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and employer have agreed to submit the dispute for binding arbitration as a result of collective bargaining. But if such agreement is made in good faith as the law requires, I do not see the necessity or the reason for superimposing the additional requirements at equitable injunctive relief be conditioned upon the union's agreeing in its contract with an employer that such relief may be sought if it fails to live up to its contractual obligation.
Now, what is your reaction to that?
Mr. SHROYER. Let me clear up one thing, when you started to mention Senator Javits' bill that provides the elections. I have not read the bill you are talking about now. From what you have said, now, I would agree; yes.
Mr. BROWNE. I think, as a matter of fact, Senator Prouty, this was discussed before the American Bar Association and the Federal courts have taken the position that notwithstanding a union's commitment not to strike, Federal courts are powerless to issue an injunction. The Federal courts will order an employer to arbitrate if that is part of the grievance and-unions also agree not to strike, because this is the substitute, you see, for economic action, arbitration.
Now, the Supreme Court has ruled, most of the circuit courts were against the Supreme Court, but the Supreme Court ruled that because of the application of the Norris-LaGuardia Act, that the Federal courts were powerless to make the union live up to the bargain but could make the employer live up to the bargain. This is an inequitable gap in enforcement proceedings, and I would guess that Senator Javits' bill is designed to do that, and I would go for it. I am listening to it for the first time, but I would go for it, I think it is very necessary. This is one of the many things which I think Congress should consider. Senator PROUTY. Thank you, Mr. Chairman. I have no further questions.
Senator MCNAMARA. Thank you, Senator.
Senator FANNIN. Yes, Mr. Chairman. I was called to another meeting, so I did not hear all of the discussion. However, I did read the testimony of Mr. Gatz and Mr. Larson, and I was very much impressed with what they had to submit. It was very informative and revealing.
I did miss some of the testimony of Mr. Shroyer, but I would say that the presentations made by you two gentlemen have been very effective and certainly forcefully presented. It has been extremely helpful to me in having additional information in regard to just what transpires.
Mr. Shroyer, I would like to get your thoughts on one matter. During the hearings, there have been various references to the late Senator Taft's position on section 14(b) and the "right-to-work" principle. I know that you were associated with him through your vast experiences with the Senators. Could you help to clarify this matter?
Mr. SHROYER. I happened to have been in the hearing room yesterday. I came up here. I heard that reference. I also then read Secretary Wirtz' testimony the fact that he was quoting Senator Kennedy, the then Senator Kennedy, as agreeing to what Senator Taft, with Senator Taft, that 14(b) should be repealed. I was a little startled. Enough so that I went back yesterday afternoon and tried
to check my own records, because my own memory was so completely opposite. I was with Senator Taft from January 1947 through the Republican Convention in 1952, which was just preceding his death. If there was a statement any place in which he urged repeal of 14(b), I do not know about it.
I can say this, that when we were considering Taft-Hartley, in the Senate bill, 14(b) was not included; however, in the report which I helped to write and which was signed by Taft, it was said that is was unnecessary to write any protection into the State laws, that that was already the law. All right, then we were in Congress, the House insisted on 14(b). Taft went along; then coming back to the Senate, when he was arguing for the conference report, he said, "The Senate has already agreed to it in that it is already the law." Therefore, he could see no objection to having it in.
Now, the next time that you have it come up at all is in 1949. That is after Mr. Truman was reelected and we had a bill up here to repeal the entire part of Taft-Hartley. That failed, as you may know, by, I think one or two votes. There was one vote specifically on 14(b), and both Senator Taft and President Johnson voted against it. Also in the report signed by Senator Taft there are three or four paragraphs in which the Senator specifically endorsed section 14(b).
I have them all here if anybody wants to read them or if anybody wants me to supply the reference. They are in official Senate documents, so I would say that-you have to show me some place that Senator Taft ever endorsed repeal of 14(b). I just do not believe it. Senator FANNIN. Then, you do agree he believed in the principle of the "right-to-work" law?
Mr. SHROYER. I have read Mr. Hartley's statement which was put in, I think, by the prior witness. I agree with it completely. Senator FANNIN. Thank you.
Do you feel that section 14 (b) has had a beneficial effect in States which have not passed "right-to-work" laws because of union awareness that sufficient public dissatisfaction with unions might result in the enactment of a "right-to-work" law?
In other words, would section 14(b) affect these other States, in addition to being beneficial to the 19 "right-to-work" States?
Mr. SHROYER. That is pretty much of an "iffy" question, Senator. I think it would have an effect in States which are, oh, shall we say, sort of on the borderline; I mean States like maybe Indiana, which had one and repealed it, other States where it is pending and it is a hot issue. I think it would have a definite effect, but whether it would have an effect in Senator McNamara's State of Michigan, I do not know.
Senator MCNAMARA. I will not attempt to judge.
Senator FANNIN. I believe you did say that this would be a right that would be retained by the States, that they could pass a "right-towork" law
Mr. SHROYER. I think you are taking something away from them. You are taking a lot away from 31 States.
