(11) Return supervisory employees to that status in which their loyalties are divided and management deprived of any effective representation in the conduct of labor-management relations;

(12) Deprive employers of their guaranty of the right of free speech; (13) Permit secondary boycotts as a means of forcing organization on employers and employees, or as a means of retribution against those who refuse to accept union demands;

(14) Provide no effective deterrent for jurisdictional strikes and secondary boycotts;

(15) Remove many procedural reforms governing the National Labor Relations Board in the conduct of its affairs;

(16) Deny professional employees the right to separate representation by a union of their own choosing;

(17) Permit the check-off of union fines, penalties, assessments, dues, and initiation fees from employees' wages without authorization from such employees;

(18) Remove the wholesome requirement that labor organizations report to their membership upon their financial affairs;

(19) Nullify State laws abolishing or regulating compulsory union membership;

(20) Remove protection for craft unions and equality for unaffiliated unions.

THE EVIDENCE

The hearings conducted by the Senate Committee on Labor and Public Welfare on S. 249 failed to develop a case for the opponents of the Taft-Hartley Act, so far as the basic principles of that act were concerned. It was unfortunate that the abuse of the act was continued under such epithets as "slave labor," "antilabor," "vicious legislation," etc.

However, it was obvious during the hearings that there was a strong feeling by union leadership against the act as such, and there was a strong demand from them for its repeal. We seek, as we have stated above, to bring about an understanding between management and labor and to develop legislation under which both parties to these unfortunate labor controversies can go ahead with machinery developed to settle their disputes amicably and to protect the public health and welfare against threatening work stoppages.

As a matter of fact, the evidence did bring out that since the passage of the Taft-Hartley Act the unions have gained in membership, wages paid to their employees have increased steadily, and disputes with employers have been settled with fewer work stoppages than prior to the act.

The Secretary of Labor furnished the following statistics on strikes:

In this report the minority proposes to review the chief objections made to the provisions of the Taft-Hartley Act and to propose certain amendments to the pending legislation, S. 249, the committee bill. Approaching the matter from this standpoint, we note that the opponents of the Taft-Hartley Act generally confined their attacks, apart from matters of administration, procedure, and elections, to five main points-alleged interference with collective bargaining, ban on the closed shop, ban on secondary boycotts, legal liabilities of unions for performance of contracts, and injunctions.

We will deal with these points, and in connection with our discussion of them we will suggest amendments we believe to be desirable to the pending legislation.

Alleged interference with collective bargaining

The basis of the Taft-Hartley Act is free and equal collective bargaining, which never existed under the Wagner Act. The witnesses who charged that the Taft-Hartley Act in some way favored individual bargaining were unable to point to any case in which this had occurred. The argument seemed to be that, since unions were deprived of some powers they previously enjoyed, it would be somewhat more difficult to organize nonunion plants, where individual bargaining still prevailed. Since all reasonable methods of organization are preserved by the Taft-Hartley law's adoption of the provisions of the Wagner Act, this seems a ridiculous charge.

The Taft-Hartley Act provisions cited as "interference" with free collective bargaining were its requirement that union dues check-off be authorized by the individual employee, its welfare-fund provisions, its ban on closed-shop contracts, and limitations on union-shop contracts.

So far as the check-off is concerned, the evidence indicated that most unions have had no difficulty obtaining individual authorizations, and the principle that no worker's wages should be diverted without his individual consent is preserved.

