poses", approved June 16, 1933 (Public, No. 67, 73d Cong.), and in order to effectuate the purposes of that Act, it is hereby ordered that:

The National Labor Board, created on August 5, 1933, to "pass promptly on any case of hardship or dispute that may arise from interpretation or application of the President's Reemployment Agreement", shall continue to adjust all industrial disputes, whether arising out of the interpretation and operation of the President's Reemployment Agreement or any duly approved industrial code of fair competition, and to compose all conflicts threatening the industrial peace of the country. All action heretofore taken by this Board in the discharge of its functions is hereby approved and ratified.

The powers and functions of this Board shall be as follows:

1. To settle by mediation, conciliation, or arbitration all controversies between employers and employees which tend to impede the purposes of the National Industrial Recovery Act; provided, however, the Board may decline to take cognizance of controversies between employers and employees in any field of trade or industry where a means of settlement, provided for by agreement, industrial code, or Federal law, has not been invoked.

2. To establish local or regional boards upon which employers and employees shall be equally represented, and to delegate thereto such powers and territorial jurisdiction as the National Labor Board may determine.

3. To review the determinations of the local or regional boards where the public interest so requires.

4. To make rules and regulations governing its procedure and the discharge of its functions.

WHITE HOUSE, December 16, 1933.

FRANKLIN D. ROOSEVELT.

EXECUTIVE ORDER

By virtue of the authority vested in me under Title I, of the National Industrial Recovery Act, approved June 16, 1933 (Public, No. 67, 73d Cong.), and in order to effectuate the policy of said Act, I, Franklin D. Roosevelt, President of the United States, do hereby provide for and direct the enforcement of certain provisions of Section 7 (a) of said Act and the conditions contained therein, as incorporated in, and made a part of, any code of fair competition, or agreement heretofore or hereafter approved or prescribed by me in the following manner:

1. Whenever the National Labor Board shall determine in such manner as it sees fit, that a substantial number (as defined in the discretion of the Board) of the employees, or of any specific group of employees, of any plant or enterprise or industrial unit of any employer subject to such a code or agreement, have requested the Board to conduct an election to enable them to choose representatives for the purpose of collective bargaining or other mutual aid or protection in the exercise of the rights assured to them in said Section 7 (a), the Board shall make the arrangements for and supervise the conduct of an election, under the exclusive control of the Board and under such rules and regulations as the Board shall prescribe. Thereafter the Board shall publish promptly the names of those representatives who are selected by the vote of at least a majority of the employees voting, and have been thereby designated to represent all the employees eligible to participate in such an election for the purpose of collective bargaining or other mutual aid or protection in their relations with their employer.

2. Whenever the National Labor Board shall have determined upon an investigation, or as the result of an election, that the majority of the employees of an employer, or the majority of any specific group of employees, have selected their representatives in accordance with the provisions of said section 7 (a), and shall have certified the names of such representatives to their employer, and thereafter upon complaint or on its own motion, the Board shall determine that such an employer has declined to recognize or to deal with said representatives, or is in any other way refusing to comply with the requirements of said section 7 (a), the Board shall report its determination promptly to the Administrator for Industrial Recovery for appropriate action.

3. The powers and duties herein conferred upon the National Labor Board are in addition to, and not in derogation of, any powers and duties conferred upon such Board by any other Executive order.

THE WHITE HOUSE, February 1, 1934.
Approval recommended.

FRANKLIN D. ROOSEVELT.

HUGH S. JOHNSON,

TEXT OF THE EXECUTIVE ORDER OF FEBRUARY 1, 1934, AS AMENDED FEBRUARY 23, 1934

By virtue of the authority vested in me under Title I, of the National Industrial Recovery Act, approved June 16, 1933 (Public, No. 67, 73d Cong.), and in order to effectuate the policy of said Act, I, Franklin D. Roosevelt, President of the United States, do hereby provide for and direct the enforcement of certain provisions of Section 7 (a) of said Act and the conditions contained therein, as incorporated in, and made a part of, any code of fair competition, or agreement theretofore or hereafter approved or prescribed by me in the following manner:

1. Whenever the National Labor Board shall determine, in such manner as it sees fit, that a substantial number (as defined in the discretion of the Board) of the employees, or of any specific group of employees, of any plant or enterprise or industrial unit of any employer subject to such a code or agreement, have requested the Board to conduct an election to enable them to choose representatives for the purpose of collective bargaining or other mutual aid or protection in the exercise of the rights assured to them in said Section 7 (a), the Board shall make the arrangements for and supervise the conduct of an election, under the exclusive control of the Board and under such rules and regulations as the Board shall prescribe. Thereafter the Board shall publish promptly the names of those representatives who are selected by the vote of at least a majority of the employees voting, and have been thereby designated to represent all the employees eligible to participate in such an election for the purpose of collective bargaining or other mutual aid or protection in their relations with their employers.

