opinion sustaining a $1,000-a-day fine on a noncomplying union (Douds v. Retail Store Union, C. A. 2, Nov. 8, 1948; 170 F. (2d) 700), "the threat of such penalties impairs, if it does not render nugatory, the right of review" (170 F. (2d) 701).

The inadequacy and the unfairness of the summary injunctive proceeding involving, as it must, a long lapse between the date of the district-court action and final adjudication by the NLRB was recognized in the opinion of Judge Bratton of the United States Court of Appeals in United Brotherhood of Carpenters v. Sperry (C. A. 10, Nov. 2, 1948; 170 F. (2d) 863). After observing that the attorney for the Board had informed the district court that the Board would probably make final adjudication of the case in 2 months, the judge went on to state: "It is manifest that, in making its injunction effective until the Board would make its final adjudication with reasonable dispatch, not only 2 months but approximately 10 months have passed, and the Board has not acted. If the court had understood or anticipated that such a delay would intervene, it might have withheld injunctive relief, or it might have conditioned its injunction differently." The court then remanded the case to the district court with authority in light of the existing factors to modify or terminate the injunction prior to final Board adjudication.

Under section 10 (j) the general counsel, by virtue of the Board's delegation of power to him, may seek injunctive relief in any unfair labor practice. The statute does not prescribe any criteria to guide the general counsel in his resort to the court. The general counsel has made public announcements to the effect that "the discretionary injunction is a very sacred trust to be reserved for use only in these exceptional cases where either a large segment of the public welfare is endangered or where life and property are seriously and in reality threatened, or where there is a principle involved that will result in substantial and widespread irreparable damage or injury of more than a merely private nature" (remarks of NLRB General Counsel Robert N. Denham before the Texas Bar Association, Houston, Tex., July 1, 1948). An analysis of the eight 10 (j) cases to date reveals that the general counsel has exercised his discretionary powers in a number of incidents far removed from the limitations of his self-denying declaration. In at least four of the cases against unions, it is difficult to understand the pressing issues warranting resort to the use of the "sacred trust" of the 10 (j) injunction. As the trial examiner's report indicates, the AFL Meatcutters dispute (21-CB-8) involved the retail meat departments of 11 A. & P. chain stores of a total of the 40 A. & P. stores in Los Angeles out of 5,000 in the national chain. In the absence of any indication of a threatened waste of huge reserves of meat or a serious curtailment of consumer's sources, it is difficult to understand the pressing issues warranting resort to the use of the "sacred trust" of the injunction. Moreover, in the ITU case (9-CB-5), the continued newspaper service to consumers in the Chicago area by substitute printing methods throughout the year-long current strike would seem to dispute seriously the_alleged 'paralysis in the newspaper industry." Finally, the Conway Express case, supra, involving the operators of an independent freight carrier doing a small volume of interstate work, and the Montgomery Ward (2-CC-12) dispute, arising out of a temporary cessation of deliveries at the shipping dock of one store outlet, are not consistent with the avowed self-restraint policy of the general counsel.

2. Damage suits

Section 301 of the Taft-Hartley Act provides that unions may sue and be sued in the Federal courts for damages sustained in contract breaches without regard to the amount in controversy or to the citizenship of the parties. Section 303 is specifically aimed at unions and, with similar exceptions as to jurisdictional amount and citizenship of parties, authorizes suits for damages sustained because of secondary boycotts, jurisdictional strikes, or strikes to force an employer to bargain with the striking union in the face of a Board certification of a different union. Prior to the passage of these provisions a labor organization could sue or be sued for damages in a number of State courts either as an entity or in actions in which each member is named and made a party to the suit. In the Federal courts, whether an unincorporated union could be sued depended upon the procedural rules of the State in which the action was brought except in the case of a substantive right conferred by a Federal statute. The total effect of section 301 is to facilitate resort to Federal court action by the parties to a collective-bargaining agreement. Section 303 defines illegal acts and provides a civil remedy enforceable in courts by the parties injured by the commission of such acts.

The experience under the Taft-Hartley provisions must be assessed in light of their effect upon the collective-bargaining process.

It has long been recognized by experts in the field of labor relations, and this has been repeated time and again by these experts during the course of the hearings, that neither collective-bargaining contracts nor the relationships between labor and management can be policed by court actions if the basic objective of industrial peace is to be achieved. It is plain common sense that you do not sue the party with whom you must associate very closely in day-to-day contact. The years of judicial history illustrate the areas in which this truth is recognized. One partner cannot sue another in most States without also seeking a complete dissolution of the partnership entity; to protect the marital status, one spouse cannot sue another on a contract breach. A lawsuit based upon the premise of antagonists seeking compensatory damages from each other is in no way conducive of the willingness to make mutual concessions that is essential if collective bargaining is to function successfully.

