LABOR RELATIONS

WEDNESDAY, FEBRUARY 9, 1949

UNITED STATES SENATE,

COMMITTEE ON LABOR AND PUBLIC WELFARE, Washington, D. C. The committee met, pursuant to adjournment, at 2: 40 p. m. in the committee room, United States Capitol, Hon. Elbert D. Thomas (chairman) presiding.

Present: Senators Thomas (chairman), Murray, Pepper, Hill, Neely, Douglas, Humphrey, Withers, Taft, Smith of New Jersey, Morse, and Donnell.

The CHAIRMAN. The committee will come to order.

Mr. Denham, please.

Senator Donnell, you may inquire.

STATEMENT OF HON. ROBERT N. DENHAM, GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD-Resumed

Senator DONNELL. Mr. Denham, in the course of the testimony last evening you were asked with respect to whether or not you furnished me with a memorandum concerning changes which you thought were desirable to be made in the Wagner Act, and your attention was called to a portion of page 5 of the testimony on July 23, 1947, before this committee.

During the course of that testimony at page 5 there appears this language, first, quoting from myself, addressed to you:

Would you tell us, please, whether or not you furnished me some few months ago with a memorandum concerning changes which you thought were desirable to be made in the Wagner Act?

Mr. DENHAM. Yes, sir.

Senator DONNELL. Do you recall whether in the Taft-Hartley Act any of those changes which you suggested are made?

Mr. DENHAM. I was very much gratified to find the major portion of those suggestions incorporated in the Taft-Hartley Act.

Mr. Denham, would you please state again just in order that we may get a starting place, where and when it was that this matter of the preparation of such a memorandum arose?

Mr. DENHAM. As I recall, Senator, it was along in the fall, and I think in the general neighborhood of Thanksgiving time in St. Louis. You were in an office there, and I was hearing a case; by virtue of our long-standing friendship, I got in touch with you and I think we had lunch together.

We discussed, as to me would seem natural, the work that I had been doing the Wagner Act-trial examiner operations in connection with

the Wagner Act, and the fact that you were on this Labor Committee. You suggested that-I think possibly-I do not know how it came about, whether it was one of those things that you suggested or there arose out of some suggestion that I had to make-at any rate, you said that you would like very much if I could give you some assistance in making an analysis of the operations of the Wagner Act, and those spots in it which I thought could be strengthened or changes that could be made in it to advantage.

I indicated a willingness to give you any assistance I could along that line, and then you said, "Well, now, wait a minute, before you do that I do not want to be in a position of working under cover on this thing, and I do not want you to do a thing unless you clear it first with Mr. Herzog, the Chairman of the Board."

Well, that was perfectly in order, and I went on back to Washington, got terribly busy, and had to apologize to you later for not having supplied you with any information over a period of some 60 or 90 days. Then came the, I think it was what they call, the Burton-Hatch-Ball Act or one of those pieces of proposed legislation which contained a lot of matter that gave me a sort of guideline to use as a basis for commentary.

I prepared a running narrative commentary as to my thoughts in connection with that act, and the Wagner Act, and possibly some other things that were not in the Burton-Ball-Hatch Act, put them in the form of a memorandum, and in the meantime I had talked with Mr. Herzog, told him of the request, and he said, "Well, the Senator wants you to do that," and he said, "You ought to do it for him. You have my clearance on the thing. I would not publicize it, however." I have not publicized it except that which has been brought out in this matter. I sent Mr. Herzog a copy of the memorandum that I furnished you.

Senator DONNELL. Very well.

Mr. DENHAM. Yes.

Senator DONNELL. I would just like to ask Mr. Shroyer some questions. Let the record show that this is Mr. Thomas Shroyer, who, back in 1947, occupied what position, Mr. Shroyer?

Mr. SHROYER. Professional staff member of this committee.

Senator DONNELL. Did I turn over to you a memorandum which I had informed you I had received from Mr. Denham?

Mr. SHROYER. You did.

Senator DONNELL. Relating to the proposed labor legislation, and his suggestions with respect thereto?

Mr. SHROYER. Yes.

Senator DONNELL. Would you tell us, Mr. Shroyer, when it was, approximately, that I turned it over to you, this memorandum?

Mr. SHROYER. I can place it pretty closely, Senator, because last night when the subject came up, I remembered at the time you turned it over to me, I compared it with an analysis of the then committee print that had been considered in executive session of this committee, and I have checked to find that analysis this morning, and I find it was dated April 7, 1947.

Senator DONNELL. May I see that analysis for just a moment, Mr. Shroyer?

Mr. SHROYER. I remember that we took the memorandum from Mr. Denham to you and noted for you on the analysis on the margin,

wherein the Denham suggestions or some form of them were considered in the committee print. I do not remember that there were any that did not also appear in the committee print at that time. So it is sometime between April 7 and, I think it was, April 13 or 16 that the bill went to the floor.

Senator DONNELL. The bill went to the floor-if you will just help me with this tabulation that appears in this book

Mr. SHROYER. April 17.

Senator DONNELL. 1947.

Mr. SHROYER. Then, my best recollection would be right around April 10 you gave this Denham analysis to me.

Senator DONNELL. Yes. What do you say that you found with respect to this analysis of the tentative committee print of April 7, 1947, which you just handed me? What did you find with respect to that and the Denham memorandum?