No one regards the present provision on welfare funds (sec. 302, LMRA) as perfect; but, with more than 3,000,000 employees now having part of their earnings diverted into such funds and the practice growing, some protection against misuse of such funds to the detriment of the employee seems imperative. The facts are that the number of employees covered by such funds has doubled under the Talf-Hartley Act, indicating that the charge this provision has interfered with bargaining cannot be sustained. So far as protecting employees' equities is concerned, Secretary Tobin agreed that some regulations, similar to those on insurance, probably were needed, but still he insisted that the minor safeguards in the Taft-Hartley Act be eliminated. As to the limitations on closed and union shops, it must be remembered that the Wagner Act adopted a principle which seriously limits the civil rights of every workman. Because a majority of the employees select a bargaining agent, every other employee is deprived of his right to contract with his employer or have any voice in the determination of his wages hours, or working conditions. Surely some limitations on the kind of contract which the bargaining agent and the employer may make is justified to protect that employee and others who desire to obtain a job in the plant. The closed shop is

declared to be against public policy by the laws of 17 States-collective bargaining is no less free because it adopts that policy.

In principle it is difficult to follow the reasoning of those who appear to insist that employers and unions should be free to make any sort of contract they desire, whatever might be its injurious impact on society and individuals, and that Government must set no limits in this field. By that kind of reasoning, the conspiracy between the employers and union in the New York IBEW case should have been perfectly legal, since both parties benefited by it, and only the public suffered. Union liability for violation of contract

All witnesses opposing the Taft-Hartley Act insisted that collectivebargaining contracts should be observed and carried out by both parties, but objected to section 301 making unions suable as legal entities for breach of contract.

The main argument against this provision was that it would involve unions in a mass of litigation and prevent their functioning to carry out their economic aims. The record shows this has not been the case, with only 45 such suits filed in 18 months and many of them by unions against employers. But the provision has cut down to a remarkable degree the prevalence of "wildcat" strikes in violation of contracts.

Some witnesses claimed unions were liable for suits in State courts and making them liable in Federal courts was unnecessary while others took the contradictory position that collective-bargaining contracts, while they should be observed, should not be enforceable.

Ban on closed shop and secondary boycotts

Inasmuch as we have proposed various modifications of the present act's restrictions upon compulsory union membership and secondary boycotts and eliminated the mandatory injunctions in all cases our analysis and comment upon the arguments against these provisions has been placed with the discussion of the respective amendments. Amendments to S. 249

The amendments we propose incorporate, for the most part, the provisions of the bill (S. 1126) as it was reported to the floor of the Senate by the Committee on Labor and Public Welfare in 1947. a number of instances we have eliminated provisions of that bill because experience has proven them to be unwise. We have considerably changed the national emergency provisions which were carried without change from the Senate committee bill into the Taft-Hartley Act. We have permitted greater latitude in the restrictions upon compulsory union membership contracts. The provision making it mandatory that the National Labor Relations Board seek a court injunction in secondary boycotts and jurisdictional strikes has been eliminated. The provision depriving replaced economic strikers of a vote in representation elections has also been eliminated.

Of those amendments which were added to the 1947 committee bill on the floor of the Senate we have retained and modified the nonCommunist affidavit requirement, the restrictions upon welfare funds and the suit for damages in secondary boycotts. Provisions added in conference with the House of Representatives have been largely eliminated. We have retained in a modified form the restrictions upon political contributions and the prohibition of strikes by Government employees which were added to the bill by the conferees.

AMENDMENT No. 1

THE NATIONAL LABOR RELATIONS BOARD, INTERNAL ORGANIZATION AND LIMITATIONS UPON ITS DISCRETION

Increase in Board membership

The 1947 act increased the Board from three to five members and permitted panelization by authorizing it to delegate its powers to three of such members. The bill passed by the Senate at that time would have created a seven-member Board, but in conference the lower number was agreed upon. The size of the Board was increased in the hope that case handling might be expedited. Congress recognized that speed is of the essence in the determination of labor controversies. Delay in case handling tends to encourage use of self-help by the litigants which may take the form of strikes.

