I might also say that Mr. Browne and I appeared before the House committee on this same subject. We were told that some of the matters that we wanted to discuss, namely elections were collateral matters and should be taken up separately.

That may well be true, but I think we should point out that we are realists. The Wagner Act remained unchanged from 1934 to 1947 and then Taft-Hartley was not significantly amended until

1959.

Now in 1965 we are considering repeal of section 14(b) and I think we would be unrealistic to anticipate another opportunity to present this one problem on elections, National Labor Relations Board elections at any other time than now. In other words, we believe that this committee must consider the right of employees to a secret ballot election in any recommendation it may make to the Senate with regard to the repeal or modification of section 14(b). If Federal law is to permit compulsory membership throughout the United States, surely the union must represent the majority of employees.

We submit that under the present rules or decisions of the labor board, employers are ordered to bargain with the union which the majority of the employees do not wish to represent them.

How substantial those cases are with respect to the total volume of cases, I am not sure; perhaps 10 percent of the total.

Mr. Browne will wish to develop this point at some length, but first we would like to tell the committee why our membership feels so strongly that 14(b) should remain unchanged.

Now, proponents of the repeal of section 14(b) argue that they merely desire to create a situation where unions and employers may freely enter into compulsory membership contracts.

As a practical matter the word freely is a little bit of a misnomer. especially with respect to small business.

In my own practice I am mainly concerned with small business; I do not represent any large corporations. I have done a considerable amount of bargaining.

It has been my experience that we may have bargaining on wages and fringe benefits but there just is not any bargaining on union shop. An employer is reduced to the position of saying "Yes" or "No". If he says "No" and sticks to it, he must expect a strike or picketing. I have had clients who, as a matter of principle, insisted that there should be no compulsory membership features in a contract, but where they stuck to it I have never had a case that did not end up in a strike.

A retailer is more vulnerable to strikes and picketing than employers in other industries, because you see when a store is shut down or there is picketing some customers just will not cross picket lines, and to a retailer that is business that you never recoup, because some competitor is always ready to take care of your customers; you just do not get them back.

Therefore, I would say that the small retailer is more easily forced to agree to compulsory membership and dues, than perhaps any of the major manufacturing people.

That is also true of many of the giant retail chains.

Another point that I do not like to agree to, but most employers are inclined, especially small employers, to agree to a union shop

condition and a checkoff in exchange for a little more favorable package on the rest of the contract.

There again I am quoting from experience.

When I say I do not like to bring this out it is because in those situations the employees lose; they have traded union security for fringe benefits.

There is another place under present conditions where the employees lose, and that is where recognition is based on a card check. Even if the union does have a majority on cards, and an uncoerced majority, in that type of situation usually the card check comes at a time when the employees have never heard anything but one side of the argument; in other words, there has been no free speech as provided by section 8 of the law.

If the employee has heard both sides of the question I believe he is more informed and better able to cast his vote at an election.

Further, with respect to repeal of 14(b) we have heard proponents argue the old argument of 19 States versus 31 States. However, if this section is repealed Congress has taken away the right of 31 States ever to enact the so-called "right-to-work" law.

We are also told by Secretary Wirtz and by Mr. Biemiller yesterday, that 14(b) must be repealed in the interest of uniformity.

Well, we are not sure that there is always viture in uniformity. I suppose in the interest of uniformity Congress could pass a law that once a union is certificated everyone has to join the union, but I am sure a lot of people would object to that.

On the other hand, we could have uniformity if we had a national "right-to-work" law, and I am sure that does not have universal approval.

Really what we are getting at here is that this argument which we have heard from the proponents that a union shop is merely the carrying out the principles of majority rule. Well, it is the very existence of nonmajority in some cases which makes union shop and compulsory membership most objectionable.

The so-called sweetheart contract where the unions obtain compulsory membership contracts for quick recognition without expending any time and effort for organization is still with us.

The employees obtain little or nothing in the way of increased benefits. The union employer may go through the motion of a card check to make everything appear legal and proper and thus prevent another union more acceptable to the employees from obtaining bargaining rights. Card checks become discredited because of sweetheart contracts, but the NLRB has now returned to card checks and orders bargaining in the absence of n election.