2. Whenever the National Labor Board shall find that an employer has interfered with the Board's conduct of an election or has declined to recognize or bargain collectively with a representative or representatives of the employees adjudged by the Board to have been selected in accordance with Section 7 (a) or has otherwise violated or is refusing to comply with said Section 7 (a), the Board, in its discretion, may report such findings and make appropriate recommendations to the Attorney General or to the Compliance Division of the National Recovery Administration. The Compliance Division shall not review the findings of the Board but it shall have power to take appropriate action based thereon. FRANKLIN D. ROOSEVELT.

THE WHITE HOUSE, February 23, 1934.
Modified February 23, 1934.

The CHAIRMAN. Is Mr. Slichter here?

Mr. Robert L. Hale, professor of law at Columbia University.

STATEMENT OF ROBERT L. HALE, PROFESSOR OF LAW AT COLUMBIA UNIVERSITY

The CHAIRMAN. Mr. Hale, I understand you would like to be heard today so you will not have to remain in Washington until tomorrow morning.

Mr. HALE. Yes.

The CHAIRMAN. All right, Mr. Hale, we will be glad to hear you. What is your full name?

Mr. HALE. Robert L. Hale.

The CHAIRMAN. And your profession?

Mr. HALE. Associate professor at Columbia University.

The CHAIRMAN. Do you hold any public position?

Mr. HALE. No.

The CHAIRMAN. Are you interested in this legislation?
Mr. HALE. Yes.

The CHAIRMAN. We will be glad to have your views about this bill. Mr. HALE. I am heartily in accord with the main purpose of this bill.

The CHAIRMAN. Could you, for the record, please, give us your background, your interest in public affairs, your law research work?

Mr. HALE. I have been teaching a law course in industrial relations, and I am somewhat familiar with the cases in the courts dealing with it.

The CHAIRMAN. You have specialized on the interpretations of industrial relations by the courts?

Mr. HALE. Yes.

The CHAIRMAN. Senator Wagner vouches for your standing as a high-grade lawyer.

Mr. HALE. Thank you.

The CHAIRMAN. You may proceed, please.

Mr. HALE. I am heartily in favor of the general purposes of the bill. I think there are certain objections which a great many people raise to any bill of this kind, which perhaps ought to be mentioned briefly.

There is frequently a great deal of talk to the effect that a closed shop destroys the freedom of the worker to be independent of a union. if he wishes to be. Well, to a certain extent, of course, it does, but in a complicated modern society like ours, nobody is going to be entirely free. If a man wants to work in a steel plant, he does not just go out and work according to his own ideas about how it should be worked; he has to join an organization. Normally, in the case of a steel plant, he becomes an employee of a steel company, and then he has no freedom as to the details of his work whatever; he is a nonvoting member of a society. Now, if he belongs to a union in a closedshop industry, it is perfectly true he has no freedom to work without being a member of the union, but he has a little more freedom through the brotherhood of his union against the restraint imposed upon him. by the employer.

Now, of course, any system of organization is liable to have faults at times. A union itself may possibly have faults, and sometimes it has been oppressive of its members, but it is in any event a choice between evils. Government of any sort has certain evils, or may have at particular times, but the only alternative is anarchy, where the evils would be much greater. If he is subject to be governed by the rules of his union he presumably has a little more control over what those rules are than if he is governed solely by the rules laid down by his employer. So I think the moment you reflect a little bit on that notion of individual freedom, you see that it breaks down.

Now, another objection that will be raised will be as to the constitutional rights of the employer under this bill. There are two parts of the Constitution which will undoubtedly, I presume, if this bill is passed, be raised, at some time or another, in the courts. One is as to whether the Federal Government is taking over powers which belong properly to the States, and the other is, where that is not the case, is it depriving the employer of liberty or property without due process of law, contrary to the fifth amendment?

Now, on the Federal-State proposition, I am not in a position to say very much. If you look at the document, the constitutional document-I mean the paper, the Constitution-there is nothing in there which would tell you one way or another whether this was a usurpation of State powers. Congress has power to regulate interstate commerce. Now we know under court decisions that they sometimes can regulate intrastate railroad rates if those will have a bearing on interstate rates.

Now we know the court has made certain other limitations, but as I say, I am not familiar with all the decisions, but as far as the language of the Constitution goes a court would be free to interpret this one way or the other, insofar as it affects an industry which is engaged in the manufacturing business within the State, with the idea of shipping its goods to other States later. But now the fifth amendment question will come in. If it is an unfair labor practice for an employer to discriminate against union men, and if that is penalized, or the board is given power to go to a court to get an injunction against it, why the question will be raised as to two cases which have been decided some years ago by the Supreme Court, Adair v. The United States (205 U.S. 161), and Coppage v. Kansas (236 U.S. 1). In those cases, by a divided court, by a division among the judges, the majority of the court held that the employer had a constitutional right to fire a man for any reason he wanted, and to insist, as a condition of his employment, that he sign what has been called a "yellow dog" contract, and the court there said to take away that right, at least to make it a crime to do that, was contrary to the fifth or fourteenth amendment, depending on whether it was the Federal Government or the State.

