Thus the third unfair labor practice makes it illegal for an employer, by discrimination in regard to hire or tenure of employment, to encourage or discourage membership in any labor organization.

This provision is merely a logical and imperative extension of that section of the Norris-La Guardia Act which makes the yellow-dog contract unenforceable in the Federal courts. If freedom of organization is to be preserved, employees must have more than the mere knowledge that the courts will not be used to confirm injustice. They need protection most in those cases where the employer is strong enough to impress his will without the aid of the law. And it is perfectly obvious that unfair pressure may be exercised by discrimination in terms of employment as well as by actual discharge. The fourth unfair labor practice, forbidding discharge or discrimination because an employee has filed charges or given testimony under this measure, is self-explanatory.

The second unfair labor practice makes it unlawful for an employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. It is provided, however, that the National Labor Relations Board may, in its discretion, permit employees to confer with the management during working hours without loss of time or pay. The intent here is to bring about in industry generally the same conditions which Congress decreed for the railways and businesses under trusteeship by the 1933 amendments to the Bankruptcy Act, the act creating the office of the Federal Coordinator of Transportation, and the 1934 amendments to the Railway Labor Act. If, unlike these other laws, the present bill uses the term " company-dominated union " instead of "company union ", it is simply to make it clear that there is no intent to outlaw the so-called " company union" when that term is used to include an independent and unhampered organization of employees confined by their own volition to the limits of one plant. The development of the company-dominated union has been one of the great obstacles to genuine freedom of self-organization. It is extremely significant that these spurious unions have sprouted most prolifically in the form of various employee representation plans devised after the enactment of the law designed to insure that very freedom. Over 69 percent of the plans now in existence have been inaugurated since the passage of the Recovery Act. It is worthy of note also that these plans are most prevalent in the largest plants. This means that in the very instances where the bargaining power of the employer is strongest the worker is least free to attempt to improve his position by unrestricted affiliation with others of his kind.

In fact, the most common characteristic of the company-dominated union is that the employer to which it is subject does not permit his workers to band together with others who are not serving the same company. Thus, workers may be prevented from dealing intelligently and effectively with problems of wages or hours that are regional or even national in scope. Certainly the employer who is enlisted in a powerful trade association, and who seeks to deny equivalent privileges to his employees, is acting unfairly and not in the public interest.

Another defect of the company dominated union is that, sometimes by express provision, but more frequently by imponderable economic pressure, the employees' selection of representatives is lim

ited to those who work for the same company. While a worker may be master of his tools, he seldom possesses the general knowledge of business conditions necessary to deal upon a parity with employers concerning terms of work. Nor can a man whose very livelihood depends upon maintaining the favor of his employer be outspoken and independent in representing the interest of employees. No just employer should want to impose such restrictions when he utilizes trained experts in personnel management, and when he certainly would not countenance that these experts should be answerable to anyone save himself.

The company-dominated union is frequently supported, in part or in whole, by the employer. I cannot comprehend how people can rise to the defense of a practice so contrary to American principles as one which permits the advocates of one party to be paid by the other. Collective bargaining becomes a sham when the employer sits on both sides of the table or pulls the strings behind the spokesman of those with whom he is dealing.

I have discussed the most common practices in connection with the company-dominated union. But interference may exist in the absence of any or all of these practices. It may consist of employer participation in the internal management or in the formation of the constitution or bylaws of a labor organization. Acts which would not constitute interference where separated parties are concerned may become interference when one party has the unique dependence attached to its source of livelihood. The question is entirely one of fact and turns upon whether or not the employee organization is entirely the agency of the workers. Employers may, of course, confer with the union; but they should not participate in its deliberations as an organic entity. The organization itself should be independent of the employer-employee relationship.

Since this bill is so permeated with principles of freedom, I have been astounded to encounter the wide-spread propaganda that it imposes new forms of restraints. It does not encourage a nationalunion monopoly. It does not manifest preference for craft or industrial unionism. As I have said, it does not even outlaw the company union, if by that term is meant solely the free and independent organization of workers who desire to confine their cooperative actions to a single company. Nor does it prevent employers from contributing to group welfare, recreation, pensions, or other benefits when such contributions are not used as a covert means of discrimination against workers who belong to organizations of their own choosing. But to argue that freedom of organization for the worker must embrace the right to select a form of organization that is not free is a contradiction in terms. There cannot be freedom in an atmosphere of bondage.