It seems to us that proponents who argue that these contracts merely carry out the principles of majority rule could hardly object to legislation that makes it conclusively clear that there is a majority in the first instance.

Without belaboring the point and repeating arguments of others on the principles involved in the repeal of 14(b) I want to say that the American Retail Federation feels strongly that it should not be repealed or modified.

I notice Senator Javits has now come in. I would like to point out that on June 14, I believe S. 2133 was introduced in the Senate.

Let me say that I believe your bill deserves the most earnest consideration by this committee because you have recognized what I am trying to say here, that we have to be absolutely sure that the union represents the employees in the first instance if we are going to have a union shop.

I believe your bill also eliminates the only possible argument that could be made against this election requirement, that an employer might destroy a real majority by unfair labor practices before an election was held.

There is only one thing, Senator, that I am not sure that your bill would reach.

I have been involved in so many elections when the unfair labor practice consisted of merely a simple inquiry by a foreman (but he binds the employer)-"Did you go to the union meeting?" or "How did you vote?", or something like that. Under present NLRB cases that is enough to go through one of these card checks and order bargaining in the absence of an election.

I want to say one other thing with respect to the testimony that I have heard since I have been here yesterday and today, and that is that there has been some talk about the deauthorization election that is provided by section 9(e) 1.

All that does is say that when there is a union shop then the employees may obtain an election to deauthorize the union from entering into a union shop or a successive union shop.

All I can say about that is it sounds good but as a practical matter it just does not work. The reason it does not work is that the employees, in the first place cannot have the assistance of the employer in getting the required 30 percent; so they cannot do it on company property; they can hardly do it at the union hall.

They have marshaled against them all the forces of the union which wants a continuation of union shop, so I am not surprised when I checked the annual reports of the Labor Board and find that section 9(e)1 is used from 6 to 10 times a year, in all of the United States. So far as I am concerned that is a provision in the statute that might just as well not exist.

Senator JAVITS. May I ask a question there?
Senator MCNAMARA. Proceed.

PROPOSAL TO PROVIDE ELECTIONS IN LIEU OF "CARD CHECKS"

Senator JAVITS. I have to apologize for not being here all morning. I have had other committee meetings, and I am due on the Senate floor. I want to apologize to my own witness, Professor Sovern, for my being in that situation.

Would you feel that if we did amend the law to provide that there should be an election and that it should not just be left to the signed cards, would that in your judgment serve to equalize the situation more as between certification and deauthorization?

Mr. SHROYER. Yes. I am heartily in favor of any type of legislation which would permit an election in the first instance.

At the moment I am only answering what other people have said, there is an election possibly later. As a practical matter, Senator, I do not think there is.

You have that one, and also the other point that has been made, and it was made by Mr. Biemiller yesterday, that when we used to have in the law the old section 9(e), where you had to have an election before you could have a union shop, that unions won 59 percent of those elections.

I want to comment for just a moment on that one. I think in the first place that it can be made out that those cases were picked as ones that they could win, but above and beyond that you again have a situation where you are not really voting on the issue.

In other words, the union is in, they are bargaining, so a vote for a union shop becomes really a vote to give the bargaining committee more strength. It is almost like the situation in World War II, Senator, when we used to have the Smith-Connally strike vote elections and even during wartime there you had a vote to authorize a strike, but it was not the real issue.

I have conducted a lot of them, the vote was to give your bargaining committee more power. Therefore, I think the statistics on that type of election are rather meaningless.

Senator JAVITS. May I say this, what inspired me to raise the issue about card checks was the situation with respect to so-called racket unions. A racket union could be representing employees in a certain shop to the exclusion of a legitimate union.

We had that in New York in certain cases, where all of the employees wanted to go over to a well-established legitimate union, but were unable to get out of the trap they were already in being represented by a racket union.

Now the racket unions occupy a relatively small part of the field. But even if they occur in 3 percent of the cases it is still a desirable check and balance on racketeering in unionism to require an election which gives a moment of deliberation for the employer and the employee before their feet are on the flypaper-to wit, the union represents the workers just because it got them to sign cards. It is almost impossible to expect you to get evidence that quickly of coercion or the fact that muscle was used in getting the cards signed, and so on. You learn about those things later; but at least a little deliberation, a little opportunity for people to think it over may be helpful in keeping employees from getting into that kind of situation. Mr. SHROYER. Well, Senator Javits, I agree entirely that your bill would accomplish that purpose. To me it accomplishes a little more. Senator JAVITS. I am glad.