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It would be indeed unfortunate for Federal legislation to encourage in any way a strong tendency on the part of labor or management to look to the courts to settle questions concerning the interpretation and application of collective-bargaining contracts. Such agreements are most workable when treated as basic charters under which day-to-day relationships are regulated. Maximum utilization of the collective-bargaining process would suggest a wider voluntary use of arbitration as a means of settling intricate contract disputes.

Available records indicate that approximately 57 suits have been brought under the enabling sections since the effective date of the act. Thirty-seven were initiated by employers, nineteen by unions, and one by an employee against an employer.

The fact that there has been no recovery in any of these actions does not warrant the conclusion that the fear of unions of suits which would drain their resources has proved groundless. The mere threat of a

damage suit may readily be used to attack the vulnerable financial position of unions. There have been a number of incidents in which employers have filed suits for heavy damages for alleged violations

of the Taft-Hartley Act. In the Pittsburgh area suits were filed against the teamsters' union prior to the period for discussing a new contract and it is reported that suits were withdrawn as a condition of the final agreement between the parties. W. J. Dillner Transfer Co. v. I. B. T. (U. S. D. C., W. D. Pa., Civ. No. 6677); amount of damages sought, $465,000. Similar situations developed in the cases of Union Motor Coach Terminal Co. v. Brotherhood of Railway and Steamship Clerks et al., (U. S. D. C., N. D. Ill. Eastern Division, Civ. No. 47c11446; amount of damages sought, $100,000) and Western Pennsylvania Motor Carriers Association, Inc. v. General Teamsters, Chauffeurs and Helpers, Local 249 et al. (U. S. D. C., W. D. Pa., Civ. No. 6642; amount of damage sought, $3,000).

Traditionally courts have frowned upon the use of their crowded dockets as an instrument of pressure and harassment. The failure of any party to recover judgment in the 57 suits to date would seem to throw questionable light upon the validity of claims filed in these court actions. Nevertheless, the enabling provisions of the TaftHartley Act have encouraged this undesirable practice. Moreover, the introduction of the threat of a damage suit, frivolous as the claims may be, is a weapon in the arsenals of the bargaining parties which does not invite the attitude of cooperation essential to the effective operation of the collective bargaining-process.

In evaluating the damage-suit experience it should be emphasized that labor organizations locals in particular-are peculiarly vulnerable to attacks upon their financial status by huge damage suits. Indeed, merely the expense of defending such suits has, in some instances, imposed a great strain on the financial resources of unions. In a large number of instances suits by employers have been brought for amounts which would operate to destroy the unions were judgment obtained and executed. It has been reported, for example, that the Deena Artware Co. of Paducah, Ky., has recently filed a suit for $431,989.25 in damages against two locals on the ground of alleged illegal picketing under section 303 of the act. Paterson Parchment Paper Co. is reported to have brought suit for $227,500 against local 500 of the Paper Makers. Among other cases reported to date have been a suit by the Armstrong Tire & Rubber Co. at Natchez, Miss., against the United Rubber, Cork, Plastic and Linoleum Workers of America and its local No. 303 for $500,000 damages due to an alleged contract breach; a suit for $500,000 brought by Oppenheim Collins Department Stores against the Retail, Wholesale and Department Store Union, Local No. 1250, for alleged violations of section 8 (b) (4) (C) of the Taft-Hartley Act; suits against the Oil Workers International Union in the recent California oil strike totaling $28,000,000. 3. Union security

The direct intervention of the Labor-Management Relations Act, 1947, in the collective bargaining process is nowhere more apparent than in its impact on union security. The charges of opponents of the law that it would (1) bring uncertainty and instability in the collective-bargaining relationship, (2) disrupt long-established and voluntarily maintained union security agreements which have been mutually beneficial to management and labor over many years of industrial peace resulting from these agreements, (3) unduly interfere with the internal affairs of unions and weaken union discipline, and (4)

encourage ever-increasing extension of State laws providing even more restrictive antisecurity measures for industries affecting interstate commerce have been borne out by subsequent developments.

Under the law no union or employer can place into operation an agreement for a closed shop. The union shop is permissible if authorized in a Board election by a majority of those eligible to vote. Moreover, employers cannot discharge, and the union cannot induce the discharge of an employee for nonmembership in a union under a valid union shop contract for any reason except nonpayment of dues. The check-off of union dues is prohibited under criminal penalties except under specified conditions of special consent by the individual member. A final provision permits State laws to impose more restrictive requirements upon union security in interstate industries than the requirements of the Federal law, thus permitting the States to outlaw even union shop provisions. These provisions are contained in sections 8 (a) (3), 8 (b) (2), 9 (e), and 14 (b) of the amended National Labor Relations Act.