Now, I think it is fairly good evidence that the court has changed its views on that since then. In Coppage v. Kansas there were two dissenting opinions, one written by Justice Holmes and the second one written by Justices Day and Hughes, where they dissented seriously from the proposition that that kind of law was unconstitutional, and the general philosophy of the Day-Hughes opinion was that the purpose of this statute was not so much to interfere with the right of the employer as it was to protect the right of the employee to join a union, and the Congress or the State, as the case might be, had full power to protect that right by making it a crime for the employer to interfere with it through his right to discharge. Well, that was a dissenting opinion; but in 1930, in the case of the Texas-New Orleans Railroad v. Brotherhood of Clerks (281 U.S. 548), the opinion was rendered by Chief Justice Hughes, and there was no dissent, Mr. Justice McReynolds took no part in the proceedings, but he did not dissent; otherwise the court was unanimous.

The CHAIRMAN. Did that opinion recite the views of Mr. Justice Hughes when he was a single justice before his resignation?

Mr. HALE. In effect it did. It insinuated the same philosophy, although Justice Hughes was careful to say that he was not overruling Adair v. United States or Coppage v. Kansas, because he said this was not aimed at the right of the employer, the railroad company in that case, to discharge, but it was aimed to protect the right of the union, of the men to select their own representatives for the purposes of collective bargaining.

Well, the same thing, of course, was true in Coppage v. Kansas. I mean, we all know when a judge says he isn't overruling a case that it isn't inconsistent, that the court is not quite ready to repudiate it flatly, but when the distinction is one which is so exceedingly thin it indicates a tendency on the part of the court to limit those cases at least to the most narrow statement possible of their facts.

The CHAIRMAN. In other words, the court sometimes says it is not overruling when it is actually overruling.

Mr. HALE. Yes. Except you are not permitted to argue in the court later that the case has been flatly rejected. Sometimes the

court does flatly reject a case, quite frequently it happens, but at many other times without flatly rejecting it it distinguishes it so that there is no life left in it.

The CHAIRMAN. The Supreme Court can complain as well as the Senators.

Mr. HALE. Justice Hughes in that case said it would be a mockery. I can get his exact words here. He talks about the right of representation and then he said:

Courts are not required to ignore this right of the employees but could safeguard it and seek to make their appropriate collective action an instrument of peace rather than of strife. Such collective action would be a mockery if representation were made futile by interferences with freedom of choice.

That is exactly what Day and Hughes said in the Coppage case, that the right to join a union, which Justice Pitney for the majority recognized as existing, and they said the right is a mockery if the employer could make the exercise of it impossible.

Senator DAVIS. Just a minute.

Mr. HALE. Yes.

Senator DAVIS. I would take it for granted that you are in accord with the thought that the signing of what is known as the "yellow dog" contract would take us back to the feudal system.

Mr. HALE. Yes. I am not sure that I am putting it in exactly those words, because I am not quite sure what the feudal system was, but it is a good working phrase.

Senator WAGNER. Congress has declared itself only lately on that question.

Mr. HALE. Yes; in the Norris Act.

Senator WAGNER. Yes.

Mr. HALE. Now there is a further thing. Section 303 I think is very important to be retained, that "nothing in this bill shall be taken to diminish," I am quoting from memory, "the right to strike." It is conceivable, of course, that if a board passes on all things we do not know 15 or 20 years from now what sort of membership will be on that board, and if the union is absolutely precluded from striking against it you might have a pretty dangerous situation.

Senator DAVIS. But the right is not denied in the bill.

Mr. HALE. No; that is why I say it is very important to leave that section in, 303, because it it is not left in I think there is real danger that a number of judges, particularly in the lower courts, will construe it as if the setting up of this machinery made strikes improper, in fact, illegal. In fact, a great many courts, lower courts in New York, New Jersey, and elsewhere, have suggested that strikes under the N.R.A. are illegal. Why, you can search the statutes with a finetooth comb and you won't find anything, but judges may be able to find what you and I could not.

Now there are certain very important details in this bill which I think call for a change. There is one detail which is material, or one word which I think emasculates this bill entirely, if it stays, or at least would be an invitation to a court to emasculate it.

You all recall the history of the Clayton Act, what happened to it in the courts.

Senator DAVIS. Will you call our attention to that particular word?