Mr. SHROYER. Because I think there are other situations where it is not a racket. I think these NLRB cases, and Mr. Browne is going to talk about them, I am about through, there are many cases where there is not a true majority.

Mr. Chairman, before I quit and turn it over to Mr. Browne, there is an article in the U.S. News & World Report, it runs two pages and is a résumé of all of these cases that we have in our brief and a lot of other ones. I have checked all the references, and I have read the cases. I would like to have it inserted in the record at this point. Senator MCNAMARA. Without objection, it shall be done. (The article referred to follows:)

[From the U.S. News & World Report, Mar. 15, 1965]

ANOTHER WORRY FOR EMPLOYERS

Should a union's right to represent workers in union-management negotiations be determined only by a secret ballot among those workers?

What are management's rights if an election is disregarded, or not even held? Can an employer be sure a union speaks for his workers if the Labor Relations Board says so?

In some cases, union "pledge cards"-not ballots are used to determine whether a union is supported by a majority of a firm's employees.

But are "pledge cards" a reliable guide?

In the following, a New York lawyer who is an authority on labor law examines a Government practice that has become controversial.

(By Woodrow J. Sandler, attorney, specializing in labor-management relations) If Congress amends the Taft-Hartley law at this session, there is one subject that should be high on the agenda. That is the National Labor Relations Board's power to determine a union's majority by a count of "pledge cards."

Under the law, every employer must recognize and deal with a union that represents a majority of his employees. To find out whether a majority wants the union, the Board uses either of two methods:

1. An election by secret ballot, or

2. A count of the signed union pledge cards.

In 1947, many practitioners in the labor-relations field thought that Congress had abolished the second method when it enacted Taft-Hartley.

In 1948 the Board itself said:

The Taft-Hartley law "prescribed the election by secret ballot as the sole method of resolving a question concerning representation." [Italic supplied.] It didn't turn out that way, however. When a union demands recognition, the employer still has no absolute right to a secret-ballot election in all cases. To obtain one, he must have an honest doubt-which he has the burden of proving that the union has a majority. If he launches a campaign of coercion and intimidation, or otherwise fails to prove a "good faith" doubt, the Board will order him to recognize the union, based upon a majority of signed cards obtained by the union during the organizing campaign.

Union pledge cards are actually most unreliable as proof of the employees' true wishes.

Many employees are solicited to "sign up" under the scrutiny of union organizers or fellow employees.

Organizers and employee leaders sign up employees in the street, at meetings, in restaurants, in bars, in the company's lunch room or rest rooms, or at the employees' homes.

The fact that an employee signs often means very little. Many will sign out of ignorance, or even fear. The average employee wants to be "one of the boys," and he also wants to stay out of trouble. He may follow the path of least resistance and sign just to get the organizer "off his back."

The AFL-CIO itself doesn't think much of pledge cards as proof of anything. In its "Guidebook for Union Organizers" (1961) it says:

"NLRB pledge cards are at best a signifying of intention at a given moment. Sometimes they are signed to 'get the union off my back'. *** Whatever the reason, there is no guarantee of anything in a signed NLRB pledge card except that it will count toward an NLRB election." [Italic supplied.]

The term "NLRB pledge cards" is obviously a misnomer.

What's more, some overly enthusiastic organizers are not averse to "pursuading" an employee to sign by making statements, such as:

"Everyone else has signed up-you'd better, too, or you'll be 'out'."

"This card is just so we can get 30 percent for an NLRB election. You can

still vote any way you want to."

"Sign up, or when we get in, you'll be out."

"Do you like to go home every night?"

An NLRB trial examiner recently said:

"Bandwagon psychology is always an important factor in inducing hesitant employees to sign union authorization cards." (TMT Trailer Ferry, Inc.)

Statements like these aren't always necessary as "persuaders." In one case. two employees testified that they signed cards in the belief that by so doing they would be invited to a union party.