

Let me say, Senator, I think if it is possible we ought to try to work out legislation that will establish some governmental agency that will prevent or arrest the losses and disturbances that result from strikes, by settling threatened strikes.

Senator DAVIS. Mr. Chairman, I am in accord with you.

The CHAIRMAN. It is rather easy to settle a strike after it happens, because one or the other has got to give in ultimately.

Senator DAVIS. That is right.

The CHAIRMAN. What we should seek is the creation of a governmental organization that will prevent strikes, that will check them before the workers are out on the street and their families obliged to suffer.

Senator DAVIS. I am in accord with you on that. I would like to ask one other question before we adjourn, if I may. Is it your idea that this tribunal, in the matter of adjusting industrial disputes, be more or less of a supreme court in industry, to be a part of the judicial system of the country?

Mr. HANDLER. No; it is an administrative agency with the power to find facts. A full and ample court review will be provided for by the statute.

Senator WAGNER. The bill, if the Senator will take the time to read it, clearly sets forth exactly what the purpose of the creation of the board is.

Senator DAVIS. I desire to say to the Senator that I have spent more time reading this bill than any bill pending in Congress, because I believe this bill is very close to the hearts of the working men and women of America. It is for that reason that I am interested.

Senator WAGNER. I am glad to have the Senator's cooperation. Senator DAVIS. I have always given the Senator my cooperation in these matters, and as I understand the administration, they want friendly criticism and wholesome suggestions, in order that we might have a perfected bill.

The CHAIRMAN. The chairman is glad to see the spirit of the Senate prevailing in the committee.

Can you finish in a short time, Mr. Handler? We have diverted you, I am afraid.

Mr. HANDLER. I think I can finish in 5 or 10 minutes.

The CHAIRMAN. Proceed.

Senator DAVIS. I will not interrupt you any more.

The CHAIRMAN. Your interruptions are helpful, Senator.

Mr. HANDLER. For the enforcement of the law, added powers are needed. Enforcement, to be effective, must be speedy. Under the present statute, interminable delays have resulted from the fact that numerous administrative hearings have been held by agencies without power to enforce their decisions. The courts cannot be relied upon exclusively for the enforcement of legislation dealing with the delicate problems of industrial relations. Hence the need of an administrative agency with the power to issue orders enforcible in the courts.

It has been claimed that unprecedented powers are vested in the proposed board. This criticism springs from a misconception of the functions and nature of an administrative body. The procedure of an administrative body must be flexible. If it is to be effective, it must not be restricted by the technical rules of pleading, practice, and evidence, which prevail in the courts. It must have the power to proceed on its own motion, or upon complaint. It must apprise the respondent of the nature of the offense with which he is charged, it must afford him a full and fair hearing, its order must be definite and precise and the bill so provides-but there is no need for its pleadings possessing the attributes of criminal pleading, or for its hearings to be as formal as a court trial. It must not be forgotten that the orders of the board are not self-executing; they can only

be enforced in the courts and they will only be enforced if the constitutional rights of the parties to a fair hearing are scrupulously observed. The board can merely proceed upon the evidence submitted, and an order which is not based upon the evidence would not stand up in the courts.

The administrative provisions of the statute are modeled upon those of similar administrative agencies created by Congress with some modifications designed to avoid some of the difficulties experienced by such agencies.

The power to compel the attendance of witnesses and the production of books and papers is no broader than those habitually conferred upon administrative bodies. The complaint must state the general nature of the offense charged. The complaint may be amended during the hearing-but so may court pleadings under our modern procedure in the absence of surprise. It is unthinkable that the Board would not afford a full opportunity to the parties to respond to the issues developed at a hearing. If it failed to do so, no court would affirm its rulings. Effective administrative action requires an informal procedure, but the right of court review adequately protects against any abuse of power.

The findings of fact by the Board should be conclusive upon the courts; otherwise there would be endless trials of the same issues, and there would be no point to an administrative determination. The bill provides for hearings either in Washington or the field in order to suit the convenience of the parties or witnesses, and to permit the adjustment of disputes and the investigation of cases in the locality where they occur. The bill contemplates hearings shortly after the service of the complaint, as speed is imperative in this type of dispute. Flexible provisions for service of processes have been adopted, but adequate notice is afforded.

The effectiveness of administrative bodies has frequently been impaired by the raising of objections in the courts which were not presented to the Board. In all fairness, the Board should have an opportunity to pass on all objections in the first instance. Similarly if after the order is presented to the court, it becomes desirable to adduce additional evidence, the case should be returned to the Board for further hearing.

An additional method of enforcement is provided for in the form of suits in equity by the Attorney General to restrain violations of the statute. There are cases where immediate relief may be needed and where there is not sufficient time for following the procedure prescribed for the issuance of orders.

The conflicting interpretations of section 7 (a) and the current misunderstanding of its provisions require supplementary legislation clarifying its provisions. The bill in sections 4 and 5 does little more than clarify section 7 (a) and accords with the administrative interpretation of the statute by the present Board. Section 7 (a) confers. the right of collective bargaining upon employees; it does not expressly impose reciprocal obligations upon employers. Nor does it define collective bargaining. The bill, on the other hand, in section 5 (2) makes explicit what is implicit in 7 (a), namely, that employers are obligated to exert every reasonable effort to make agreements with their employees. Section 7 affords freedom in the choice of representatives, but it does not expressly provide that employees may be repre

sented by a union. The bill defines representatives as including unions. The right of employees to be represented by those not in the company's employ has been questioned in many cases before the Board. The bill in section 4 clearly indicates that there is no restriction upon the choice of representatives.

The meaning of interference, restraint, and coercion as used in section 7 has caused much difficulty. The bill employes language that is at once broader and more specific. A troublesome question has been whether the initiation and participation of the management in the creation of company unions is an act of interference within the meaning of section 7 (a). This is cleared by the specific prohibitions in the bill against the participation of the management in any labor organization, which are predicated upon the principle that an agent

cannot serve two masters.

There are various questions of substantive law covered by the statute which I should like to discuss, but as time is lacking, I shall merely enumerate them, and I shall be happy to discuss them at some future time, such as

(1) Recognition of representatives (sec. 5 (2)).

(2) Discrimination regarding wages, hours, tenure of employment, reinstatement.

(3) Validity of closed-shop agreements.

(4) Effect upon company-union plans formulated in anticipation of the statute. (See sec. 304 (b).)

(5) Reinstatement of employees discharged for union activity.
(6) Premature elections by employers to prevent unionization.
(7) Participation of strikebreakers in elections.

(8) Payment of back pay in cases of discriminatory discharges. (9) Validity of lock-outs to prevent unionization, and so forth. There are many technical questions of procedure and administrative action which I should be glad to discuss at a later hearing. The CHAIRMAN. We want to thank you very much. free to call on you again?

We will be

Mr. HANDLER. Yes, Mr. Chairman. I will leave the documents with the secretary.

The CHAIRMAN. Very well.

(The documents referred to by Mr. Handler are as follows:)

NATIONAL RECOVERY ACT (SEC. 7 (A) (B))

[PUBLIC NO. 67-73D CONGRESS]

[H.R. 5755]

AN ACT To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes

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

TITLE I-INDUSTRIAL RECOVERY

SEC. 7 (a) Every code of fair competition, agreement, and license approved, prescribed, or issued under this title shall contain the following conditions: (1) That employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; (2) that