« PreviousContinue »
both parties to settle the dispute with the assistance, if need be, of the Federal Government.
As a matter of fact, although the language itself is not repeated in the bill before the committee, section 3 of title I of the Railway Labor Act does actually limit and take away with respect to the type of disputes there considered the right of the employees to strike. The language which was used this morning by Senator Vandenberg occurs in the Railway Labor Act with reference to that type of dispute.
In section 3 of the Railway Labor Act, which is specifically caught up into this bill, paragraph M, coming under the fourth division, reads as follows, in part (reading]:
A copy of the awards shall be furnished to the respective parties to the controversy, and the awards shall be final and binding upon both parties to the dispute except insofar as they shall contain a money award. In case a dispute arises involving an interpretation of the award, a division of the board, upon request of either party, shall interpret the award in the light of the dispute.
There is no way in which either party can refuse to go through with the machinery set up in the law if the other party invokes the machinery. So that in effect in the railway industry, for the settling of minor disputes arising out of applications or interpretations of existing agreements, there is compulsory arbitration. It escapes that form only insofar as it applies within the framework of basic agreements.
Applying that same machinery to the maritime industry, in which those basic agreements do not exist, there would be no way by which the seamen or any other group of employees coming under the law could avoid the arbitration of their disputes and no way in which they could avoid the necessity of accepting the decisions of the board if their employer desired to carry the dispute through this machinery. It would be, I think, without question, a compulsory arbitration of disputes, and it would mean that the right to strike has been taken away from them. That specific language does mean it. A distinction should be made, I think, between an agreement accepting voluntarily a limitation upon the activities of the union and a statement which imposes externally, even, the same limitation; that is to say, a limitation the same in words.
Most labor organizations are willing, where they have normal collective bargaining relationships with an employer, to voluntarily limit their activities in the character of strikes, boycotts, and so forth, where the relationships are amicable and where collective bargaining has been entered into for some period of time. To impose from the outside the same restriction in a situation where normal collective bargaining relations do not exist, would be a definitely and distinctly different thing; and I am inclined to believe, although I am not an attorney, that it would come within the prohibition applied to questions of compulsory arbitration law. It would seem to me that such a statute would probably not be constitutional under the decisions with reference to such laws.
The CHAIRMAN. Does anybody here have a copy of the proposal that Mr. Emerson made this morning for arbitration, taking a section out of the standard agreement? The other reporter has taken it away for the record. Will you, before you get through, say a word about that?
Mr. OLIVER. I shall be very glad to now, as well as I can remember it. As a provision in an agreement between the union and the employers it seems to me that is a model provision. It indicates a willingness on the part of the workers to surrender that chief weapon of theirs and to accept the findings of impartial persons.
The CHAIRMAN. Would not that presuppose some other arrangement to cover the basic problems of wages and hours, and so forth?
Mr. OLIVER. Yes. I beleve it presupposes the existence of collective bargaining relationships and basic agreements covering them, but not necessarily specific wage rates or the methods of determining wage rates and other working conditions. I do not believe it could function in a situation in which those agreements did not exist.
The CHAIRMAN. As I have thought about it myself since this morning, it seems to me that you would have to hitch up with that proposal of arbitration some of these basic things, would you not, if you were going to write it into law?
Mr. OLIVER. I should say if it were to be written into law with any prospect of its operating successfully, it would have to be limited to those sections of the industry in which collective bargaining lationships had been stabilized; and then it would be ineffective, because where collective bargaining provisions have been stabilized, that provision is already in effect. I understand it is in all the agreements, if I am not mistaken.
The CHAIRMAN. Yet, after all, even though these things are established, there might be disputes even after that.
Mr. OLIVER. There would be certainly a wide variety of disputes when, for example, wage rates were being changed. The normal agreement is that there will be a meeting of the employer and employee representatives and they will discuss and try to arrive at an agreement. Then there must be some provision for settling a dispute which cannot be directly negotiated. That is where the arbitration provision read by Mr. Emerson this morning would normally apply after the parties had been unable to arrive at a direct agreement; and in such a situation I think it indicates considerable statesmanship both on the part of the employer and the employee that so early in the history of collective bargaining there has been adopted that sort of a provision.
