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concerned, they are guilty of violating this act. I can see nothing wrong or illegal in a labor-union contract requiring the employer to install safety devices and yet if you read this section it definitely makes it illegal.
Subsection 6 in my opinion is the cowcatcher for the rest of section 3; that is, the entire section. And if you will read this subsection 6, a man can be held guilty of violating the act for practically anything he might do that was contrary to the wishes of his employer. I honestly would not know how safely to operate to work for an employer under the terrific and broad powers as set forth in subsection 6.
Now, I will address myself to section 4 of the act: SEC. 4. Every contractor engaged in work connected with the prosecution of the war shall have the responsibility for taking any necessary action hereunder, including the duty to report promptly any such rules, practices, policies, or requirements, or their attempted enforcement or application, to the appropriate contracting agency of the Government, or to his prime contractor, if he is not himself a prime contractor. In the discharge of his obligations to the Government every contractor shall be responsible for achieving and maintaining maximum efficiency and continuity of operations, and most effective use of available manpower, and shall have authority to take such lawful disciplinary measures within his plant or among his employees as may be necessary to insure such maximum efficiency and continuity of operation.
Now, this section is one of the most vicious in the entire act. It may tend to suspend the provisions of the Wages and Hours Act, the National Labor Relations Act, the Railway Labor Act, and probably the provisions of the Manpower Commission. May I ask a question here as to what is the maximum use of manpower? Who is the judge as to what is the maximum use of manpower? Is the company the sole judge? Doesn't the labor union have an equal right and responsibility to determine what is the maximum use of manpower? Is it not a fact that there are many instances where a labor union has done its utmost to utilize the maximum use of manpower and has found an employer in many cases unwilling to do so ? Haven't we found in our experience that certain employers have been found to be guilty of Nazi and Fascist sympathy and haven't we had instances where such employers were definitely trying to decrease efficiency? I am not going to cite the cases, but I am quite sure we know there have been such instances and yet this section of the act makes the employer the sole judge.
The CHAIRMAN. Do you mean to say that you know of contractors producing war materials who would deliberately reduce production in the face of contracts that give them vast profits which they are making out of the contract?
Mr. KRIMSLY. Mr. Chairman, I know of none of my own personal knowledge.
The CHAIRMAN. That would eliminate the selfish motive there.
Mr. KRIMSLY. I personally to my own knowledge have not come in contact with such employers, but I have read in the newspaper and I am sure members of the committee have, that there have been discovered in this country certain subversive employers who have been doing all they can to interfere with maximum production. I have read it.
The CHAIRMAN. We read in the papers here where workmen on a job are charged with soldiering, you might say, and we have had
instances where they say, “Let's not work so fast; we will get done too quick” and the contractor once in a while connives at that kind of thing but that relates only to these cost-plus or fixed-fee contracts where they will get a fee regardless of how long the job runs or how long it takes and the more it costs the bigger and fatter their fees are. That kind of thing induces those things, but we cannot pay attention to what you see in the papers. What we would like to get are some facts.
Mr. KRIMSLY. I know there have been cases where employers have even been prosecuted. I have read of that and if you wish me to get a list of those I think I can get it for you.
The CHAIRMAN. You just said you did not know personally.
The CHAIRMAN. We read those things, too. We are investigating that in another branch of our work.
Mr. JOHNSON. Eliminating this section, you still think the section is bad?
Mr. KRIMSLY. I think it is definitely bad. It is a one-sided provision. It does not allow any cooperation between the employer and employee and furthermore it is a situation that is practically impossible to determine as to what is the maximum use of manpower. Suppose you should pass an act requiring that Congress be under obligation to live up to that particular section. How would
you do it? What is the yardstick? What is the measuring stick? There are so many human elements involved in industry that I would shudder as to its interpretation. And remember the employer is charged with that solely, and it is a penal statute.
Mr. Johnson. Your testimony is based on your knowledge of the coal industry, isn't it?
Mr. KRIMSLY. Mainly.
Mr. JOHNSON. I call attention to one bit of testimony we had here to see what your reaction to it is. There was a man here testified in the building of ships in working with riveters there is one man that works a blow torch that makes the holes and gets off the surplus steel and the way the work is arranged according to the rules that man only works 15 percent of the day. Is it your idea this kind of practice should be continued, assuming that is a correct statement of the facts!