Furthermore, the terms of the bill do not compel or even encourage a man to join any union. Nothing could be more false than the charge that a gigantic closed shop would be forced upon industry. The much-discussed closed-shop proviso merely states that nothing in any Federal law shall be held to illegalize the consummation of closed-shop agreements when they are sought by the majority of the employees in the unit to be covered by them when made. This insertion is necessary to prevent repetition of these mistaken interpreta

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tions which have held that Congress intended to outlaw the closed shop when it enacted section 7 (a) of the Recovery Act.

I hold no brief for or against the closed shop. But there are many who believe that it is a device which at times may be necessary to advance and preserve the living standards of employees. It is legal in New York, in Massachusetts, and in many other States. Upon this subject no sufficient reason has been advanced why Congress should change the status quo.

While the bill explicitly states the right of employees to organize, their unification will prove of little value if it is to be used solely for Saturday-night dances and Sunday-afternoon picnics. Therefore, while the bill does not state specifically the duty of an employer to recognize and bargain collectively with the representatives of his employees, because of the difficulty of setting forth this matter precisely in statutory language, such a duty is clearly implicit in the bill. To attempt to deal with his men otherwise than through representatives they have named for such purposes would be the clearest interference with the right to bargain collectively. As the National Labor Relations Board said so well in the Houde Engineering Corporation case, decided August 30, 1934:

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The right of employees to bargain collectively implies a duty on the part of the employer to bargain with their representatives. Without this duty to bargain, the right to bargain would be sterile; and Congress did not intend for the right to be sterile the incontestably sound principle is that the employer is obligated by the statute to negotiate in good faith with his employees' representatives, to match their proposals, and to make every reasonable effort to reach an agreement.

All collective bargaining is simply a means to an end. That end is not the mere exchange of pleasantries between employer and employee, but rather the making of agreements which will stabilize employment conditions and set fair working standards. Students of industrial relations are in almost unanimous accord that it is practically impossible to apply two or more sets of agreements to one unit of workers at the same time, or to apply the terms of one agreement to only a portion of the workers in a single unit. For these reasons collective bargaining can be really effective only when workers are sufficiently solidified in their interests to make one agreement covering all. This is possible only by means of majority rule.

Majority rule, as set forth in the present bill, provides that—

representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.

This makes it clear that the guaranty of the right of employees to bargain collectively through representatives of their own choosing must not be misapplied so as to permit employers to interfere with the practical effectuation of that right by bargaining with individuals or minority groups in their own behalf after representatives have been picked by the majority to represent all. ·

At the same time, majority rule does not even imply that any employee can be forced to join a union except through the traditional method of a closed-shop agreement with the employer. And since

the bill specifically prevents discrimination against anyone either for belonging or for not belonging to a union, the majority will be quite powerless to make an agreement more favorable to themselves than to the minority who remain without. In addition, the bill preserves at all times the right of any individual or minority group to present grievances to their employer through representatives of their own choosing.

Those who contest majority rule as thus circumscribed are in truth avoiding the duty to bargain collectively by creating conditions which make collective agreements impossible. The National Labor Relations Board laid the issue bare in the Houde case, when it said:

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It seems clear that the company's policy of dealing first with one group and then with the other resulted, whether intentionally or not, in defeating the object of the statute. In the first place, the company's policy inevitably produced a certain amount of rivalry, suspicion, and friction between the leaders of the committees. Secondly, the company's policy, by enabling it to favor one organization at the expense of the other, and thus to check at will the growth of either organization, was calculated to confuse the employees, to make them uncertain which organization they should from time to time adhere to, and to maintain a permanent and artificial division in the ranks.