Uncertainty and instability of bargaining relationships and disruption of long-established union security arrangements have unquestionably resulted in at least four important industries-the printing industry, the building and construction industry, and the maritime and longshore industries. In the printing industry the closed shop has been the practice for a great number of years. It was secured through the conservative efforts of the International Typographical Union, a union with respect to which the majority of the Joint Committee on Labor-Management Relations stated:

The International Typographical Union has long enjoyed public confidence by its record of winning gains for its members while maintaining peaceful relations with employers (S. Rept. No. 986, 80th Cong., 2d sess., March 15, 1948, p. 27.) Yet as revealed by the hearings the International Typographical Union, whose history during the past 18 months has presented perhaps the outstanding example of the disruptive effects of the Labor Management Relations Act, has been compelled to expend some $11,000,000 to resist attacks upon the security of its organization. During the Taft-Hartley period this union has had filed against it 18 charges, 9 complaints, 1 injunction suit, and 2 damage suits and has been forced to participate in 8 strikes, 1 of which has been going on for more than a year.

Similarly, in the building and construction industry, the closed shop has been traditional, not merely for the purpose of providing adequate security for employees, who must by the nature of things move frequently from one job to another, but, in addition, to provide a ready pool of available labor for employers. Building and construction was shown by the testimony to be carried on by thousands of large and small contractors whose operations are either general or specialized in nature. Few contractors build up permanent labor forces since this would involve carrying workers on pay rolls between contracts. Each contractor hires his own labor force to meet the requirements of the individual contract. The workers are recruited for each job and work for as many as 10 to 12 contractors a year. The duration of a single job is frequently less than 30 days. Šince contractors frequently conduct their businesses over wide areas, building craftsmen frequently migrate to the areas where work is

available, or in new areas of operation the union recruits labor for the contractor.

Because the act has been construed as applying to this industry (the Board under the Wagner Act had not generally asserted jurisdiction over this industry), all union-shop arrangements in the industry require authorization by a union-shop election. These elections, however, are completely impracticable in an industry characterized by brief periods of employment and frequent moving from one job and one area to another. The duration of a single job is often less than 30 days yet the act requires union membership only after 30 days of employment under a union shop. As a result, only one election has been held thus far, in western Pennsylvania. Five crafts were involved in this one election alone. The administrative difficulties involved became apparent in the light of the fact that one construction project may involve as many as 35 unions and 10 employers.

The single election held thus far involved 2,483 workers and cost about $40,000 or $16 a vote. About 90 percent of the voters favored the union shop. Because polling in the construction industry proved wholly impractical and would have necessitated elections in 500 areas at gigantic Government expense, the task was dropped. Employers and employees in the industry are nonetheless faced with the choice of disobeying the law, with all of the uncertainty and instability which such a course involves, or else abandoning the union shop to the complete disruption of labor relations in the industry.

The maritime and longshore industries are faced with similar problems under the present law. Here the union hiring hall and the shape-up have been real necessities for purposes of decasualizing emplovment and attaining stability. After the passage of the LaborManagement Act the legality of these arrangements was thrown sharply in issue. Strikes of national proportions followed. Charges, complaints, and injunctions followed the usual Taft-Hartley law pattern. The Presidential Board of Inquiry appointed under the law to find the facts in dispute reported as to the east and Gulf coasts:

The shipowners do not deny that the hiring hall for licensed personnel has brought about a stable and economical hiring practice. It has largely relieved them of the time, expense, and personnel that previously had to be devoted to engaging a crew. They expressed during the hearing no objection either to the principle of the hiring hall and preferential treatment or to the methods by which it has been administered by the NMU (first report of the board of inquiry, p. 22). Yet the law has been the direct cause of disrupting collective bargaining and creating instability in these industries:

What the situation would have been had the National Labor Relations Act remained unamended must necessarily be a matter of conjecture, but it is entirely clear that in the present circumstances the basic dispute, which overshadows the other issues in controversy and which has thus far rendered agreement on any point impossible, arises from the amendment of the N. L. R. A. by the Taft-Hartley Act (first report of the board of inquiry, p. 6).

Settlement on all other issues was impossible in the maritime disputes until agreement was reached to continue the hiring hall pending judicial determination of the issue. Peaceful settlement of the other issues followed within 2 weeks on the Atlantic and Gulf coasts and on the Great Lakes.

An inevitable corollary of these cases is a weakening of the internal union structure wherever the Labor Management Act must be fol

S. Repts., 81-1, vol. 1-71