Mr. SHROYER. Well, simply, Senator, that I had no difficulty in showing in the margin analysis wherein all of the Denham suggestions, where they did jibe with anything we had in the committee print could all be found there.

Senator DONNELL. Did you find that substantially all of the Denham suggestions were found in this analysis of the tentative committee print of April 7, 1947?

Mr. SHROYER. Not at all in the same form, but in substance we found all of them.

Senator DONNELL. I see.

Mr. Chairman, I introduce into the record this analysis of the tentative committee print of April 7, 1947, and ask that it be incorporated therein.

The CHAIRMAN. It will be printed.

(The analysis of tentative committee print of April 7, 1947, follows:)

ANALYSIS OF TENTATIVE COMMITTEE PRINT OF APRIL 7, 1947 This committee print is a comprehensive bill containing six titles dealing with the following subjects:

1. Amendments to the Wagner Act.

2. Federal Mediation Service.

3. Monopolistic Practices of Labor Organizations.

(a) Restrictions on union welfare funds and on the check-off of union dues.

(b) Prohibition of certain types of boycotts and jurisdictional strikes.

(c) Providing for suability of labor organizations.

(d) Registration of labor organizations and requirement that financial statements be furnished to members.

4. Recess Study by Joint Committee of Senate and House.

5. National Emergencies Created by Labor Disputes.

6. Definitions.

TITLE I

In order that the amendments to the National Labor Relations Act may be more readily understood, the committee print has incorporated the amendments into the present act in italics. Provisions which have been omitted from the present act are in linetype. The changes in the present act will be considered as they appear.

Section 1: The addition of the word "some" before the word "employers" on page 1 is self-explanatory. The new paragraph which has been inserted on page 3 is to broaden the general statement of policy to cover the amendments creating remedies for unfair labor practices by labor organizations.

Section 2: The several amendments to the definitions section may be summarized as follows:

(1) The meaning of the term "person" has been amended to make it clear that it includes labor organizations. Because of the inclusion of unfair labor practices by unions in section 8, as amended, and the use of the word “person” in section 10, this definition required clarification.

(2) The term "employer" has been amended by the insertion of language which makes it clear that the Board may deem an employer association to be an employer, provided the individual employers in such an association have voluntarily delegated their authority to bargain collectively with their employees to such an organization. Under current decisions of the National Labor Relations Board, the Board itself has reached such a construction, relying on the phrase in the existing statute "acting in the interest of an employer." Although this interpretation has been challenged (see Matter of Ship Owners Association, 7 N. L. R. B. 1002; (103 F. (2) 993); 308 U. S. 401) the Supreme Court has never passed squarely on the question. Consequently, this amendment merely approves of those administrative interpretations. By the inclusion of the word "voluntarily," however, the bill makes it clear that the Board cannot treat an employer association as an employer insofar as any individual employer has failed to delegate the association to act as his bargaining representative or has withdrawn authority from it to act in that capacity. It should also be noted that an association is deemed to be an "employer" only to the extent that its members are in the same metropolitan district or county.

(3) The principal amendment to the definition of the term "employee" is that excluding any individual employed as a supervisor. The proposed amendment does not affect personnel, having negligible supervisory duties but does exempt from the act employees who. under decisions rendered by the Board itself, would be excluded from bargaining units of the rank and file. The principal result of this amendment would be to prevent management representatives from being subjected to the discipline of unions. The Board itself reached this result in the Maryland Drydock case (49 N. L. R. B. 733), but this decision was subsequently overruled. The position of the present Board majority is that under the statute the Board has no discretion to exclude any supervisory personnel, no matter how high their position is in the managerial hierarchy. This construction is based upon the theory that the definition of employee in the act now excludes only three specific classes of persons: (1) Agricultural laborers; (2) domestic servants, and (3) children or spouses of employers.

The language in the proposed amendment is patterned after that contained in the Ellender amendment to last year's Case bill which was adopted by a majority vote of the Senate and concurred in by the House. It differs from it in three respects: (1) It includes guards as well as supervisory employees and time study men; (2) eliminates the requirement that the supervisor must have five employees in his charge, and (3) eliminates the exemption with respect to supervisors covered by collective agreement in 1935. It will be noted, however, that this amendment does not mean that employers cannot still bargain with such supervisors and include them, if they see fit, in collective-bargaining contracts. All that the proposal does is to prevent employers being compelled to acocrd supervisors the anomalous status of employees.

Another minor amendment to section 2 (3) is that it clarifies the exemption for agricultural laborers by making the term conform to that in the WageHour Act. This should be read in conjunction with the proposed section 2 (15), which subsection is taken verbatim from the Wage-Hour Act. This definition, so far as the Wagner Act is concerned, was adopted by Congress in the current appropriations act.

(4) The term "representative" is amended so as to refer to either independent unions or locals of a national or international organization in contradistinction to the parent body. At the present time the Board, if the labor organization so requests, will certify a national or international union as well as a local. As will subsequently appear, the effect of this modification of the definition will have the effect of making the Board certify locals. (See secs. 8 and 9.)

(12) This is a subsection, containing the definition of "supervisor" which has already been described under (3).

(13) and (14). These amendments add two new definitions to the corresponding section in the existing act by defining the terms "plant" and "professional employee." The significance of these amendments appears in section 9, which is amended by this bill, which requires separate voting units of professional employees and separate tabulation (where a multiple-plant unit is being held appropriate) of the employees in each plant.