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I would like to read into the record two sentences from a press release of the American Civil Liberties Union dated February 17, 1955, which read as follows:

The ACLU said there were no civil liberties grounds on which "right-to-work" statutes could be supported. Reaffirming its long-standing position, the ACLU declared that union-employer contracts for a union or closed shop do not violate civil liberties so long as membership in the union is open, and have a reasonable, nonarbitrary, and nondiscriminatory basis.

The fact is, as Mr. Brown, the previous witness, suggested, the real subject of the so-called "right-to-work" dispute is union power. He neglected to mention, however, though perhaps he would disagree with my assertion, that "right-to-work" statutes do not affect in any major regard the unions whose power he is most concerned about. It is the weaker unions that are vulnerable to "right-to-work" legislation. The 14(b) option is not about to be accepted by States in which unions are strong. The sweetheart problem is not a “rightto-work" statute problem. The sweetheart contract feeds on ignorance; it is frequently a violation of a host of laws, some of them criminal. And the "right-to-work" statutes do not meet this problem at all.

The fact is that if the "right-to-work" proponents are successful, what we have is an inroad on the very policies that the Federal legislation aims to support, to wit: freedom of collective bargaining.

If you take the statements of a number of the proponents of "rightto-work" legislation and substitute the phrase "Federal protection of collective bargaining" for the phrase "compulsory unionism," you will find most of these statements continue to make just about as much sense as they did before. The opposition is to union strength and not to any infringement on individual rights.

EQUAL EMPLOYMENT OPPORTUNITY-THE REAL RIGHT TO WORK

Where we do have a problem with respect to the individual's right to work is in the area of racial discrimination in employment. This is a serious problem at the employment level both with respect to employers and, more rarely, with respect to unions. So I take the liberty on this occasion of expressing my support for another of Senator Javits' bills, not yet referred to this morning.

That is S. 2134, which closely resembles a bill this committee reported out at the last session and which was warmly endorsed by the Association of the Bar of the City of New York in its Record in volume 19, page 230.

I think I will stand on my formal statement for the remainder of my views, Mr. Chairman.

Senator MCNAMARA. Thank you very much.

Professor Dempsey?

Professor DEMPSEY. I would like to read my statement into the record.

Senator MCNAMARA. Go right ahead.

Professor DEMPSEY. Mr. Chairman and members of the committee: My name is Father Joseph R. Dempsey, S.J. I am a professor of economics and management at the University of Detroit, and I am speaking in my own name and not that of the University of Detroit. I am here to testify in connection with proposed legislation to repeal section 14(b) of the Labor Management Relations Act of 1947.

I would like to make a point right here in my own way. If I might be permitted a colloquialism to express my point, it is that I feel that Senator Taft, when he wrote the Taft-Hartley law, was not against union security; but he did respect the State's activity in this field. And my particular point here before the subcommittee will be to point out, as a result of my investigation and of my opinion, that the States have dropped the ball-if I may use this way of speakingand therefore no longer are these laws that are the State's laws worthy of Federal protection under 14(b).

I state this in my statement here. The main point of my testimony is that experience proves that State "right-to-work" laws are poorly drawn statutes unworthy of Federal protection. My testimony is based on extensive field study of the operation of "right-to-work" laws in Louisiana, Texas, Arkansas, and Tennessee.

At the outset, it must be noted that Federal law requires a recognized or certified union to serve as the bargaining agent for all employees within the bargaining unit, whether they are members of the union or not. Under Federal law, the worker need not actually join the union in the sense of taking the union oath and so forth, on the pain of losing his job.

All the law requires is that he tender his dues. If the union is remiss in servicing the worker in the grievance process, the Federal law is now being expanded by the courts to include the duty of fair representation of the worker by the union.

The history of the campaigns to pass State "right-to-work" laws shows that advocates and opponents disagree on the fundamental nature of these laws. The position of the advocates of "right-towork" laws may be called a contract viewpoint. The opponents of "right-to-work laws take what may be called an integral viewpoint of the law.

Before the public, advocates of the "right-to-work" laws contend that they seek only to prohibit a union security clause in the collectivebargaining agreement. They argue that this clause is the basis for many abuses of individual and social rights by unions.

