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He kept repeating it over and over again, and on cross-examination I finally decided to ask him what modified union security meant.
And do you know that he did not know what that meant. Do you know that that employee, along with scores and scores of others who were out on strike, did not know what they were striking for, if this employee's testimony is any indication.
Now, there was an instance, I would submit, that if we had had a "right-to-work" law in Missouri it would have reduced conflicts. Now, I am not saying generally this is applicable to all, I am just telling you of a precise illustration that I am familiar with.
I might add in that case, while the union filed unfair labor practice charges against the company, the matter was heard by the Board and it was dismissed by both the trial examiner and the Board.
Now, I do not propose to go into the many arguments pro and con over the merits of the union shop. There are too many of them that are made. We have heard some of them today. I do believe, however, that we can agree on one thing, and that is the morality of employees being able to make a free choice on whether or not they want a union to represent them initially.
All of us should agree that if section 14 (b) is repealed and should the union therefore be given the power to compel employees to become members of the union as a condition of employment, the Congress, and this committee, should make sure that the union truly represents the majority of the employees in an appropriate bargaining unit.
I therefore submit, very respectfully and urgently and earnestly, that before repeal can be considered Congress should establish proper safeguards as a condition presented to the exaction of the union shop; that it must be made sure that the collective bargaining representative, in fact, represents the will of the majority, before either an employer or a union can impose restrictions on the livelihood of the individual worker who is or has too often been the forgotten man in this power play between collective bargaining participants and these pressures that are imposed on Congress by these both sides.
Unfortunately, Congress where, by section 9 of the act, provided for an election by secret ballot, Board decisions have circumvented election provisions by reliance on what the Board calls the Joy Silk doctrine and the Bernel Foam doctrine.
Those cases have been set forth in our prepared statement and it is not necessary to repeat them here.
Suffice to say that by this doctrine the Board has imposed a union on the employees without an election or indeed, where the union may have been decisively defeated in the election.
What they do in a situation like this is to presume that union authorization cards or union cards which may have been signed evidence a valid free will choice on the part of the employees.
Now, anyone with the slightest experience knows that those cards are notoriously unreliable as true indicators of the employees desires. Now, I use the words "notoriously unreliable" not as my words but as words of the Board, because this is what the Board itself said about union authorization cards.
They may be signed out of ignorance, signed out of fear, they might be signed out of a desire to get the union off its back, and "to get the union off its back" are not my words either they are the words of the AFL-CIO, because they have admitted that this is very frequently done.
I am sorry to say that sometimes those cards are even forged.
I can only cite another experience in my practice. I do not have too many cases but occasionally I get an interesting one, and this involved the EMCO Container Co., in Harrisonburg, Va.
Now there the union requested an election; the employer agreed. Two days before the election was to be held the union withdrew its consent to an election, filed charges with the Labor Board, and asked the Board to order the company to bargain with the union on the basis of cards without an election.
The Board issued a complaint and it was tried. Now, I did not question at the time that the union might have had a majority of the cards; I just questioned when I went into that hearing whether the employer had committed any unfair labor practices.
I just thought that all he was interested in doing was expressing his viewpoint to the employees.
But nevertheless when the cards were introduced I thought, well, at least we ought to make a tentative check on the validity of those cards, so I had the female secretary of the company check the cards that were introduced in evidence as proof of union majority against the payroll, and she came up with 17 cards which did not appear to be valid. So I agreed with the General Counsel who was trying the case that we would call these 17 employees in.
No one would talk to those employees before they called in, so no one would know what they had testified to.
Of those 17 employees who testified, 15 of the 17 said those cards were forgeries. Their names had been forged. Now when that happened, of course, I checked into the rest of it. And I will say this, all I wanted to do was to check with the employees at the plant and ask them whether or not they had signed cards. They did not have to answer, I told them there would be no threats of reprisal if they did or did not. Over the strenuous objection of the General Counsel who said I had no right to do that, the trial examiner permitted it, yet the General Counsel did not want me to check the rest of the cards for purpose of validity.