Mr. KRIMSLY. Well, it seems as if that man is wasting a lot of valuable time.
The CHAIRMAN. What was that?
Mr. KRIMSLY. I said it seems as though that man is wasting a lot of valuable time if he is just working 15 minutes a day.
The CHAIRMAN. Fifteen percent.
Mr. KRIMSLY. Fifteen percent of the time. But I do not think we need any statute to correct that. I think the employer has adequate authority to discharge an employee who is loafing on the job.
Mr. JOHNSON. It is not a matter of loafing. The rules prescribe that this man can do only one certain thing. The man who is going to put the rivet in there, in the steel, hasn't the authority, I understand, under the rules today to do that little job. If that is the kind
of practice, if it is based on fact, I think it ought to be corrected so we can get the maximum out of the workman. After all, if a man works 8 hours a day I think you agree he should work 8 hours a day and not work 2 hours a day.
Mr. KRIMSLY. I think we all agree a man ought to work a full day. I do not think this act is going to bring that about.
Mr. JOHNSON. That may be true.
Mr. KRIMSLY. The failure to achieve and maintain maximum efficiency is a crime. This definitely smacks of the Gestapo and of the Ogpu. It borders on the liquidation that has occurred in Russia because of train wrecks and mine accidents. Likewise the failure to maintain continuity of operations is also a crime. What, may I ask, is a legitimate break-down of equipment and what is illegal! What is an illegitimate lack of supplies in industry? What is a legitimate shortage of manpower? What is legal and what is illegal? Likewise the failure to maintain the most effective use of available manpower is also a crime. The questions that may arise under this section are so multifarious as to hardly need mention. Should a man be employed on the night or day shift? Should a man be employed on one machine or another machine! Should this man be employed or should another man be employed? What of reasonable errors of judgment? This section is so drawn it is almost impossible of interpretation, and we must also bear in mind the fact that mistakes are made in work. No plant can operate on 100 percent efficiency, but according to this
section if he fails to operate thus he is guilty of violating the act. Suppose a section such as the one we have just read were to be applied to our military services and suppose an error of judgment on the part of a commander of a ship or a man leading his troops. Suppose he could be prosecuted for it. It would result in a very dangerous and I should say a very ridiculous situation. The way this section is drawn it leaves hardly any method of deciding what is legal and what is illegal.
We next come to the section starting with line 5 on page 5:
He shall be responsible for acts of his executive, administrative, professional, or supervisory employees within the scope of their employment,
That, we all understand, is the doctrine of respondeat superior and the doctrine of master and servant. It is in our basic law and really does not need repetition in this act. However, there is a comma after the word "employment," and I quote further:
and such employees shall not be eligible to membership in any labor organization engaging in collective bargaining with the contractor, nor shall such contractor be required to engage in collective bargaining with any labor organization including any of such employees in its membership.
Now, in the first place, this is all one sentence. The first part of the sentence deals with the doctrine that the master is responsible for the acts of his servants. The second part of the sentence has no relation whatsoever with the first part. But it is definitely an effort or an attempt on the part of the drafter of the act to outlaw any and all labor unions composed of exclusively supervisory employees or a labor union that has in its ranks supervisory as well as nonsupervisory employees. Now, we have always felt that this section is repugnant and it is a very dangerous provision of the statute. As the attorney for the Mine Officials Union of America I wish to call your attention to
the fact that our union is composed of supervisory employees. Those men feel that they have the right to organize themselves into a labor union, which they have done. Not only
that, there are in this country hundreds of thousands of workingmen who are members of labor organizations at the present time who have been engaging in collective bargaining for many, many years. These contracts that are now in existence are voided by section 4 of the act.
The CHAIRMAN. You mean of this bill!
Mr. KRIMSLY. Yes. It becomes illegal for an employer to enter into a contract or to continue to operate on a contract with any labor union that either has exclusively supervisory employees or that has nonsupervisory and supervisory employees in its ranks.
The CHAIRMAN. Then you contend that section 4 is unconstitutional in that it impairs the obligation of existing contracts?
