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After the creation of such board and for thirty days after such board has made its report to the Maritime Commission, no change, except by agreement of the parties, shall be made by the parties to the controversy in the conditions out of which the dispute arose.

SEC. 1007. Except as provided in this title with respect to maritime employers and their employees, nothing herein shall be construed to repeal or amend any provision of the National Labor Relations Act or to restrict the powers and duties conferred upon the National Labor Relations Board by said Act.

SEC. 1008. If any provision of this title or application thereof to any person or circumstance is held invalid, the remainder of the title and the application of such provisions to other persons or circumstances shall not be affected thereby. SEC. 1009. There is hereby authorized to be appropriated such sums as may be necessary for expenditure by the Mediation Board in carrying out the provisions of this title.

The CHAIRMAN. We have a witness from the National Labor Relations Board, being Mr. Madden, the chairman of the Board. The committee shall be glad to have a statement from you, Mr. Madden.

STATEMENT OF J. WARREN MADDEN, CHAIRMAN, NATIONAL LABOR RELATIONS BOARD

Mr. MADDEN. Mr. Chairman, and ladies and gentlemen of the committee: I may say that the observations which I am going to make about title X of Senate bill 3078 are also applicable to title X of House bill 8532, the Bland bill in the House.

Hon. Joseph P. Kennedy, Chairman of the United States Maritime Commission, in his statement before the Commerce Committee of the Senate on December 8 at the hearing on S. 3078, said:

Inasmuch as the National Labor Relations Board has already been granted jurisdiction over questions growing out of unfair labor practices, freedom of association, and representation for purposes of collective bargaining in the maritime industry, and has already begun to issue certificates of labor representation, it is felt that it would be unnecessary to grant similar jurisdiction to the National Mediation Board. If a dispute arises among the employees of a water carrier as to representatives, the services of the National Labor Relations Board may be invoked for the purpose of investigating the dispute and determining who should represent the employees. From that point forward, the principles of the Railway Labor Act, as amended, would appear to be well adapted for application to the shipping industry.

From the above it appears that the Maritime Commission does not intend that the act shall cover in any manner inconsistent with the provisions of the National Labor Relations Act, either (1) unfair labor practices or (2) questions concerning representation, or the manner of (1) preventing such unfair labor practices or (2) investigating questions concerning representation.

Certain provisions of the bills, however, are drafted so as very materially to deviate from the intention above expressed by Chairman Kennedy. This may be due to difficulties in drafting; but in any event certain provisions as now set forth should be changed.

Before taking up these provisions, it should be pointed out that in section 1001 (a) defining "maritime employer" and section 1001 (b) defining "employee," the labor provisions would be extended beyond what is considered the maritime industry. Thus, by section 1001 (a) clause (4), the term "maritime employer" would include any person "engaged in the business of loading or unloading vessels, engaged in the transportation by water of passengers or property as set forth in clause (1) hereof."

This brings under the act employers of longshoremen and other persons working on the docks. Clause (5) of the same section includes in the definition "maritime employer" any person who "operates any equipment or facilities directly connected with the service set forth in clauses (1), (2), (3), and (4) hereof" and is to be read in the light of the further language of section 1001 (b), in which it is stated that it is "intended that this title should apply not only to those persons whose work may be exclusively in connection with the movement of passengers and property in the interstate and foreign commerce of the United States but also to those persons whose work may have such a close relation to the movement of such interstate and foreign commerce that the provisions of this title are essential and appropriate to secure the freedom of that commerce from interference and interruption." The scope of the labor provisions of the bills is thus far very broad and not readily ascertainable. They would seem to include teamsters, bus drivers, and might well include warehousemen, as well as express services and other activities even more remote from the maritime industry.

The provisions of the bills would, as now drafted, conflict with the intention expressed by Chairman Kennedy and with the National Labor Relations Act.

The CHAIRMAN. Mr. Madden, are you going to point out at some time the specific language which in your opinion should be changed? Mr. MADDEN. I think that will appear from my statement. We may desire to furnish you later perhaps with more specific language recommendations. But this statement will give you substantially the language changes which we think would cure the defects.

The CHAIRMAN. May I get your attitude? Am I to assume that you do not come here as antagonistic to the recommendation of the Maritime Commission, but that you have found ambiguities and so forth which in your opinion should be corrected?

Mr. MADDEN. That is exactly it. It seems to us that the bill as drafted does not carry out, or at least does not clearly carry out, the recommendation of the Maritime Commission in this respect.