The CHAIRMAN. Yes; I was impressed by it myself.
Mr. OLIVER. The bill before the committee places upon the employers and employees in the maritime industry the duty of establishing boards of adjustment. The Railway Labor Act does not contain any provision of that sort. It seems somewhat inconsistent with the other provisions and may very easily interfere each with the other.
The CHAIRMAN. A few days ago I read very carefully the Guffey bill, and I can see that this bill which is before us had the same origin that the Guffey bill had. It is only a matter of detail where there are any differences between the two, and I thought then that there seemed to be some inconsistencies or difficulties which might arise out of this rather peculiar conglomeration.
Mr. OLIVER. I believe a great deal of such difficulties will of a certainty arise in any attempt to adapt this kind of machinery to a quite different line of work, as this is. If I may, I should like to say, before I go further with my discussion of the details of the bill, that I had a talk with a man who told me he had been instrumental in drafting this bill, and we discussed several features of it. I firmly believe that the bill has several features such as would render it ineffective in operation; but anything I say I do not want to be construed as implying any diabolical intention--
The CHAIRMAN (interposing). We understand that.
The CHAIRMAN. It is nice to have before us a witness who desires to be helpful.
Mr. OLIVER. I want to condemn the bill rather strongly, but in doing so I certainly have no intention to imply improper motives..
The CHAIRMAN. Taking a judicial attitude, one may differ from another and still consider the other man reasonable in his views.
Mr. OLIVER. The bill as proposed contains several what seem to be very gross faults in the way of an attempt to adapt the Railway Labor Act to the maritime industry. In particular, it proposes to establish an adjustment board under the mediation board of the Railway Labor Act, and to create it in accordance almost literally with the terms of section 3 of that act. That section 3 establishes a board of adjustment with specific divisions. Those divisions are expressed in terms of the railway industry. Every.thing with respect to the creation of that adjustment board ties in, yes, to the last detail, with the specific characteristics of the industry, such as the employers' organization, and the employees' organization, to lift that method out of the Railway Labor Act and attempt to apply it to the maritime industry. To attempt to create an adjustment board with four divisions which specifically deal with-well, the first division with disputes involving train and yard service employees, engineers and firemen, and so on, is an illustration of the almost absurd misfits which are concealed behind the general terms of the bill now before the committee. That is to say, when you simply take over section 3 of the Railway Labor Act, it sounds as though you are also taking over other parts of the section; and that section is entirely inapplicable so that it would be wholly meaningless.
Another illustration of the same thing, and which I think has more significance with respect to the effect of the bill, is that this section 3 of Title I of the Railway Labor Act, in creating the adjustment board, also establishes a method by which representatives of employees shall be selected, and in doing so it refers back to section 2. The National Labor Relations Act is, in form at least, preserved by parts of the bill before the committee, as to the power of the National Labor Relations Act with respect to the selection of employee representatives. But this particular section takes away from the National Railway Labor Act the power, or gives exclusively to the mediation board the power, to supervise the selection of employee representatives. It says that the adjustment board will have compulsory arbitration power. The only limitation upon the mediation board, I mean in the matter of employee representatives, is that contained in section 2 of the Railway Labor Act, which is referred to back in section 3.
Now, the parts of section 2 which are specifically excluded in this act, are those which prevent the use of yellow-dog contracts and company union representatives, and various other types of employerdominated boards or committees. So, a literal application of this bill would not work out.
Now, I want to repeat that I do not think this was with any diabolical intention. On the other hand, if I had been asked to draft a law which would leave wide open a means of subjecting legitimate labor organizations in the industry to company-dominated organizations, this is what I would have written into a bill. I am sure they did not have that intention at all, and yet they could not have better accomplished it.
These three paragraphs are among the ones which were introduced into the Railway Labor Act in 1924, as well as before that time, but from 1926 to 1934 there existed in the railway industry a great many company unions, many of them financed by railway managements. They could not be eliminated under the 1926 statute, although formerly at least they were, even though in violation of law, or I would say in violation of the spirit of the law. As a result of the existence of these company unions, the most of the machinery for the handling of disputes was bogging down, and the demand for a modification of the law became so great that in 1934 both of the particular provisions were inserted. And they are now excluded from this act. So, if the bill were adopted, and otherwise were not objectionable, it would carry forward all the difficulties in the law before the 1934 amendments:
The CHAIRMAN. And in order to be remedied, in accordance with the action we took then, we would have to reinsert them, wouldn't we, and even then we would be in trouble, you say?