Well, we found about 15 more, 20 more, whose signatures had been forged, and, of course, the Board could not, in those circumstances, issue an order to bargain on the part of the company.
Now, look, this is what that illustrates, we detected the forgery there. The General Counsel should have done it on his own. should have checked the validity of those signatures, not me, because he is representing the public, not the union, not the employer, but the public.
Now, this is why I think that it is so important that we make sure, and I hope that Senator Javits in his bill, and his legal assistant will tell him this, make sure that in his bill he makes sure that those cards are authentic and truly representative of the desires of the employees before they are relied on, even in unfair labor practice cases, as proof of majority.
The bill is a good one, but I am not sure that Senator Javits' bill touches this point. It would also make sure that this presumption that the Board engaged in is taken care of; that is the presumption that when the employer commits an unfair labor practice against, let us say, two or three employees, the entire election is vitiated, even though the union may have lost by a substantial majority otherwise,
even though the union may have lost by 50 or 100 votes, the Board will say that coercion against one or two employees is sufficient to vitiate the entire election.
Now the Board does not do that if the union engages in coercion. The union may engage in coercion which is equally or even more reprehensible, but the Board will say: "well, this applies to two employees or three employees, and that is not enough to affect the results of the election," so the union stays in, if it should win.
Obviously this is not mutuality of enforcement.
These are things I think the committee ought to consider.
The courts have had occasion to consider this and they themselves, and their decisions, are full of cases where what we are talking about is true. I just want to mention this incidentally.
The way you represent clients, and you lawyers on the committee know this, you have to talk to the people to find out whether the employer committed any unfair labor practice when you are representing an employer.
Now the Labor Board does not permit discovery, we cannot go in under the regular Federal rules and find out what the case is all about, we have to go out and talk to the people. This is what I did in a recent case involving a client in the greater Kansas City area, where the board is not trying the same thing on my client in that area— trying to order the company to bargain with the union without an election.
Now, I do not know, that case is still pending, I do not know whether my client is guilty or innocent, but do you know what was done in that case simply because I investigated an associate in my firm. the basis of the questionnaire which provided all the safeguards that the Board has handed down in the previous decisions, I mean advising the employees they do not have to sign, advising the employees there will be no reprisals, advising the employees that they are free to say anything that they want; the Board named my associate in my office as an agent of the respondent in the commission of an unfair labor practice.
And he is a codefendant now. This is reprehensible, I have written to Arnold Ordman, he is the General Counsel of the National Labor Relations Board, protesting this interference with due process and I hope to hear from him and I hope he strikes it, but if he does not this committee is going to hear from me further.
Let me say this, you are leaning forward, Senator, and I just want to say this, because this I regard as the most important part of my talk, and this is the reason I came from Kansas City to talk to you.
I believe, and I am most serious about this, that Congress should consider the question of repeal of 14(b) in the light of what is best for free collective bargaining. I think it is wrong to consider legislation such as this piecemeal without regard to the balance of power which is essential to maintain and preserve free collective bargaining. It is a fact that for free collective bargaining to remain free the power of the collective bargaining participants must be substantially equal. That is the cornerstone of our labor policy.
The whole framework of our labor laws has been designed toward this end, you know, Senator, because you have been in on this from the beginning. First the Wagner Act when Congress recognized the employees should have the freedom to organize to deal on an equal
footing with the employers, then the Taft-Hartley Act when the Congress felt that the balance no longer existed and enacted the statutory cantilever to put the power in balance; then the LandrumGriffin law, when Congress reviewed and decided a correction in the balance was necessary.
This is why I must respectfully disagree with the Secretary of Labor, Mr. Wirtz, when he considers 14(b) as an isolated thing and says it should be repealed simply because it is right to do so.
The Secretary's view would enhance the power of organized labor without consideration of its overall impact on the free collective bargaining process.
I have read the Secretary's statement and not one word did he say about this vital consideration. He would have this Congress increase the power of labor unions when I submit a fair study of the power relationship between labor and management may very well show, and I would submit show conclusively, that the balance is already weighted heavily on the side of the unions.