Proceeding to discuss the relative merits of so-called " proportional representation ", the Board said:

This vision of an employer dealing with a divided committee and calling in individual employees to assist the company in arriving at a decision is certainly far from what section 7 (a) must have contemplated in guaranteeing the right of collective bargaining. But whether or not the workers' representation by a composite committee would weaken their voice and confuse their counsels in negotiation with the employer, in the end whatever collective agreement might be reached would have to be satisfactory to the majority within the committee. Hence the majority representatives would still control, and the only difference between this and the traditional method of bargaining with the majority alone would be that the suggestions of the minority would be advanced in the presence of the majority. The employer would ordinarily gain nothing from this arrangement if the two groups were united; and if they were not united, he would gain only what he has no right to ask for, namely, dissention and rivalry within the ranks of the collective-bargaining agency. He could by lawful means ascertain the views of particular employees regarding proposals which are under consideration, but he would have no right to insist that the representatives of the majority should, in the absence of any agreement, advance their proposals only in conjunction with some other group.

This keen analysis by the Board did not carry it afield from trodden paths. The principle of majority rule has been applied regularly by governmental agencies and recognized repeatedly by laws of Congress. It was followed by the National War Labor Board created by President Wilson in the spring of 1918. It has been applied consistently by the Railway Labor Board created by the Transportation Act of 1920. The 1934 amendments to the Railway Labor Act of 1934 provided for it. On February 1, 1934, the President issued an Executive order authorizing the National Labor Board to hold elections, and provided substantially that those elected by "at least a majority of the employees voting" should "represent all the employees eligible to participate in such an election for the purpose of collective bargaining." Public Resolution No. 44, approved in June 1934, in that it provided for elections, must have contemplated majority rule. Even those employers who set up employee representation plans provide consistently that representatives for collective bargaining shall be elected by majority vote.

I might interpolate right there that, in a case in which the company union controlled, a protest was received from the National Labor Relations Board, because the minority of a particular group wanted also to negotiate with the employers. In other words, the majority rule is all right when a company union is established, but not when a legitimate union has the majority vote.

And the rule prevails in the conduct of business. The platform adopted by the Congress of American Industry and the National Association of Manufacturers on December 5 and 6, 1934, who, by the way, oppose the majority rule for legitimate unions, provides:

Under appropriate safeguards the approved competitive practices and prohibitions submitted by the properly defined majority of a group, trade, or industry should be binding upon the minority.

Freedom for the individual worker does not mean that he should be free from the orderly process of determining questions which prevail in business and in public affairs. That kind of freedom is the trade name for exploitation.

To determine the representatives of employees in case of controversy, the bill authorizes the National Labor Relations Board or its agents to hold election or to utilize any other appropriate method. Such determination by an impartial governmental body is the first prerequisite to establishing the foundation upon which collective bargaining must rest.

Having outlined the main substantive provisions of the national labor relations bill, I want to direct attention to one criticism that has been leveled against it. It has been claimed that in order to be fair, the bill should prohibit employees and labor organizations, as well as employers, from coercing employees in their choice of representatives. This argument rests upon a misconception of the needs which give rise to this measure. Violence and intimidation by either employers or workers are adequately prevented by the common law and do not require special treatment. This measure deals with the subtler forms of economic pressure. Such pressure cannot be exerted by employees upon one another to an extent justifying congressional action. But it can be directed against a worker by an employer who controls his job. It is this latter evil which has grown to a magnitude requiring a new public remedy. Furthermore, many courts have defined the term "coercion” to embrace all strikes or picketing, no matter how justifiable. They have drawn a line between legal and illegal coercion. Thus to prohibit employees from coercing their own side would not merely outlaw the undesirable action which the word connotes to us but would make the result reach to the loudly condemned Hitchman Coal case (245 U. S. 229) (1917), the law of the land. It would defeat the very freedom of selforganization which the bill is designed to protect. All legislation strives not for an abstract or paper equality but for conditions which will produce actual equality in the light of concrete facts.

At present the National Labor Relations Board suffers most seriously from lack of adequate enforcement powers. Of course, it may refer its decisions to the National Recovery Administration, and that agency is backed by powerful sanctions. But it is well known that these sanctions have scarcely been utilized, because the entire drift of N. R. A. has been toward self-government and self-enforcement by