Even with the larger case load the five-member Board has been able to dispose of cases more rapidly than its predecessor. The average number of days between the issuance of the trial examiner's report and the Board's order is now about 170 days (p. 2593).1 When compared with the 137 days from filing of a charge to issuance of a complaint, the 40 days between issuance of complaint and close of hearing, and the 100 days between the close of the hearing and issuance of the trial examiner's report it is apparent that a real "bottleneck" exists at the Board level. The number of cases pending at various stages is also a clear indication that the Board may not expect any lessening of the number of cases it must consider. Mr. Denham testified (p. 1882) that there were 7,827 complaint cases pending on January 1, 1949, of which 2,093 were hold-over ones from the Wagner Act, 4,460 were charges against employers, and 796 against labor organizations. While most of these cases will be disposed of without Board action, they do not take into account the large volume of representation cases which the Board will determine.

In the amendment we have proposed, the seven-member Board agreed upon by the Senate in 1947 is again placed in the bill. Also, in accord with the recommendation of the Hoover Commission with respect to the membership on administrative agencies, we have required that no more than four of the members may be members of the same political party.

Review Section and trial examiners

Complaint case, which involve charges that either an employer or a labor organization has committed an unfair labor practice, are heard by trial examiners who are sent out from the Washington office on individual case assignments. After a trial examiner has completed a hearing he returns to Washington to prepare his conclusions and recommendations with respect to what the Board's order should be. While operating under the Wagner Act, the Board maintained a group of attorneys in what was called the Review Section. This section received the trial examiner's report and recommendations, and any exceptions to such which may have been filed by the parties, and prepared a summary of the case and draft of the Board's order. The effect, because of the backlog of cases and the impossibility of

1 This and all subsequent page references are to the transcript of hearings before the Senate Committee on Labor and Public Welfare on S. 249. Printing of the hearings has not been completed.

each Board member reviewing the record in each case, was to substitute the recommendation of the Review Section for the majority judgment of the Board members as individual judges in a great many cases. The Taft-Hartley Act abolished the Review Section and provided instead that each Board member may have individual legal assistants who will work with him in reviewing the cases assigned to his panel.

It was also frequently the custom under the Wagner Act for trial examiners to consult and advise with the Board on cases they had heard after exceptions had been filed and even after oral argument. On occasion attorneys from the Review Section consulted with trial examiners as to their report and recommendations prior to there having been issued. Believing that these practices were completely contrary to sound judicial procedure, Congress prohibited them in the 1947

act.

In the 1949 hearings the only witness who commented upon these reforms was the Board's Chairman, Paul Herzog. While disapproving of the prior practice of trial-examiner consultation with the Board, he opposed the writing of such a prohibition into the law. The case for the amendment respecting the review section rests primarily on the principle that judges, or quasi judges, under our system, make their own decisions as individuals and do not have them largely formed by some outside group of attorneys, and that ex parte consultation in a judicial process is abhorrent to our conceptions of justice. Sufficiency of evidence on review

The Taft-Hartley Act amended sections 10 (e) and 10 (f) of the Wagner Act only in regard to the weight given to findings of the Board by the reviewing tribunal. The 1947 act provided that the Board's findings "with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." S. 249 returns to the Wagner Act language, "if supported by evidence." During the hearings it was contended that the Taft-Hartley Act's language was unnecessary since it added nothing to the scope of review provided by section 10 (e) of the Administrative Procedure Act. It is clear that the framers of the 1947 act weighed and rejected that contention. (See pp. 26 and 27, S. Rept. 105, 80th Cong., 1st sess., and conference report, H. Rept. 510 at pp. 55 and 56.) It was the intention of Congress to preclude the substitution of alleged expertness of administrators for evidence in making decisions. Congress believed that the amendment would halt the tendency on the part of the courts not to disturb Board findings, even though they may be based on questions of mixed law and fact or inferences based on facts which are not in the record.

Conduct of hearings

Section 10 (b) of the Wagner Act, to which S. 249 would return, provided that in Board proceedings "the rules of evidence prevailing in the courts of law and equity shall not be controlling." In the TaftHartley Act this provision was changed to read "any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States."

There was no criticism of this provision of the 1947 act during the 1949 hearings. It is also a fact that it has been the practice in more