In the light of our national labor policy I could with far more reason ask this Congress to knock out the unfair restriction on the employers right to free speech because it is, or should be, a constitutionally guaranteed act.
I could ask Congress to safeguard the employees' rights to choose or not to choose labor organizations as their collective bargaining representative through the election process because it is fundamental to our freedoms; I could ask Congress to outlaw blackmail picketing, which it thought it had done in the Landrum-Griffin law, or close up the loopholes in secondary boycotts which the court and the boards have handed to the unions.
I have as much right to request that you listen to this and to consider it and do something about it as the Secretary of Labor. I think I have more right because I am asking the committee to consider it in the light of its effect on our free institutions, our free collective bargaining, in the light of our national labor policy; people know, you know, that if there is unreasonable power there are going to be unreasonable solutions.
And if there is unreasonable solutions you are going to have solutions against national interest. This may be one of the reasons why we have our air transportation strikes, or why we now have our maritime strike, or why the strike on the dock, or where we have a wildcat in Philadelphia, and I think those are all more "right-to-work" States. They permit union security. But what I am saying is this, that let us consider all these things in the light of the balance of power which is essential to maintain free collective bargaining which is actually the cornerstone of our labor policy.
I think if the Congress will do this it will be doing a service to itself; I think that Congress will be doing a service to the entire country. Let us do what is right for our free institutions.
Senator MCNAMARA. Thank you very much, gentlemen.
Senator PROUTY. Kansas is a "right-to-work" State, is it not?
Senator PROUTY. And Missouri is not?
Mr. BROWNE. That is correct.
Senator PROUTY. Have you any idea of the number of nonunion employees or the number of union employees in Kansas and the number of nonunion employees working in those same plants?
Mr. BROWNE. I have no idea, Senator. I do not go into those statistics. I do know that unions who properly represent their people in Kansas have no trouble maintaining membership without union security; the employees want to join and belong.
Unions who do not do a good job
Senator PROUTY. Just a moment
Mr. SHROYER. May I interrupt to comment on that also?
Mr. SHROYER. I do have a lot of cases in North Carolina and Virginia, which are "right-to-work" States, when they have a contract, you end up with practically 100-percent membership, because the force of employee members on the employees who do not want to join, is enough to make them join if they would not do so for any other reason but I have no statistics.
Senator PROUTY. Now, Mr. Shroyer, do you feel that section 8(c) of the National Labor Relations Act, that is the so-called free speech amendment, should be amended to specifically apply to election cases as well as to unfair labor practices?
Mr. SHROYER. Back in 1947 I helped write it, at that time we thought it did apply.
Almost immediately in 1948 in the General Shoe case the Board found that it did not apply. Then we had a period of some 7 or 8 years during the Eisenhower administration where the Board held that it did apply.
Now, some 3 or 4 years ago; no, it was 2 years ago, the Board again went back to General Shoe and free speech does not apply in election cases under the present rules of the Board.
I definitely feel that it should, and it should be made statutory that it has to apply.
Senator PROUTY. Your basic approach is to insist that if you clearly establish in the first instance that the employees really want a union, is it not?
Mr. SHROYER. Right.
Senator PROUTY. Therefore, you would, I would assume, favor a board election before a union can become the exclusive bargaining agent except where there are unfair labor practices?
Mr. SHROYER. Of course, these exaggerated cases, which these are all based on, where the employer goes all out to destroy.
Senator PROUTY. Senator Javits' bill to which you referred, I think
Mr. SHROYER. I wanted to make it a little bit stronger, Senator. I would be happy to supply the language by which I think his bill should be modified to accomplish what I have tried to say today.
Senator PROUTY. In another of his bills, he permits Federal courts to use injunctive power where unions strike in breach of contracts which contain provisions requiring binding arbitration of grievances; however, this bill further provides that such a strike may be enjoined by the Federal court only if the parties to the collective bargaining agreement have specifically included in their contract a provision agreeing to this action. I think most of us will agree that Federal courts should be able to enjoin a strike over any dispute where a union