On the other hand, opponents of "right-to-work" laws argue that collective bargaining, unionism, and union security are a unity. They maintain that an attack on union security is actually an attack on unionism, collective bargaining, and other legitimate union activity. The opponents of "right-to-work" laws usually claim that the true purpose of these laws is to restrict union organizational activity, weaken union job control, and interfere with general union activity. State court interpretations of existing "right-to-work" laws show that these laws are capable of being interpreted exactly as their opponents predicted; that is, as substantial interferences with general union activity.

Two Louisiana cases are illustrative. I only quote two for purposes of time. In Hanson v. Operating Engineers (79 So. (2d) 199), the "right-to-work" law was used as a basis for denying the right to organizational picketing. In Piegts v. Amalgamated Meat Cutters (81 So. (2d.) 835), the "right-to-work" law was interpreted as a prohibition on picketing for the purpose of achieving an exclusive bargaining contract. Čases in other States show similar interpretations.

Cases in Texas, Arkansas, and Tennessee can also be cited which show that the "right-to-work" law can be used to stop organizational picketing. To quote only one witness, whom I interviewed myself, and verified his testimony, Mr. L. N. D. Wells of Dallas, Tex., made the following statement:

It became standard operating procedure for employer petitions for the equitable writ of injunction to cite a union's evil intent to require employees to become or remain members of the union. Union form-answers just as uniformly negated any intent to obtain an unlawful closed shop or illegal hiring arrangements. Thus in every case a question of fact arose: Was the union's purpose lawful?

It is the sharp, well-prepared, and I might say unusual business agent who will forego, on cross-examination, the opportunity to explain the merits of his union, and to exclaim "of course" to the obvious question as to his purpose to increase his membership, and provide by contract to bring the benefits of unionism to more and more workers.

Texas courts use such "admissions" as sufficient to base a trial court "finding" of unlawful purpose to require membership in a union. And then no matter how peaceful the means, no matter how lawful the purpose, no matter how lawful the method, no matter that the protest is actually aimed at low wages, long hours or sweatshop conditions, there is nevertheless basis for the injunction which obliterates the picket line and breaks the strike. This happens again and again

in Texas.

Since 1935 national labor relations policy has been built on the foundation of exclusive bargaining contracts. State "right-to-work” laws have operated to prohibit activity aimed at the establishment of exclusive bargaining contracts. As such, these laws pose a direct challenge to long-established national labor relations policy.

The "right-to-work" assault on exclusive bargaining agreements and organizational picketing has been blunted by the preemption doctrine of the U.S. Supreme Court. In a series of cases culminating in Retail Clerks v. Schermerhorn, the U.S. Supreme Court said that "right-to-work" laws could be interpreted only as a prohibition on a specific collective bargaining contract clause.

This decision extends Federal rules to all union activity affecting commerce except union security clauses in "right-to-work" States.

The result is a judicial repeal of the most abhorrent applications of the "right-to-work" laws. Where applied, the Schermerhorn doctrine enforces the contract theory advocated by the proponents of "rightto-work" laws. This means that unions are only denied the income which they might otherwise obtain by the negotiation of a unionsecurity clause.

Since Schermerhorn, "right-to-work" laws have only two possible applications: (1) as severe restriction on union activity in the limited scope of intrastate commerce, or (2) as a denial of some income to unions in interstate commerce.

The matter directly before this committee is the repeal of section 14(b). I feel that it is unfortunate that the vital matter of union security is being considered in such a narrow way. Although both Presidents Wilson and Truman failed in their attempts to develop a national management and union consensus on the matter of union security and there is little reason to believe that such a consensus could be developed today, American experience with this knotty problem leaves more questions than answers.

It seems to me that a sound policy on union security should be developed around carefully researched answers to questions such as the following:

1. Are different forms of union security suitable to different industries, firms, and labor force?

It has been argued by some scholars in this field that the full closed shop is most suitable to industries with a casual labor force. It also could be argued that the sole need of unions in manufacturing industry is the "dues" shop.

2. What price must American unions pay for Government sponsorship of the collective-bargaining process and a law which requires an employer to deal with unions which have won an NLRB election?