Mr. Oliver. Yes, sir. But that particular insertion would be necessary to eliminate the gravest abuses in the railway industry, and they would still not be applicable.
The final section of the law to which I should like to call your attentionor, rather, before that there is one discrepancy that illustrates generally the impossibility of transferring such a statute as the Railway Labor Act. The bill before the committee would leave in effect, or rather would make applicable to the maritime industry section 2, paragraph 8, of the Railway Labor Act. It would not apply; in fact, it would specifically except paragraphs 4, 5, and 9, but section 8, which would apply, requires that the carriers post a notice which will show the contents of paragraphs 4 and 5, which are specifically excluded from this act.
And that sort of thing exists throughout this bill. It would take considerable time to point out the thousand-and-one inconsistencies contained in it. But the final point I should like to call to the attention of the committee is that section 1007 says:
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.
I understand that that was expected to save most of the functions now being exercised by the Board. As a matter of fact, in the actual application of such a statute to the handling of labor disputes, almost inevitably there will be a border zone, and probably a border zone so wide that it could include all disagreements that might come under the law, in which case it would be impossible to determine whether the National Labor Relations Boards, or the Mediation Board, or the Adjustment Board, had jurisdiction. Inevitably there would be differences of opinion as to which of these various agencies should handle a dispute. I can conceive of nothing more calculated to increase friction than to have simultaneous jurisdiction by two or more governmental agencies, because each party would try to carry his dispute to this one or that one which he thought might more satisfactorily handle it.
The CHAIRMAN. It is only human, I take it, that they would try to
Mr. OLIVER. I should think they would be not only human in trying to go as far as they could, but that they would try to take it to the best court they could find.
The CHAIRMAN. I see your point.
Mr. OLIVER. These particular points-and they are only a part of those I think might properly be considered-lead I think to the general conclusion that this bill attempts an impossible thing—to lift from one industry specific details of machinery which have been evolved in 40 years of collective bargaining, and apply it to another industry, which is very different in that there has been no collective bargaining and where the most of the specific provisions are wholly inapplicable.
In the second place, even though such an application were possible, the bill contains, in the specific provisions, elements which would defeat the purpose that I believe underlies the attempt here. That is, that it would create a greater degree of friction, would interfere with an amicable settlement of disputes in the industry, and would probably promote all the undesirable conditions that would otherwise be eliminated in a slow evolution of collective bargaining relationships.
I believe, Mr. Chairman, I have no other particular point I wish to bring up. The CHAIRMAN. We are very much obliged to you.
RMAN Senator MALONEY. Mr. Oliver, have you ever had any connection at all.with the shipping industry?
Mr. OLIVER. Only externally.
Mr. OLIVER. I have never been a member of a union. I have worked for some organizations; yes.
Senator MALONEY. You indicated that you had not covered all the points of the bill that you thought might need correction.
Mr. OLIVER. Yes, sir.
Senator MALONEY. I wondered if you would like to submit, later on, something to the committee for the record.
Mr. OLIVER. I could draw up a list of similar inconsistencies.
Senator MALONEY. I think that would be a good thing for you to do.
Senator ELLENDER. That came to my mind, and I was waiting to suggest it.
Senator MALONEY. I think that would be helpful to us.
Mr. OLIVER. I will be glad to do that if the committee so desires. I think, however, such suggestions would only go to the point of showing it is impossible to transfer such things. I do not believe it would be possible to correct this bill in all its details so as to make it applicable to this industry.
The CHAIRMAN. The labor section, do you mean?
Mr. OLIVER. Yes, sir. However, I will be glad to do that if you wish it done.
The CHAIRMAN. I believe Senator Maloney particularly wishes you to do that.
Senator MALONEY. I wish you would.
The CHAIRMAN. I was impressed this morning, Mr. Oliver, with section 8, I think it was, of the standard agreement. It does seem to me that that might be hitched up to some method of handling things