The CHAIRMAN. And you, I hope, may help us to wipe out those ambiguities and to make the language to carry out exactly what the Maritime Commission has in mind.

Mr. MADDEN. We shall be very glad to do the very best we can.
The CHAIRMAN. Thank you.

Mr. MADDEN. Section 1002. This section includes by reference, among other things, section 2, paragraph third, of the Railway Labor Act. That paragraph provides as follows:

Third. Representatives for the purposes of this act shall be designated by the representative parties without interference, influence, or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence, or coerce the other in its choice of representatives. Representatives of employees for the purposes of this act need not be persons in the employ of the carrier, and no carrier shall, by interference, influence, or coercion seek in any manner to prevent the designation by its employees how their representatives of those who or which are not employees of the carrier.

It is also quite possible that an interpretation of the sixth, seventh, and eighth paragraphs of section 2 of the Railway Labor Act might be arrived at under the bills which would conflict with the unfair labor practice set forth in section 8 (5) of the National Labor Relations Act.

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Section 2, paragraph tenth, provides that

The willful failure or refusal of any carrier, its officers or its agents, to comply with the terms of the third, fourth, fifth, seventh, or eighth paragraphs of this. section shall be a misdemeanor

and thereafter provision is made for the prosecution of such offenses. in the district courts under the direction of the Attorney General.

It may be seen from the foregoing that the bills would include. provisions paralleling the unfair labor practices 8 (1), (2), and (3), but does so in the form of the 1934 Railway Labor Act, rather than in the form of the 1935 Labor National Relations Act; and would include provision for the enforcement of these unfair labor practices by the criminal processes of the district courts of the United States, rather than by the carefully devised administrative and court procedure of the National Labor Relations Act. It clearly appeared to Congress when the National Labor Relations Act was enacted for the maritime and other industries, that the definition of unfair labor practices, and the method of preventing them, set forth therein was more appropriate than the method set forth in the Railway Labor Act. There is no experience in the maritime industry since the enactment of the National Labor Relations Act which warrants any different conclusion now.

The railroad industry had gone through long experience in these matters, and was accustomed to the rights of employees set forth in that act. This is by no means true at this time in the maritime industry or in industries generally other than the railroads; so that there would seem no reason to single out the maritime industry as one in which the procedure of the National Labor Relations Act should be supplanted insofar as unfair labor practices are concerned by the criminal process of the district court, or by definition of those unfair labor practices in any manner different from those applicable to industry generally as set forth in the National Labor Relations Act. In the first place, complaints would have to be placed with the district attorneys instead of with the Labor Board, experienced in the particular problem and constantly building up a consistent body of labor law in this regard. In the second place, the issues of fact would be left to a jury instead of, in the first instance, to the administrative body, subject to review by the circuit courts of appeals on the record made before the administrative body. This would bring about a situation. where unfair labor practices prohibited with respect to industry generally are being prevented under a line of decisions going up through the Labor Board to the circuit courts of appeals, and a separate and perhaps divergent line of cases would be going up with respect to the maritime industry through verdicts of juries in the district courts. Since there is now actively functioning under a constitutional statute, under a procedure which has resisted all legal assaults and has been approved by the Supreme Court, the National Labor Relations Board, preventing those unfair labor practices which it must be assumed Congress also desires to have prevented in the maritime industry, it would only lead to confusion, uncertainty, and unnecessary duplication of administrative and judicial effort, to set out the unfair labor practices in the maritime industry, over which the Board has jurisdiction, for separate treatment under a system different from that applicable to industry generally.

It may also be added that such matters as interference with selforganization, the company union, discrimination with regard to union organization, and with respect to hire or tenure of employment, are matters better left to the national agency now validly functioning and tied in with the circuit courts of appeals of the United States, rather than to the probable divergencies of jury trials in the district courts throughout the United States.

From the foregoing discussion the conclusion is reached that in addition to those paragraphs of section 2 of the Railway Labor Act (fourth, fifth, and ninth) which are now excluded from section 1002 of the bills, there should also be excluded paragraph third of section 2 of the Railway Labor Act.

It appears that in section 1002, page 35, line 15 in S. 3078, and page 10, line 15 in H. R. 8532, the numeral 1102 is a mistake and should be 1001.

The CHAIRMAN. That is on page 35, line 15.

Mr. MADDEN. Yes.