Mr. KRIMSLY. It does that. But it goes even further. This bill, and I have been addressing myself to the bill from the standpoint of a maximum efficiency of manpower and to obtain increased production because of the war emergency, that after all is the intent and purpose of this bill, now, how can you effectively carry out the purposes and intents of the bill if you with one stroke of the pen void contracts that affect millions of working men, contracts that have been in existence for many, many years and in industries where the relationship between the employer and the employees has been splendid. On Saturday, Mr. Luhrsen testified on behalf of the Railway Brotherhood. He told you his union had 1,250,000 employees, supervisory and nonsupervisory employees. Read Section 4 of the act and see what it will do to contracts in existence between that union and the various railroads. I can cite you other instances. Mr. Hutching testified before the National Labor Relations Board several weeks ago representing the International Association of Machinists. That union functions mainly in the airplane plants. They have a membership exceeding 400,000 including supervisory as well as nonsupervisory employees. They have existing contracts with the biggest airplane manufacturers in the country. Section 4 voids these contracts. Will that increase the efficiency of the war effort? I will cite you the Master, Mates, and Pilots Union. This union has been in existence for over 50 years composed of masters, mates, and pilots who operate steamboats on the rivers and lakes of this country. It is a union composed exclusively of these supervisory employees. These men have the highest authority. They can imprison a man while they operate a ship. They can discipline their help. This union has been operating peacefully and efficiently and yet this section of the act will void their contract.
The printing industry has supervisory and nonsupervisory employees in the ranks. I can name dozens and dozens of unions involving I would say millions of employees wherein there are supervisory and nonsupervisory employees. And, of course, you know that there are instances where there are just purely supervisory employees.
Now, I can see nothing to justify a provision in this statute to prohibit a group of supervisory employees to band themselves together for the purpose of collective bargaining. If a man does not have the right then the fight is not worth fighting for. In Pennsylvania and all over the United States the coal companies have organized them
selves in associations for the purposes of collective bargaining. If it is right for the coal companies to so organize under strong associations, wherein is the wrong where there are supervisory employees who also organize and bargain with the company collectively?
Of course, section 5 of the act would go one step further than section 4. It is as follows:
SEO. 5. Any concerted action, or threats, by any persons whatsoever, designed to coerce any contractor to deal collectively with a labor organization, including such executive, administrative, professional, or supervisory employees in its membership, shall be unlawful and punishable hereunder.
The remarks I made with regard to section 4 of course apply to section 5 only section 5 is even a little stronger than section 4.
I think I have made my position clear. I have tried to analyze this statute practically and I feel it is definitely un-American. It is undemocratic and instead of helping the war effort I think it will seriously injure the war effort.
The CHAIRMAN. Are there any questions by members of the committee?
Thank you very much, Mr. Krimsly.
STATEMENT OF CHARLES R. FERGUSON, INTERNATIONAL FIELD
REPRESENTATIVE, MINE OFFICIAL'S UNION OF AMERICA
I will confine my remarks to those sections of the bill dealing with the rights of supervisory employees to organize and bargain collectively with their employers through representatives of their own choosing, particularly the supervisory employees now employed in the coal industry throughout the Nation. 'While I feel this bill is unconstitutional in that it strikes at the heart of our rights of free assembly and freedom of speech and is a striking example of class legislation in the most glaring form, I will pass those points on to more legal minds than mine.
The supervisory employees in the mining industry have sought to organize and have organized into a union of their own choosing. The union was organized not to bring chaos and dissension into the industry, as the operators declare, but to bring to this forgotten class
men some of the benefits of the industry that have accrued to the production employees through the orderly processes of collective bargaining, and written contracts secured for them down through the years by their great leader, John L. Lewis, and his competent staff.
Various reasons have been advanced here to show that to have the supervisory employees organized into a union would be an invasion of managerial rights. I say, and an examination of the history of the mining industry will show, that these employees are not part of management and have no voice in management. For example, they do not hire or fire. They have no voice in the policy-making meetings of the companies; in fact, even in the matter of extracting the coal on the various sections of the mine, they are governed by a plan which was projected from some central office and which they cannot alter without express authority from some superintendent or higher-up.
Many questions have been asked here as to where management begins; in the mines the line is definitely drawn at the superintendent, and no employee below him in rank has any managerial authority