It could be argued that the long-range result of governmentally protected, exclusive bargaining contracts will be to make unions an instrumentality of the State. This possibility deserves the most careful analysis not only by unions which could ultimately lose their freedom, but also by legislators and employers.

3. Is union security legislation compatible with national policy on manpower training and development?

Management-union cooperation plays a major role in many apprenticeship programs. Does legislation restricting union security arrangements threaten long-established cooperative training programs?

Regardless of the fate of 14(b), I feel that there is a genuine need for a nonpartisan investigation of the full economic and social significance of the union security issue.

Senator MCNAMARA. Thank you, Father Dempsey.

Are there any questions or comments?

Senator PROUTY. I have a couple, Mr. Chairman.

Senator MCNAMARA. Senator Prouty, go right ahead.

Senator PROUTY. Father Dempsey, I think you have made a very meaningful statement to the subcommittee and I am sure it is going to receive real consideration.

A majority of those employees voting can put a union in a shop. However, it takes not a simple majority of those voting, but a majority of all employees in a given plant to do away with the union shop. How do you feel about these different standards?

Professor DEMPSEY. Well, I would have no real opinion on this. As far as the fact that there is a different standard, I would readily say that perhaps we should investigate and make this an equal standard.

Senator PROUTY. And if unions are given greater rights through repeal of 14(b), should Congress also accord greater protection to the employee insofar as his relationships with the union are concerned? If you feel that way, what types of protection for the individual might be appropriate for Congress to consider?

Professor DEMPSEY. Well, I would think that much would have to be done before Congress could go in and say that such and such protections must be given to the individual employee.

They would have to verify that there are rights of the individual employee that are being violated, and insofar as they were able to uncover these particular violations of individual rights, then it would be up to them to propose legislation to remedy this particular difficulty. Senator PROUTY. The repeal of 14(b) will, if it takes place, create some problems for unions, would it not, that might not be anticipated? Professor DEMPSEY. I feel this. It is very difficult to predict the future. But if we take a look at the past and say that what has

happened in the past may very well continue to happen in the future, then we might say that there will be problems. As the union has developed union security, there may be a pressure from individuals within the union who feel that their grievances, for instance, have not been processed. That may happen as a matter of fact.

One of the parts of my statement here is that the Taft-Hartley law had begun to be expanded by the courts to take care of this situation. And I am not so sure that the union would like to have again the courts coming in and telling them what they want to do or should be done about their individual members. This is where there is a pressure that is building up for individual protection that the courts would answer.

And I am not sure that the union would like this, because I think that they are seeking freedom from Government intervention, but they may be possibly getting more Government and specifically getting it through the courts.

Senator PROUTY. If 14(b) were repealed, I gather from what you have said that Congress should at least give some serious consideration to making changes which would perhaps protect the union members against possible grievances or any grievances they may have?

Professor DEMPSEY. I believe that before anything can be said, Congress should give consideration. But they should give consideration on the basis of an impartial investigation. To make an assumption that there are abuses is something that I think Congress itself just does not want to do. It wants to only act as the result of mature study of the problem.

And then as it would uncover problem areas, it would proceed. Senator PROUTY. Thank you, Father.

Mr. Chairman, Professor Sovern, Senator Javits has submitted a list of seven questions which he requested me to ask you. Senator Javits has just called and he is on his way back, so I think he would prefer to ask the questions himself.

Senator MCNAMARA. Do you want to submit the questions for the record? I am not going to sit here and wait for the Senator to come back. He has been in and out several times.

Senator PROUTY. I will ask the questions.
Senator MCNAMARA. Go right ahead.

DEFECTS IN TITLE VII OF 1964 CIVIL RIGHTS ACT

Senator PROUTY. You stated in your prepared statement that title VII of the Civil Rights Act of 1964 contains a number of serious defects in coverage and enforcement. Would you please expand on that point?

Professor SOVERN. The two most serious ones, both of which Senator Javits' bill undertakes to deal with, are in the exemption of employers with employees below a specified number, and in the enforcement provisions.

When the statute becomes effective next week, it will cover employers of 100 or more; it will then go down at the rate of 25 a year, ultimately reaching employers of 25 or more. At its fullest reach, the statute will still leave the majority of American employees uncovered.

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