Section 1003: This section of the bills provides for invoking the services of the National Labor Relations Board in determining questions of representation of maritime employees. In so doing, however, the section materially changes the existing procedure of the Board under the National Labor Relations Act. In the first place, by line 22, page 10 of H. R. 8532 and line 22, page 35 of S. 3078, it is provided that "it shall be the duty" of the National Labor Relations Board upon request of any party to a dispute concerning representation to determine the question and to certify the results of its determination. In so providing the bills deny to the Board that discretion which is presently lodged with it under the National Labor Relations Act as to whether such an investigation is proper and necessary.

The second basic change made by the bills in respect to the Board procedure for investigating and determining questions of representations lies in the fact that the bills provide for mandatory action by the Board at the request of the maritime employer as well as by an employee party to a dispute over such representation. Again, it is questionable whether under this section as now drafted in the bills, the National Labor Relations Board in conducting an investigation into a question of representation would not be bound to include in any ballot & company union regardless of how far that company union may have been the result of unlawful interference and domination by the employer.

The present provisions and machinery for the holding of elections or otherwise designating representatives under the National Labor Relations Act has been found currently satisfactory in the maritime industry. The Board has held scores of elections in the maritime industry and is currently engaged in the most elaborate elections ever held in industry in the United States, encompassing some 80 shipping lines on the east and Gulf coasts. The experience of the Board in the last 2 years in the maritime industry itself as to the feasibility and practicability of the provisions of the act with respect to representation indicates that it would be unwarranted and risky to change those provisions now.

Sections 1004, 1005, and 1006: Section 1004 provides that "disputes" growing out of "grievances" shall be handled in compliance with the provisions of any agreement, and so forth, or under the special adjustment machinery set up in subsequent sections of the bills.

Section 1005 provides that when a permanent National Board of Adjustment is necessary for the settlement of "disputes" growing out of "grievances" the Mediation Board is empowered to establish the National Maritime Adjustment Board to meet and make findings and awards.

Section 1006 provides that if a "dispute" is not adjusted by use of the Adjustment Board machinery, further special agencies may be set up for the investigation of such "disputes."

In order that it may be clear that the disputes and grievances referred to in these sections and by these sections required to be adjusted as provided for therein are not those concerning the basic rights of employees guaranteed by the National Labor Relations Act, a provision should be placed in the bills that nothing contained in these sections with respect to the settlement of disputes and grievances shall affect the unfair labor practices provisions of the National Labor Relations Act or the right of maritime employees to resort thereto. To completely effectuate this object and to carry out the intention of Chairman Kennedy, the first clause of section 1007, appear at lines 12 to 16, page 15 of H. R. 8532 and lines 12 to 17, page 40 of S. 3782 should be stricken. These last changes in the bills seem essential in order that employees in the maritime industry may not be denied the rights and remedies granted employees generally by the National Labor Relations Act and therein guaranteed to them as legally fixed statutory rights.

The CHAIRMAN. Mr. Madden, is there any conflict between the national labor relations law and the railroad mediation law? Are there conflicts between the two at present?

Mr. MADDEN. The National Labor Relations Act expressly exempts the railroad industry from its operation, so that the act does not touch the railroads, and the Board has nothing to do with railroad labor. So there is not any problem there such as there would be here, of having one statute and one board do part of the work, and another statute with another board to do the rest of it.

The CHAIRMAN. They are not "on all fours"?

Mr. MADDEN. No. They are not. This is perhaps the most vital difference. In the Railway Labor Act the unfair labor practices, such as interference by the employer with the selection of representatives by employees, discrimination with reference to hire and tenure of employment, are simply stated in the act as misdemeanors. And if the employer does these things to an employee, the employee must go to the district attorney and get the prosecution conducted under the regular facilities of the Department of Justice and the criminal courts. In the National Labor Relations Act the procedure is the administrative procedure under the Board; that is, the Board investigates and initiates a proceeding. The decision is made by the Board, subject to review by the circuit court of appeals of the United States. The consequence is that instead of the employer paying a fine or going to jail, as he might under the provisions of the Railway Labor Act, if he is found guilty he is ordered by the Board to cease and desist doing these things any more, and perhaps to make reparation in the way of paying back wages to the victim of the unfair labor practices.

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But the two approaches are quite essentially different in that respect. As we say in the statement, it would seem that the Conggress in enacting the latter legislation, namely, the National Labor

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