Senator FANNIN. Thank you.
Senator MCNAMARA. Thank you very much, gentlemen. We appreciate your contribution to the record. We accept your qualifications as an expert. Thank you for being here.
Mr. SHROYER. Senator, I used to live in Michigan. I went to school at the University of Michigan, so I can qualify, at least with you, as an expert.
Mr. BROWNE. My mother lives in Michigan, too.
Senator MCNAMARA. Professor Sovern, and Prof. Joseph R. Dempsey, S.J., are our next witnesses and will appear as a panel. Professor Sovern, do you speak for the Columbia University Law School, or are you just representing yourself?
Professor SoVERN. Just myself, sir, as an individual.
Senator MCNAMARA. And I take it, Professor Dempsey, that you also are representing not the University of Detroit, but your own personal views?
Professor DEMPSEY. Yes, sir.
Senator MCNAMARA. You do not represent any other organization?
Professor DEMPSEY. NO.
Senator MCNAMARA. Thank you, very much, gentlemen. You may proceed. Who is first?
STATEMENTS OF PROF. MICHAEL I. SOVERN, COLUMBIA UNIVERSITY SCHOOL OF LAW; AND REV. J. R. DEMPSEY, S.J., ASSOCIATE PROFESSOR, UNIVERSITY OF DETROIT, ECONOMICS AND MANAGEMENT
Professor SOVERN. I have submitted a formal statement to the subcommittee, Mr. Chairman, and propose merely to summarize it quite briefly in one or two respects.
Senator MCNAMARA. We will include the complete statement in the record at this point.
(The prepared statement of Mr. Sovern follows:)
PREPARED STATEMENT OF PROF. MICHAEL I. SOVERN
I am Michael I. Sovern, professor of law at Columbia University's School of Law. I am also an arbitrator of labor disputes, director of the Twentieth Century Fund's project on racial discrimination in employment, chairman of the American Civil Liberties Union's Labor Committee, cochairman of the American Bar Association's Committee on the Development of Law under the National Labor Relations Act, and a member of the Committee on Labor and Social Security Legislation of the Association of the Bar of the City of New York. I have served at various times as a consultant to the city and State of New York on labor relations matters. I am, however, appearing this morning solely in my personal capacity and respectfully thank the subcommittee for the opportunity to do so.
S. 256 should be enacted. "Right-to-work" laws are anomalous, subversive of Federal labor policy, and frequently hypocritical. They neither confer a right to work nor protect any other substantial employee interest. Their principal aim is to protect not employees, but employers, and the "evil" they are intended to forestall is collective bargaining. Their principal aim, in other words, is a repudiation of Federal policy. They should not, therefore, be sanctioned by Congress, even though they probably have failed in their ob ective so far.
Those who are genuinely interested in the right to work will support S. 2134, Senator Javits' proposal to strengthen title VII of the Civil Rights Act of 1964. This bill would constitute a major advance for Negro workingmen.
Like S. 256's proposed repeal of section 14(b), S. 2132, Senator Javits' proposal "to make the Norris-La Guardia Act inapplicable to certain injunctive proceedings," would reassert the primacy of Federal labor policy and reaffirm the values of collective bargaining. It, too, should be adopted.
I support S. 256's proposed repeal of section 14(b). Permitting the States to enact "right-to-work" legislation is fundamentally anomalous; it subverts the Federal policy favoring uniform regulation of labor-management relations; and it could seriously weaken free collective bargaining, an institution that the Congress has repeatedly undertaken to foster.
A false issue. This body need not, of course, be told that "right-to-work” laws confer no right to work, that they differ from Federal law only in outlawing union shop agreements. But perhaps it is useful to point out that, the "right-towork" sobriquet notwithstanding, no genuine issue of civil rights or civil liberties is before you. I am affiliated in various ways with the American Civil Liberties Union, the Workers Defense League, and the NAACP legal defense and education fund. None of these groups, each of which has unflinchingly defended the rights of workingmen and oppressed minorities, is opposed to the union shop.
The Federal law on this subject does not, after all, sanction blood oaths or pledges of fealty; it does not allow employment to be conditioned on the payment of union fines, strike fund levies, or any other special-purpose assessments; it expressly prohibits the exaction of discriminatory or excessive dues; and it explicitly guarantees members a voice in the setting of dues levels. Section 8(a) (3) of the National Labor Relations Act merely allows an employer and a union to agree that every worker in the bargaining unit must contribute to the costs of the collective representative that the majority has decided it wants and that the law requires to represent all. This amounts, incidetnally, to an average of less than $50 per year per worker. It is no wonder that those sensitive to infringement of individual rights see no problem here.
The real purpose.-The reality, of course, is that "right-to-work" laws are designed to protect not employees, but employers. They would weaken unions by diminishing their financial base and by expressing the State's disapproval of agreements that require all employees to support their collective bargaining representative. Section 14(b) makes Congress a limited partner in this effort, not only because "right-to-work" laws could not exist without it, but because it expresses Congress view that the union shop is sufficiently questionable to warrant leaving it vulnerable to local outlawry.
