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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. He 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.
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 areatrying 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. On 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. 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-
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 bargaini 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
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
I 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