In most of the States that have enacted "right-to-work" laws, one looks in vain for any legislation comparable to the National Labor Relations Act. Allegedly zealous to protect employees from union shop agreements, they are indifferent to the need of employees not covered by the National Labor Relations Act for machinery to compel employers to bargain with their chosen representatives. This, of course, tends to confirm the impression that employers are the actual intended beneficiaries of "right-to-work" laws.
Weak unions suffer most.-Section 14(b) does not even have the dubious virtue of being frontal assault on unions; it strikes instead where they are already weak. Where unions have widespread support, section 14(b) is a dead letter, for in such States enactment of a "right-to-work" law is inconceivable. On the other hand, where unions have not yet organized large numbers of employees, the "right-towork" law aims to keep it that way. Moreover, in many of the States that outlaw "involuntary membership," the National Labor Relations Board's reports show, employer and community pressures penalize those who opt for voluntary membership.
Subversion of collective bargaining.-If "right-to-work" laws succeed in weakening unions, and especially if they weaken the already beleaguered, they would, of course, also weaken collective bargaining and thereby subvert Congress support for that institution. Union support and collective bargaining are obviously interdependent, and there is no more justification for permitting the States to make their own laws on the one subject than on the other.
The evidence collected so far suggests that "right-to-work" laws have not accomplished their objectives, and are, in fact, of only marginal importance. The evidence is, however, far from conclusive and offers no assurance that serious damage will not be done in the future. Moreover, I emphasize again, to the extent that the statutes do have an effect they tend to damage unions that are already having a difficult time of it.
Since "right-to-work" laws do no good and may do serious harm, Congress should revoke the special dispensation that permits them to exist.
A REAL "RIGHT-TO-WORK" LAW
The employee whose "no" vote is overborne by the majority need only pay his $50 a year to go on working. What of the Negro who cannot work because of his color? North Carolina's "right-to-work" law, to choose just one example, declares: "The right to live includes the 'right-to-work.' The exercise of the 'right-to-work' must be protected and maintained free from undue restraints and coercion." But the logical sequel a ban on racial discrimination in employment-is, of course, missing.
Happily, the Congress afforded such protection in title VII of the Civil Rights Act of 1964, but that statute contains a number of serious defects in coverage and enforcement procedure. S. 2134, Senator Javits' bill to amend title VII, would remedy the gravest of these. It would, moreover, result in a fair employment practices act closely resembling the excellent bill reported out by this committee at the last session. Accordingly, I wish to take this opportunity to express my support for S. 2134, which comes closer to being a "right-to-work" law than any of the State statutes passed off under that heading.
THE ENFORCEMENT OF COLLECTIVE AGREEMENTS
I take the liberty of speaking to one additional matter. Repeal of section 14(b) would both reassert the primacy of Federal labor policy and reaffirm the values of collective bargaining. There is only one other area of labor-management relations requiring such action-strikes in breach of contract. When a union strikes in violation of a collective agreement, the Federal courts may not enjoin that strike even though the dispute is one the union and the employer have agreed to arbitrate. Since the Federal courts' impotence to enjoin such a strike results from the Norris-LaGuardia Act, and since that statute in terms applies only to the Federal courts, State courts may retain their power to enjoin where the Federal courts cannot. However, whether to exercise that power, and if so, the terms on which to exercise it, apparently remain for each State to decide.
As Senator Javits has pointed out, "Surely if our Federal labor policy is to encourage collective bargaining under a uniform Federal labor law, then at least we ought to have a uniform policy providing for enforcement of the bargain once it is made." S. 2132, Senator Javits' "bill to amend section 301 of the LaborManagement Relations Act, 1947, so as to make the Norris-LaGuardia Act inapplicable to certain injunctive proceedings," would enact such a policy. Since the policy it offers would constitute a material improvement over the present state of affairs, I support it.
ABSENCE OF A CIVIL LIBERTIES QUESTION IN REPEALING SECTION 14(b)
Professor SOVERN. The main burden in my opening paragraphs is with the precise issue before this subcommittee and the Congress. The subcommittee has heard a great deal as did the House committee about the individual right to decide and the individual freedom of the individual employee.
The fact is, however, that the National Labor Relations Act independently of 14(b) permits only one infringement, if you will, upon individual choice, and it permits that only when the majority of the workers in the bargaining unit have expressed their will, and that is that he be made to pay his share of the costs of collective bargaining, costs that run on an average of no more than $50 a year per employee.
It is hard to see this issue as an issue of civil rights or civil liberties. I am chairman of the Labor Committee of the American Civil Liberties Union; I am a member of the National Beard of the Workers Defense League. I have been a consultant to the NAACP Legal Defense and Education Fund. All of these groups exhibit great concern with the rights of workingmen and oppressed minorities: None is opposed to the union shop.